STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARDWALK AT APPLEYARD, LLC,
Petitioner,
vs.
CITY OF TALLAHASSEE and WOOD PARTNERS,
Respondents,
and
LEONI, LLC,
Intervenor.
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RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case on December 16-17, 2004, in Tallahassee, Florida, before Charles A. Stampelos, the assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Robert A. Lash, Esquire
Moody & Salzman, P.A. Post Office Drawer 2759
Gainesville, Florida 32602 For Respondent City of Tallahassee:
Linda R. Hurst, Esquire Office of the City Attorney City Hall, Box A-5
300 South Adams Street Tallahassee, Florida 32301-1731
For Respondent Wood Partners and Intervenor Leoni, LLC:
Silvia Morell Alderman, Esquire Akerman Senterfitt
106 East College Avenue, Suite 1200 Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue is whether Wood Partners' application for a Type B site plan (TSP040060) and deviations should be approved in light of the Joint Post-Hearing Stipulation of issues remaining for consideration.
PRELIMINARY STATEMENT
This matter began on September 13, 2004, when the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site plan requested by Respondent, Wood Partners. Wood Partners proposes to construct a 312-unit multi-family complex on a 20.01-acre site located north of West Tennessee Street, approximately 1,200 feet east of Appleyard Drive. The DRC also approved two deviations from the City of Tallahassee Land Development Code (LDC) in order to reduce the rear building set back from 25 feet to 15 feet on the northern boundary line, and to reduce the 30-foot Type D buffer requirement to a 15-foot Type B buffer on north property line.
The DRC action approved both deviations and the site plan, with conditions.
On October 12, 2004, Petitioner, Boardwalk at Appleyard, LLC (Boardwalk), filed a Petition for Formal Proceedings with the Tallahassee-Leon County Planning Commission (Planning Commission) challenging the DRC's decision.1
On or about October 18, 2004, Intervenor, Leoni, LLC, (Leoni), filed a Petition for Formal Proceedings with the Planning Commission and alleged that it was the owner of the property subject to the site plan application approved by the DRC. In the alternative, Leoni asked to intervene in the proceeding. On October 25, 2004, the Planning Commission's attorney determined that the allegations in Leoni's petition did not allege sufficient facts to establish entitlement to a quasi- judicial proceeding. However, there was no ruling on Leoni's request for recognition as an intervenor.
Pursuant the Planning Commission's By-Laws, on October 29, 2004, the Planning Commission Clerk referred the matter to the Division of Administrative Hearings (DOAH) requesting the assignment of an administrative law judge to conduct a hearing pursuant to Section 2-138, LDC.
The matter was scheduled for a hearing on December 13, 2004, in Tallahassee, Florida.
After a telephone hearing held on November 18, 2004, it was determined that the City was a proper party respondent rather than the Planning Commission and the City was substituted as a
party Respondent. It was also determined that Leoni may appear as an intervenor subject to proof of standing.
On November 24, 2004, Wood Partners requested that Boardwalk file a more definite statement with respect to provisions of the LCD, which Boardwalk contended required reversal or modification of the DRC's determination.
On November 30, 2004, Boardwalk filed a motion to continue the hearing scheduled for December 13, 2004. Wood Partners and Leoni opposed a continuance.
After a telephone hearing on December 1, 2004, Wood Partners' motion for more definite statement was granted, as was their motion to reduce the time for Boardwalk to respond to Wood Partners' first request to produce documents. Also, the hearing was continued to commence on December 16, 2004.
On December 7, 2004, Boardwalk filed a response to the more definite statement. On December 9, 2004, Wood Partners filed a motion to strike portions of Boardwalk's more definite statement.
A telephone hearing was held on December 14, 2004, to consider Wood Partners' motion to strike, which was ultimately denied, subject to several agreements of the parties regarding the scope of the more definite statement. Furthermore, ruling was deferred on Wood Partners' motion to strike Boardwalk's allegations with respect to traffic-related issues. (During the
hearing, Boardwalk withdrew its challenge based on traffic- related issues.)
On December 14, 2004, the City, Wood Partners, and Leoni filed a document entitled Pre-Hearing Stipulation. On the same date, Boardwalk also filed a document entitled Pre-Hearing Stipulation. Neither was actually a stipulation. During the telephone hearing held on December 14, 2004, the parties were requested to file an amended pre-hearing stipulation and the parties did so on December 15, 2004. The Amended Pre-Hearing Stipulation replaced the unilateral pre-hearing statements previously filed, and the hearing was conducted pursuant to the Amended Pre-Hearing Stipulation.
During the hearing, Wood Partners presented the testimony of Clay Campbell, P.E., and also called Mr. Campbell as a rebuttal witness. Leoni presented the testimony of Russell Dean Minardi as a standing witness. Wood Partners and Leoni's Exhibit 1, the deposition of John Frith, P.E., was admitted into evidence, for the limited purpose of establishing the scope of Mr. Frith's expert opinions. Wood Partners and Leoni adopted the City’s case, and Leoni adopted Wood Partners’ case.
The City offered the testimony of Dwight R. Arnold, Jr., Cherie Bryant, Thomas Printy, and Craig Barkve, P.E. The City's Exhibits 1-8 were admitted into evidence. After the hearing, the City filed an executed copy of the Recommended Order in
Capital City Hotels, Inc. v. City of Tallahassee and AHG Hotels, LLC, Case No. 02-4237 (DOAH January 22, 2003), admitted into evidence as the City’s Exhibit 3, and requested permission to substitute the executed copy. Without objection, the executed copy of the Recommended Order is admitted into evidence (City Exhibit 3) in lieu of the unexecuted copy.
Boardwalk offered the testimony of Mr. Frith, and recalled Mr. Arnold as a witness. Boardwalk had several exhibits admitted into evidence, which were later withdrawn.
The parties stipulated to the admissibility of Joint Exhibits (JE) 1-11, including subparts, e.g., (JE 8F1), which were admitted into evidence without objection. These exhibits appear in Volumes one through three.
The three-volume Transcript (T) of the hearing was filed with DOAH on December 21, 2004.
On December 27, 2004, the parties filed a Joint Post- Hearing Stipulation, narrowing the issues to be decided in this proceeding. Boardwalk dismissed its objections to several issues such as traffic concurrency and distribution; road widths, parking space dimensions and turnarounds; water and sewer concurrency; applicability and satisfaction of flood hazard requirements, preliminary plat requirements, and the requirements of Sections 5-10 and 5-11 of the LDC; and stormwater concurrency. Boardwalk’s remaining objections are:
The placement of a stormwater inlet under the trash compactor and related issues resulting from overflow of the stormwater pond on to Boardwalk’s property.
The approval of deviations to building setbacks and buffer standards.
Due Process.
Whether the site plan could have been altered so as to avoid the need for setback and buffer deviations.
On January 5, 2005, the Respondents and Intervenor filed a joint motion to strike portions of Boardwalk’s Proposed Recommended Order pertaining to references to Sections 5-10 and 5-11, LDC, in relation to issues raised regarding the placement of the stormwater inlet under the trash compactor. A telephone hearing was held on January 7, 2005, and Respondents and Intervenor, without opposition, were allowed to file supplemental proposed findings of fact and conclusions of law regarding these issues.
Each party filed a Proposed Recommended Order, which has been considered in the preparation of this Recommended Order. Boardwalk included a memorandum of law within its Proposed Recommended Order. Wood Partners and Leoni filed a Memorandum of Law, which was adopted by the City, which has also been considered. Wood Partners, Leoni, and the City filed a Supplemental Proposed Recommended Order, which has also been considered.
FINDINGS OF FACT
Parties
Petitioner, Boardwalk at Appleyard, LLP, is the owner and operator of a multi-family housing project on the property immediately east and adjacent to the proposed Alta Seminole project.
Respondent, City of Tallahassee, is a municipal corporation organized under the laws of the State of Florida. The City is the entity with authority to approve site plans within the City limits. The City conditionally approved the site plan for the Alta Seminole project through the action of the DRC. The City is a party by definition. See § 1-2, LDC; Art. IX, § 1(g) Tallahassee-Leon County Planning Commission Bylaws (Bylaws).
Respondent, Wood Partners, is the applicant for the Alta Seminole project site plan. The applicant is a party by definition. Id. Wood Partners has a contract to buy the Alta Seminole site, which is the subject of this proceeding.
Intervenor, Leoni, is the current owner of the property, which is the subject of this proceeding.
The Alta Seminole Project Site and Adjacent Area
Wood Partners submitted a Type B site plan application to construct a 312-unit multi-family complex on a 20.01 acre site located north of West Tennessee Street, approximately 1,200
feet east of Appleyard Drive (project site). The proposed project is a student housing complex, consisting of 11 buildings, i.e., nine apartment buildings, one leasing office, and one maintenance building. The project will offer 876 bedrooms and 935 parking spaces, including handicapped spaces. The density of the project is 15.6 units per acre.
The project site was recently used as a mobile home park. As such, the proposed project is a redevelopment.
The current zoning for the project site is MR-1, medium density residential, which allows the land use proposed in the site plan application.
To the north of the project site, from its east property line to 300 to 400 feet west are single-family homes currently used as student rental properties, now zoned MR-1. A railroad right-of-way was abandoned in the area between the single-family homes and the project site. (JE 5F4).
The project site is also bounded on the east by MR-1 zoning designation, and the Boardwalk property, medium density and multi-family residential. To the west and northwest of the project site is an area of industrial uses (e.g., Mackenzie Tank Lines) zoned CP, commercial parkway. The property to the south of the project site is zoned CP and has commercial parkway and commercial uses. West Tennessee Street, an arterial highway, is south of, but not adjacent to, the project site. Access to the
project site is from a driveway off of West Tennessee Street. (JE 5F4).
Alta Seminole Site Plan Application Process
General
The City’s LDC provides for review of site plans as Types A-D, according to characteristics set forth in the LDC. Wood Partners applied for a Type B site plan approval for the project site. Type B site plans are governed by Sections 9-151 through 9-153 and 9-155 of the LDC. Deviations to Type B site plans are governed by Sections 9-231 through 9-233, LDC.
Prior to submitting a site plan, an applicant must obtain a Land Use Compliance Certificate and may attend a pre- application conference. (The project received a land use compliance certificate.)
Upon Submittal of a Type B site plan, the site plan is distributed for review to four City departments, i.e., the Growth Management Department, the Public Works Department, the Utility Services Department, and the Planning Department. Each reviewing department reviews the parts of the site plan under its purview and submits a report with comments and recommendations and findings of fact on the site plan to the DRC members prior to the DRC meeting on the application. Representatives from each department comprise the DRC.
Alta Seminole Site Plan Application
On or about August 6, 2004, Wood Partners submitted a Type B site plan application for the project site. The application addresses numerous requirements of the LDC. Only those portions of the application at issue in this proceeding are discussed herein.
Deviations: Buffers and Setback
In its site plan application, Wood Partners requested two deviations from the City’s buffer and setback requirements found in Chapter 10, LDC. Wood Partners requested a reduction from the required 30-foot Type D buffer along the north property line in the vicinity of buildings 4, 5, 8, and 10, to a 15-foot Type B buffer with opaque fencing (ultimately of eight feet in height) in these areas. The second deviation was to reduce the required rear-building setback from 25 to 15 feet along the north property line in the vicinity of buildings 4, 5, 8, and 10 only. No deviations are requested to the east or south of the project site. See (JE 5F4, JE 2C, and JE 2D).2
Deviations from the development standards found in Chapter 10, LDC, may be granted by the DRC pursuant to Sections 9-231 through 9-233, LDC.
A developer may request deviations from the development standards found in Chapter 10, LDC, specifically, Sections 10-177 and 10-250, LDC. Wood Partners submitted a
narrative for both requested deviations, addressing the seven criteria for deviations found in Section 9-233, LDC. (The seven criteria and rationale for meeting them apply to the requested buffer and building setback deviations.)
Section 9-233, LDC, lists seven criteria for a deviation:
The deviation will not be detrimental to the public good or to the surrounding properties;
The granting of the deviation is consistent with the intent and purpose of chapters 9 and 10 and the comprehensive plan;
The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure;
The strict application of the requirements of chapters 9 and 10 will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed;
There are exceptional topographic, soil, or other environmental conditions unique to the property;
The deviation requested would provide a creative or innovative design alternative to substantive standards and criteria; and
The impacts associated with the deviation requested are adequately mitigated through alternative measures.
Deviations must be consistent with the Comprehensive Plan and may not create an adverse impact to the public health, safety, and welfare. § 9-231, LDC. The applicant has the burden to prove by a preponderance of the evidence that all conditions necessary to granting the deviations have been met.
§ 9-233, LDC.
On September 8, 2004, Cherie Bryant, Acting Chief, Land Use/Current Planning Division, of the Tallahassee-Leon County Planning Department, issued a Memorandum to the DRC members providing recommendations regarding the buffer and rear setback deviations. (JE 8F1). The Planning Department found in part “that the proposed reduced buffer could not sufficiently mitigate compatibility impacts of the proposed development upon adjoining duplex residential residences so long as the opaque fencing was no less than 8 feet in height.” The Planning Department recommended approval of this deviation subject to the condition that the buffer “include opaque fencing composed of durable material; the opaque fencing shall extend a minimum of 8 feet in height; vegetation shall be located on the external side of the opaque fencing (i.e., closest to the duplex residences); and vegetation shall be maintained by the property owner.” Id.
The Planning Department also found that “although the reduced setback does increase the potential for incompatible impacts upon the adjoining duplex residential residences to the
north, the proposed reduced buffering, if provided consistent with the Planning Department’s recommended conditions, could sufficiently mitigate these impacts. Consequently, the Planning Department recommends approval of this deviation subject to the condition that the Planning Department’s conditions pertaining to the buffer deviation request are adopted (included in the development order).” The Planning Department also offered a “Preferred Design Alternative”: “The site plan shall be revised to include the following annotation: ‘Prior to the commencement of construction activities on site, trees shall be protected through the construction of a hog-wire boundary fence anchored with steel posts located at or beyond the critical protection zone of these trees.’” (JE 8F2).
On September 13, 2004, the DRC conditionally approved the buffer and setback deviation requests. The buffer deviation request was granted conditioned upon an eight-foot opaque fence of durable material being built and vegetation placed outside the opaque fence (closest to the duplex residences) and maintained by the property owner. (JE 8G2).
The introductory sentence in Section 9-233, LDC, states that the granting of deviations from development standards is not favored and may only be granted if all of the seven criteria are met. However, Dwight R. Arnold, Jr., the City’s Land Use and Environmental Services Administrator,
testified that deviations are provided to allow departments to have flexibility to address conflicts with the LDC and to provide a way to balance conflicting provisions.
Boardwalk offered the testimony from its engineer, John Frith, P.E., that the site plan could have been designed differently, obviating the need for the deviations, i.e., by tightening up some of the spacing between the buildings and minimizing landscaping between the sidewalks and buildings. (The widening or narrowing of buffers in between the drive lanes would impact the ability for trees to be able to grow in those areas, which is a primary criterion.) However, Mr. Frith did not present an alternative design.
The deviation will not be detrimental to the public good or to the surrounding properties because the uses located to the north of the Alta Seminole project are comparable with the proposed use. § 9-233(1), LDC. The property to the north is used as student housing, similar to the Alta Seminole project, which is intended to serve students. In addition, there will be a 15-foot buffer, with an eight-foot opaque fence and plantings in the buffer. But see Endnote 2. Also, along the north property line where the deviation is being requested, there is an abandoned railway right-of-way with grading, a storm structure, a conveyance structure, and utilities.
Along the west boundary, there are existing trailer pads and trailers and cleared areas where the deviation is being requested. Industrial uses are also located west of the project site.
The granting of the deviation is consistent with the intent and purpose of Chapters 9 and 10 of the LDC and the Comprehensive Plan so long as the impact is mitigated by the opaque fence and plantings. § 9-233(2), LDC. The purpose of buffers is to protect uncomplimentary land uses. As noted, the uses to the north and west will not be adversely affected by the proposed use on the project site. (While the deviation requested is to buffer width, plantings in the remaining area will be done comparable to what would have been planted without the deviation, and opaque fencing along the northern deviation strip will increase opacity between the uses. Plantings will provide four and a half canopy trees per 100 feet, 1.8 under- story trees and 18 shrubs.)
Mr. Campbell testified that the deviations requested are the minimum to make possible the reasonable use of the land and have a project feasible for the developer. § 9-233(3), LDC. The deviations enable the developer to provide green space, protect trees, meet stormwater requirements, and provide larger interior landscape islands than most student complexes in the
City. The project is also designed to have the number of units feasible to the developer.
Further, a reasonable use of the land in this zoning district is 16 units per acre or 320 units. Wood Partners proposes 312 units. To reduce the size of the deviation requests, Wood Partners obtained a reduction in drive-out widths and compact spaces from the Parking Standards Committee prior to applying for the site plan approval. This reduced the need to further encroach on setbacks and buffers.
The requested deviations are the minimum that will make possible the reasonable use of the land, building or structure.
The strict application of the buffer and setback requirements will constitute a substantial hardship to the applicant that is not self-created. § 9-233(4), LDC. The developer is working with a redevelopment site and is required to preserve existing urban forest, and provide parking spaces adequate for the project, landscaping, and stormwater management.
The lack of urban forest available on the redevelopment site makes it difficult to meet urban forest criteria. As a redevelopment site, 6.85 percent of the project site must be delineated as urban forest. The site plan meets this requirement. (Mr. Firth felt that the urban forest
requirements for the project site could be mitigated for greater flexibility of site design. However, mitigation is only available if urban forest requirements cannot be met, which are met in this case.) Wood Partners had to be creative in the placement of buildings and other facilities in order to maintain the required urban forest areas. The weight of the evidence indicates this requires some encroachment into setbacks and buffers.
Moreover, the City’s LDC was recently revised to require internal landscaped islands to be a minimum of 12 feet wide when there are more than 14 parking spaces nose to nose. It makes the internal portion of the project greener, but also requires developments to be spread out. The deviations make it possible for the developer to meet the City’s requirements for the number of parking spaces and landscaping in the parking areas.
The City reviews hardships by looking at the request in light of whether one provision of the LDC is a hardship on the development in relation to another provision. If the deviations are approved, the number of units that are economically feasible can be constructed, together with adequate parking, necessary landscape islands, and necessary stormwater management. Meeting the strict requirements of the City’s
buffer and setback regulations would be a hardship that is not self-imposed.
The fact that the site is a redevelopment site and must preserve existing urban forest is an exceptional environmental condition unique to the property. § 9-233(5), LDC. See also Finding of Fact 31. It is difficult to set aside the requisite portion of the property as urban forest when a site is being redeveloped. In this case, it was 59,976 square feet. The areas where the deviations are being requested were previously developed, and are now developed. The proposed development was designed around existing trees, preserving them to satisfy the urban forest criteria.
Wood Partners proposes to construct three-story buildings, even though two stories would be less expensive to construct. This causes the units to be compacted, thus allowing the provision of required parking. The preservation of existing trees, opaque fencing, and planting provide a creative design alternative. § 9-233(6), LDC.
The impacts associated with the requested deviations are adequately mitigated by the opaque fence and vegetation.
§ 9-233(7), LDC.
Based on the weight of the evidence, Wood Partners satisfied the LDC requirements for the two deviations. Wood Partners demonstrated, by a preponderance of the evidence, that
it has met the seven criteria for the deviations. Boardwalk did not present persuasive evidence that Wood Partners had failed to meet its burden or that the deviations are inconsistent with the Comprehensive Plan or would have any discernible impact on the public health, safety, or welfare, including either the residents on Boardwalk’s property to the east or the residents to the north of the project site or the land uses to the west and northwest of the project site.
Stormwater Inlet and Compactor Placement
Wood Partners proposes to install a stormwater inlet under a rectangular trash compactor (not a dumpster) for the project. The compactor is located on the southern border of the project site and approximately 60 feet from and west of the entrance to the project site. (JE 5F4 and JE 5F6).
It is standard practice to install such an inlet at this location to help with wash down of those facilities after the solid waste from the compactors is picked up.
Stormwater, and other fluids or substances which may be generated from debris inside the compactor, flow in an east- to-northeast manner through a small collection pipe located under the eastern portion of the compactor into the main stormwater conveyance system which ultimately empties into the stormwater basin (pond) located in the southeast portion of the project site. Id. (The pond is a rate attenuation pond with
stormwater treatment, including a sand filtered system. It provides detention and treatment.3)
Although not required by the City, Wood Partners plans to install a trash or collection basket in the inlet (in the immediate vicinity of the compactor) to capture large debris that might enter into the inlet before it gets into the system. Small particles can flow through the device into the pond, but it has not caused problems for pond maintenance. Mr. Campbell’s firm has designed two other projects within two years, both student housing complexes, with compactors and inlets in the vicinity of the compactor. No problems have been identified.
The collection basket is not shown on the site plan, but Mr. Campbell represented that it will be done.
The LDC does not expressly prohibit a stormwater inlet in a compactor pad from discharging into a stormwater pond.
There is a difference between a dumpster and a compactor. Some compactors contain all debris and would not create leachate, others do.
Mr. Barkve explained that sometimes drainage inlets at compactors or dumpsters are connected to sanitary sewer lines; sometimes they are connected to the storm drain. (Mr. Barkve is a registered professional engineer employed by the City in the Growth Management Department. He reviews site plans for compliance with the City’s stormwater concurrency regulations.)
For the Alta Seminole project, it is Mr. Barkve’s personal feeling “that is better to put the drainage from the dumpster pad, where there would be leachate leaving the dumpster, that leachate be routed to the sanitary sewer and not the stormwater facility.” (Wood Partners does not propose to install a dumpster. See Finding of Fact 38.)
Mr. Barkve explained that if effluent from the inlet line flows directly into the pond, “[i]t is a degradation of the water quality.”
If the pond fills up completely and overflows above the flood stage level, the water, and potentially effluent, would flow to the south toward commercial property and to the Boardwalk property to the east.4 See Endnote 7.
Mr. Barkve would probably recommend routing the drainage from the dumpster pad to the sanitary sewer line later during the permitting of the project; not at this time when the site plan is being considered. Mr. Barkve further explained that recommendations regarding the connections of the inlet to sewer or stormwater would come after a review of greater detail. This occurs at the environmental permit stage.
The City is working on regulations to provide standards for dealing with drainage from dumpster and compactor pads, but no rule currently exists.
Further, the application includes pre-development and post-development drainage maps. (JE 3J16-17). The project site has a ridge line running approximately north to south through the middle of the property. (JE 5F6). In the pre-development condition, east of the ridge line, the stormwater generally flows south and east. West of the ridge line, the stormwater generally flows to the south and west. The stormwater must be managed in both directions. Pertinent here, Wood Partners was required to build a pond that will manage the runoff leaving the east side of the ridge. Id.
At this stage of the process, concurrency requirements require an applicant to show that the 25-year storm event5 does not cause an increase in the elevation along the channel depicted on Joint Exhibit 3J16. In the current (pre- development) condition, some site water flows east. With respect to post-development projected conditions, the proposal is to collect some of the water that will be in the parking lots and route it to the stormwater pond. (The project site is not in an area of special flood hazard.)
Mr. Barkve stated that the project’s stormwater management plan meets site plan requirements.6 (In fact, it will slightly reduce the flow coming off the project site going in an easterly direction.)
There is no persuasive evidence indicating that the stormwater pond is likely to overflow or that there would be adverse impacts to the Boardwalk property that might result if the stormwater pond overflows. Also, there is no persuasive evidence indicating that the proposed stormwater inlet, as shown on the site plan, is not appropriate or does not otherwise comply with site plan requirements.7
Due Process Considerations
Boardwalk contends that it was not afforded due process because the public, including Boardwalk, was not provided with recommendations regarding the Wood Partners’ project (site plan) one business day prior to the DRC meeting on September 13, 2004; by failing to base the DRC’s approval of the project only on the written staff recommendations; and by approving the deviations and site plan without requiring updated written recommendations and findings of fact, after receiving additional responses from the applicant.
Section 9-155(9)f., LDC, provides for “Development review committee meetings” for Type B review, such as the Wood Partners’ site plan.
DRC meetings “are administrative in nature and not subject to the quasi-judicial provisions of state statutes. No testimony may be received from any applicant or member of the public during the course of the [DRC] meeting.” Id. A DRC
member may ask questions of the applicant at the meeting on technical issues related to the site plan, limited to inquiries seeking clarification of material in the application. Members of the public have the opportunity to speak on the same technical issues. Id. Pertinent here,
[E]ach member of the [DRC] is responsible for providing proposed written findings of fact which identify whether a development meets the applicable criteria and standards of this section and those imposed by other codes, regulations, and adopted standards of the city. The proposed written findings shall be transmitted to other members of the [DRC], the applicant, and made available for public inspection at least one day prior to consideration be the [DRC]. The proposed written findings shall be the basis for a recommendation by each department review committee member to the other development review committee members to approve, approve with conditions, deny, or continue consideration of an application to a date and time certain.
Id.
The DRC considered the Alta Seminole site plan during
its meeting held on September 13, 2004.8 Prior to this meeting, staff reports were submitted by the Growth Management Department on September 3, 20049; the Utility Services Department on August 26, 2004; the Public Works Department on September 7,
2004; and the Planning Department on September 8, 2004. (JE 8C- F). Each staff report contained, in substance, findings of
fact. Id. Each report was available for public inspection more than one day prior to the September 13, 2004, DRC meeting.
Upon receipt of the staff reports, the applicant may contact staff in each reviewing department to address any comments and/or recommendations in the Department’s staff report. Members of the public may also discuss their comments with staff or they can do so in writing prior to the DRC meeting. Typically, comments received by the City after proposed DRC findings have been issued are communicated to DRC members by e-mail. If an applicant for, e.g., a Type B site plan, provides information to staff prior to a DRC meeting, they are typically taken to the growth management office and distributed to its DRC members. The new information may cause staff to change their recommendation, which is then brought up at the DRC meeting. This is typically done after a report has been written.
The City maintains that the reviewing departments are not required to prepare written comments or responses to information presented to the departments after the written staff reports are prepared and that the reviewing departments are not required to prepare more than one set of written findings, as in this case.
By e-mail dated September 8, 2004, Mr. Campbell sent Ms. Linda Dunning, P.E., responses to proposed DRC comments. (JE
5A). By letter dated September 8, 2004, (date stamped received by “Growth Management” on September 9, 2004), Mr. Campbell, in response to the pre-DRC comments, provided Mr. Barkve with the revised stormwater analysis for the project. “The changes included modification to the model to reflect the existing stormwater facilities at the Boardwalk complex for both the pre and post developed conditions. Review of the output data from the revised model concludes the proposed project has no adverse impact to the downstream conveyance system.” (JE 3J1).
Mr. Barkve stated that there was no written recommendation regarding the revised stormwater study available prior to the DRC meeting. Rather, he made a verbal recommendation following his review of the revised study.
On September 13, 2004, the DRC convened and approved the requested rear-building setback and buffer deviations and the site plan application, with conditions. The DRC’s decision is memorialized in a letter to Mr. Campbell of September 17, 2004. (JE 8G).
Any party with standing, as defined in Section 1-2, LDC, such as Boardwalk, may seek formal proceedings on a Type B site plan pursuant to Section 9-155(9)i., LDC, within 30 days of the rendering of the DRC action.
In this case, Boardwalk filed a Petition for Formal Proceedings on October 12, 2004, and after a determination of
standing was made, the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge and a de novo hearing, which was held in this case.
The DRC decision is treated as a staff report. Art. IX, § 5, ByLaws.
Proposed written findings and recommendations were timely transmitted to the members of the DRC and made available to the applicant and the public more than one day prior to the DRC meeting. However, it appears that the written findings were not the only bases for recommendations. It appears that recommendations were made during the DRC meeting based on supplemental information provided to staff by the applicant. Nevertheless, even if this is a procedural defect, it did not deprive Boardwalk of due process in light of Boardwalk’s participation in the de novo hearing. See In Re: Mallard Pond Subdivision, (Planning Commission July 28, 1997, Findings of Fact and Order)(JE 11A1).
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 2-138, LDC.
Standing
All of the parties in this case have proven their standing to participate in this proceeding. § 2-134, LDC.
Burden of Proof
Article IX, Section 5, of the Planning Commission Bylaws, addresses the presentation and acceptance of evidence at the hearing. The administrative law judge is not bound by strict rules of evidence, but may exclude irrelevant, immaterial, incompetent, or unduly repetitious testimony or evidence. Hearsay evidence will be accepted, but the administrative law judge shall not make a finding based solely on hearsay, unless the hearsay would be admissible under the Florida Evidence Code.
Article IX, Section 5, of the Planning Commission Bylaws, also addresses the burden of proof: “[T]he initial burden of proof shall be on the applicant. Once the applicant establishes his or her entitlement to approval by submittal of competent, substantial evidence supporting the approval. . ., the burden of proof will shift to the petitioner(s) to rebut the evidence submitted by the applicant. The decision under appeal [here the DRC decision] will be treated as a staff report.” The applicant has “the burden of demonstrating through a preponderance of the evidence that all conditions necessary to granting [deviations] have been met.” § 9-233, LDC.
Approval of the Site Plan and Deviations
The preponderance of the evidence in this matter supports the conclusion that the Wood Partners’ Type B site plan for a 312-unit multi-family project, is consistent with the Comprehensive Plan and meets all applicable regulations in the Land Development Code.
Boardwalk has failed to present persuasive evidence that the proposed Type B site plan for the Alta Seminole project, including the buffer and setback deviations, see Section 9-233(1)-(7), LDC, does not meet the criteria in the Land Development Code or that it is inconsistent with the Comprehensive Plan.
With respect to Boardwalk’s due process claims, the process leading up to the DRC’s decision to approve the Alta Seminole site plan did not deprive Boardwalk of due process. The DRC meeting was “administrative in nature and not subject to the quasi-judicial provisions of state statutes.” § 9-155(9)f., LDC. The DRC meeting was properly noticed and there is no evidence that Boardwalk did not have adequate notice and an opportunity to provide City staff and the DRC with comments and recommendations regarding the Alta Seminole site plan. Further, in light of Boardwalk’s challenge, the decision of the DRC is “treated as a staff report.” In other words, there is no presumption of correctness attached to the DRC decision. See
Boca Raton Artificial Kidney Center, Inc. v. Florida Department of Health and Rehabilitative Services, 475 So. 2d 260, 262 (Fla. 1st DCA 1985). Boardwalk is entitled to, and did participate as a party, in the quasi-judicial de novo hearing conducted in this case. Boardwalk did not prove that it has been deprived of due process.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered approving the Type B site plan and deviations, with conditions.
DONE AND ENTERED this 18th day of January, 2005, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
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 18th day of January, 2005.
ENDNOTES
1/ On October 19, 2004, the Planning Commission's attorney determined, based on the allegations in the Petition, that Boardwalk had standing subject to proof of standing in the quasi-judicial evidentiary hearing.
2/ Mr. Campbell explained that the reduced setbacks are located in the areas marked A and B on the “geometry plan” (JE 5F4). (T24-25). He marked the reduced buffers on the “geometry plan,” as areas C and D. Id. (T26-27, 24). The “geometry plan” provides for a 10-foot Type B buffer in the area marked C, which should be a 15-foot Type B buffer. (JE 5F4).
3/ The pond is appropriately sized.
4/ Mr. Barkve stated that “[s]omething above the 25-year event may cause it to overflow.” He stated that the potential for overflow of the pond would be “done in permitting.” See also Findings of Fact 51-52 for more details regarding potential impacts to the Boardwalk property that might result from stormwater pond overflow.
5/ Wood partners submitted documentation showing pre- and post- development models using synthetic rainstorms with durations of 1, 2, 4, 8, and 24 hours and frequencies of 2, 5, 10, 25, and
100 years. The modeling indicated that the proposed development will have no adverse off-site stormwater impacts. As noted above, something above the 25-year event may cause the pond to overflow. There was no evidence indicating the level of storm, which would likely cause the pond to overflow. According to Mr. Barkve, this issue will be analyzed during permitting.
6/ Mr. Barkve also stated that the proposed stormwater management plan will be required to comply with the “environmental management requirements” when Wood Partners applies for a permit for construction of the project. Mr. Arnold stated that the project met the City’s regulations for a preliminary concurrency certificate, including meeting all requirements for stormwater concurrency at the site plan review phase of the development.
7/ Nevertheless, it is recommended that the applicant design and construct the inlet/compactor unit so that effluent, if any, leaving the inlet/compactor unit, would not degrade the quality of the water, leading to and within the pond and potentially leaving the project site to the east and south.
8/ Notices of Type B site plans must be mailed to property owners within 500 feet of the project’s property lines. Notices of the Alta Seminole Type B site plan were mailed to property owners within 525 feet of the project’s property lines.
Boardwalk was on the mailing list to receive notice of the DRC meeting when the Alta Seminole project was scheduled for review and action. Notice of the DRC meeting was also published in the newspaper and the City posted a sign on the property. See, e.g., (JE8C4)(City Exhibit 2).
9/ The Growth Management Department recommended “continuance of the site plan application, in order to allow the applicant to address stormwater concurrency issues. The Department’s recommendation is based upon the finding that the application has not yet demonstrated consistency with the applicable provisions of Chapters 4, 5, 9, and 10 of the” LDC. (JE8C4).
See also (JE 8E3). Boardwalk dismissed its objection to the project based on “stormwater concurrency.” Joint Post-Hearing Stipulation, paragraph 1.g.
COPIES FURNISHED:
Cherie Bryant, Planning Commission Clerk Tallahassee-Leon County Planning Department
300 South Adams Street, 4th Floor Tallahassee, Florida 32301
Robert A. Lash, Esquire Moody & Salzman, P.A. Post Office Drawer 2759
Gainesville, Florida 32602
Linda R. Hurst, Esquire Office of the City Attorney City Hall, Box A-5
300 South Adams Street Tallahassee, Florida 32301-1731
Silvia Morell Alderman, Esquire Akerman Senterfitt
106 East College Avenue, Suite 1200 Tallahassee, Florida 32301
Chris Bentley, Esquire Planning Commission
2548 Blairstone Pines Drive Tallahassee, Florida 32301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the entity that will issue the Final Order in this matter.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 09, 2005 | Agency Final Order | |
| Jan. 18, 2005 | Recommended Order | The applicant proved that the proposed site plan deviations for a 312-unit multi-family complex located north of West Tennessee Street should be approved, with conditions. |
AMCOR INVESTMENT CORPORATION vs. SEMINOLE COUNTY BOARD OF COUNTY COMMISSIONERS, 04-003918 (2004)
PALM BEACH COUNTY AND THE TOWN OF PALM BEACH vs CITY OF WEST PALM BEACH, 04-003918 (2004)
222 LAKEVIEW LLC vs CITY OF WEST PALM BEACH, 04-003918 (2004)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. RICHARD ORMANDY, 04-003918 (2004)
