STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAN GILBERTSON,

Petitioner,

vs.

CITY OF TALLAHASSEE and TALLAHASSEE-LEON COUNTY PLANNING COMMISSION,

Respondents.

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) Case No. 02-4236

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RECOMMENDED ORDER

This case was heard on December 9, 2002, in Tallahassee, Florida, before William R. Pfeiffer, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Dan Gilbertson, pro se

459 West College Avenue Tallahassee, Florida 32301

For Respondent City of Tallahassee:

Linda R. Hurst, Esquire City Attorney's Office

300 South Adams Street City Hall, Box A-5

Tallahassee, Florida 32301-1731 STATEMENT OF THE ISSUE

The issue in this matter is whether Petitioner's application for a Type-A site plan should be approved.

PRELIMINARY STATEMENT

On August 29, 2002, Petitioner, Dan Gilbertson, filed a Type-A Site Plan Application with the City of Tallahassee's Growth Management Department (Department) seeking approval to construct moderate additions to two adjacent eating/drinking establishments located at the intersection of College Avenue and Macomb Street, in the City of Tallahassee, Florida. As part of the application, Petitioner seeks to deviate from the 25-foot minimum building setback requirement codified in

Section 10.3.O.2.d.3 of the City of Tallahassee's Zoning, Site Plan, and Subdivision Regulations (Tallahassee Code) and construct a deck behind Potbelly's. Petitioner also seeks to construct a deck behind The Painted Lady, for which the Department admits does not require a deviation from development standards.

On September 12, 2002, the Department denied the requested deviation to the minimum building setback and denied the site plan application, stating that the site plan is inconsistent with the standards and requirements of the City of Tallahassee's Environmental Management Ordinance, the Tallahassee Code, and the 2010 Comprehensive Plan.

On October 11, 2002, Petitioner timely filed a Petition for Formal Administrative Proceedings challenging the denial of the deviation request and site plan. A Determination of Standing

was issued on October 15, 2002, and on October 24, 2002, the Petition for Formal Proceedings was transferred to DOAH to conduct the formal proceedings. By Order entered herein on October 31, 2002, and the published Notice of Hearing, the matter was scheduled for formal hearing on December 9, 2002. On December 2, 2002, the parties filed a joint pretrial statement.

At the formal hearing, Respondent presented the testimony of City employees Anoch Lanh, Senior Planner, Growth Management Department; Karen Brown, Administrative Sergeant, Tallahassee Police Department; Michael E. Sprayberry, Engineer II, Traffic Engineering Division; David Wayne Tedder, Chief, Land Use Division of Planning Department; and Wade L. Pitt, II, Land Use Administrator, Growth Management Department. The City offered

11 exhibits which were accepted into evidence.

Petitioner appeared pro se, cross-examined each of the Respondent's witnesses, and testified on his own behalf.

Petitioner offered seven exhibits which were accepted into evidence.

Petitioner claims that the denial of the deviation and site plan prevents improvement, enhancement, and revitalization of the property; and prevents him from providing handicap accessibility and improved bathroom conditions on the site. In addition, Petitioner alleges that the Department improperly considered unsubstantiated information.

The two-volume Transcript of the hearing was filed on January 13, 2003. Respondent filed a Proposed Recommended Order on February 5, 2003, and Petitioner filed a Proposed Recommended Order on February 21, 2003, which have been duly considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Dan Gilbertson, has owned and operated Potbelly's restaurant, a student-oriented eating/drinking establishment, located at 459 West College Avenue, since 1994. Petitioner also operates a similar establishment known as The Painted Lady located directly adjacent and to the east of Potbelly's.

2. Potbelly's and The Painted Lady are within the Institutional, Cultural, and University Transitional (DI) Zoning District. Surrounding uses to Petitioner's property include a Florida State University parking lot across Macomb Street to the west of the site, a privately owned parking lot across College Avenue to the north, a fraternity house to the east, and an apartment complex to the south.

3. The existing Potbelly's and Painted Lady structures were constructed prior to the adoption of a 25-foot minimum building setback from Macomb Street codified in Section 10.3.O.2.d.3, Tallahassee Code. The Potbelly's building is

   partially within the 25-foot setback and is considered a pre- existing, nonconforming structure.

4. Potbelly's is licensed to operate a full service kitchen while The Painted Lady is authorized to serve previously prepared food. Both parties agree that Potbelly's and The Painted Lady are licensed to serve alcohol within the premises identified in Respondent's supplemental exhibit.

5. Respondent, The Tallahassee-Leon Planning Commission, is the legal entity responsible for reviewing and approving or denying applications for site plans.

6. In September 2002, Petitioner submitted a site-plan application seeking to add a deck, handicap ramp, and bathrooms in the southwest area of the Potbelly's property and a deck behind The Painted Lady. The site plan application for the additional deck, restrooms, and handicap ramp behind Potbelly's seeks a deviation from the 25-foot setback requirement.

7. In its application, Petitioner included architectural drawings of the premises but did not attach engineering drawings. Petitioner also enclosed a copy of a previously issued order dated June 14, 2001, from the Tallahassee-Leon County Board of Adjustment and Appeals granting a variance to the setback requirement for an existing deck on the west side of Potbelly's.

8. Pursuant to Section 23.1, Tallahassee Code, Respondent may grant the deviation request to development standards only if it is consistent with the comprehensive plan and creates no adverse impact on the general health, safety, and welfare of the public.

9. Petitioner's site plan application addresses less than 60,000 square feet and is subject to Type-A site plan review. Accordingly, Petitioner's application was reviewed by City staff including members from the Growth Management Department, Planning Department, Fire Department, Police Department, Utilities Department, and Public Works Department including Solid Waste and Traffic Engineering. Upon review, in October 2002, the Department advised Petitioner that his application had been denied. Petitioner timely appealed the decision.

   Code Deviation Criteria

   
   

10. Pursuant to Section 23.3, Tallahassee Code, a request for deviation from the existing development standards is generally not favored and may only be granted upon a showing by the applicant that seven specific criteria have been met by a preponderance of the evidence.

11. First, the applicant must demonstrate that the deviation will not be detrimental to the public good or to the surrounding properties. The evidence in this case demonstrated that, although the Tallahassee Police Department (TPD) reported

    that it received approximately 17 complaints over a two-year period for noise, physical disturbances, underage alcohol consumption, and other offenses, approximately 1 every 50 days, the frequency and severity of complaints has significantly declined. Further, Petitioner employs significant private security to curtail adverse incidents and has routinely attempted to hire off-duty TPD officers, but to no avail. There has been inadequate showing that a reasonable increase in the size and occupancy of Petitioner's premises will be detrimental to the public good or to the surrounding properties.

12. Second, Petitioner must demonstrate that the requested deviation is consistent with the intent and purpose of the Zoning Code and the Comprehensive Plan. Respondent admits that "the intent of the DI zoning district is to provide a transition between downtown and the two universities, and to encourage pedestrian friendly or pedestrian oriented activities and development." Respondent further acknowledges that the intent of the 25-foot setback from Macomb Street and the 35-foot setback from College Avenue is to provide a transition for pedestrian activities along the roadways, a reduced scale of buildings along the pedestrian accesses and room for landscaping for enhancement of pedestrian activities.

13. The evidence demonstrated that Petitioner's adjacent restaurant/bars primarily target and attract college students in

    the area and are pedestrian friendly. While the structures preceded the setback requirements, Petitioner has comported with the intent of the Tallahassee Code and Comprehensive Plan by enhancing vehicular and pedestrian access to the premises and improving their visual aesthetics.

14. Third, Petitioner must demonstrate that the requested deviation is the minimum deviation that will make possible the reasonable use of the land, building, or structure. While the restaurant/bars maintain consistent business, additional patrons and/or a diversified, multi-use eating/drinking establishment, given the area, is a reasonable use of the land. Petitioner's deviation request is the minimum deviation necessary to garner the additional and diversified business.

15. Fourth, Petitioner must demonstrate that strict application of the zoning requirements would constitute a substantial hardship that is not self-created or imposed. Strict application and unreasonable adherence to the 25-foot setback requirement, given the minimal external expansion requested and the fact that the existing structures currently extend into the setback, create a substantial and unnecessary hardship upon Petitioner's expanding business.

16. Fifth, Petitioner must demonstrate whether there are any exceptional topographic, soil, or other environmental conditions unique to the property. The parties stipulate that

    there are no such environmental features on the site and the criterion is not relevant to Petitioner's application.

17. Sixth, Petitioner must demonstrate that the requested deviation would provide a creative or innovative design alternative to substantive standards and criteria. Petitioner has shown that he intends to moderately expand the student- oriented, pedestrian friendly, eating/drinking establishment in the college campus area utilizing a consistent, creative, and attractive design alternative to the setback requirement.

18. Finally, Petitioner must demonstrate that the impacts associated with the deviation will be adequately mitigated through alternative measures. Any impacts associated with the deviation are de minimus, however, Petitioner has agreed to adequately mitigate such impacts. First, Petitioner has constructed noise insulators on the south fence of the property to filter out excess sound to the apartment dwellers. Petitioner has also agreed to provide additional security when necessary and plans to significantly improve the visual aesthetics on the southwest side of the building.

19. Respondent argues that Section 14.6 of the Zoning Code requires one loading berth for any site up to 8,000 square feet receiving goods and merchandise via motorized vehicle. The evidence demonstrates that Petitioner's property contains two

    parking spaces, identified as a loading berth, located directly in front of Potbelly's.

20. Respondent, however, persuasively argues that the existing dumpster on the Potbelly's site does not comply with the City's Solid Waste requirements. Solid Waste and the Tallahassee Code require each site to provide sufficient space for a dump truck to enter the site, collect the refuse, and exit the site without backing into traffic. Although Waste Management empties the refuse at approximately 3:00 a.m., the current location of the dumpster presents a significant safety hazard which Petitioner must eliminate.

21. Respondent argues that it cannot determine whether Petitioner's proposal meets the Floor Area Ratio requirements for the DI zoning district. The evidence presented during the hearing demonstrates that Petitioner's proposal satisfies the requirements.

22. While the Tallahassee-Leon County Board of Adjustments and Appeals of Petitioner's previous approval of the existing deck variance is interesting, it is not relevant to this case.

23. The formal proceeding before the Administrative Law Judge was properly noticed in the Tallahassee Democrat on November 24, 2002.

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

24. Pursuant to Section 24.3.C., Tallahassee Code, the decision of the Growth Management Director becomes final

    15 calendar days after it is rendered unless a party files a notice of intent to file a petition for formal proceedings in accordance with the bylaws and completes the application by filing a petition for formal proceedings within 30 calendar days after the decision is rendered. In this case, Petitioner timely filed a Petition for Formal Proceedings and has standing to contest the decision.

25. Pursuant to the same section, DOAH has jurisdiction over the subject matter and the parties hereto and must conduct a de novo quasi-judicial proceeding to determine whether the application should be approved or denied.

    Burden of Proof

    
    

26. While Section 24.6, Tallahassee Code, fails to specifically address the burden of proof in a Commission site plan proceeding, Section 23.3, Tallahassee Code, provides that the "applicant shall have the burden of demonstrating through a preponderance of the evidence that all conditions necessary to granting the deviation have been met." The requirement is consistent with the general rule that the party seeking the affirmative of the issue should logically bear the burden of

    proving by a preponderance of the evidence that it is entitled to the requested relief. See, e.g., Durward Neighborhood

    Assoc., Inc., et al. vs. City of Tallahassee, et al., DOAH Case No. 98-4234 (City of Tall.-Leon Cty. Plan. Comm., October 5, 1999).

27. Accordingly, Petitioner is required to present a prima

    
    

    facie case of entitlement to a deviation, at which time the burden shifts to the Respondent to demonstrate sufficient proof that the deviation should not be granted.

28. The evidence presented in this case supports a conclusion that Petitioner has demonstrated by a preponderance of the evidence that the requested deviation is appropriate and satisfies the 7 criteria within Section 23.3, Tallahassee Code. The requested deviation is not inconsistent with the Zoning Code provisions for the DI Zoning District related to pedestrian corridors nor the Comprehensive Plan. There is no credible evidence that the proposed deviation will adversely impact the general health, safety, and welfare of the public.

29. It should be noted, however, that Petitioner's current dumpster location violates the City's Solid Waste requirements and is a very real and present danger that requires immediate attention.

30. Pursuant to Section 24.5, Tallahassee Code, the Planning Commission shall make a final determination relating to

the proposed deviation upon review and consideration of the Recommended Order by the Administrative Law Judge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order approving Petitioner's Type-A site plan and requested deviation contingent upon Petitioner's safe and acceptable relocation of the dumpster.

DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003.

COPIES FURNISHED:

Sylvia Morell Alderman, Esquire Katz, Kutter, Haigler, Alderman,

Bryant & Yon, P.A. Post Office Box 1877

Tallahassee, Florida 32302

Dan Gilbertson

459 West College Avenue Tallahassee, Florida 32301

Linda R. Hurst, Esquire City Attorney's Office

300 South Adams Street City Hall, Box A-5

Tallahassee, Florida 32301-1731

Jean Gregory, Clerk

Tallahassee-Leon County Planning Commission City Hall

300 South Adams Street Tallahassee, Florida 32301-1731

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 02-004236

Orders for Case No: 02-004236