STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN and NANCY FRUIN; FRANCIS )

C. and KAREN W. SKILLING; )

THOMAS J. BIXLER; JACOB D. )

and SHEILA S. VARN; and )

NAOMI S. PERKINS, )

)

Petitioners, )

)

vs. ) Case No. 98-4513

)

CITY OF TALLAHASSEE and )

T. S. BUILDERS, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on March 18, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioners: David W. Moye, Esquire

Jacob D. Varn, Esquire Fowler, White, Gillen, Boggs,

Villareal, & Banker, P.A.

101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301

For Respondent, City of Tallahasse:

Linda R. Hurst Assistant City Attorney City of Tallahasee

City Hall

300 South Adams Street Tallahassee, Florida 32301

For Respondent, T.S. Builders, Inc.:

Donna S. Biggins, Esquire Ronald A. Mowrey, Esquire Mowrey & Minacci, P.A.

515 North Adams Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Meridian Place Limited Partition meets all criteria for a limited partition under the City of Tallahassee law.

PRELIMINARY STATEMENT

On or about September 10, 1998, Newton S. Babcock, as agent for Respondent, T.S. Builders, Inc., submitted a Limited Partition Application to Respondent, the City of Tallahassee.

T.S. Builders, Inc., pursuant to the application, proposed the subdivision of Lot 1 of an unrecorded subdivision by Frank Glenn dated February 12, 1967, into three lots of less than 0.5 acres each.

By letter dated September 17, 1998, Gordon H. Hansen, Land Use Planner for the City of Tallahassee, advised Mr. Babcock that the Limited Partition Application was conditionally approved.

Mr. Hansen also indicated that a letter addressing environmental issues would be forthcoming. On September 22, 1998, Linda Dunning, an engineer with the City of Tallahassee, informed

Mr. Babcock of additional conditions relating to environmental features of the site.

On or about October 1, 1998, Petitioners, John and Nancy Fruin, Francis C. and Karen W. Skilling, Thomas J. Bixler,

Jacob D. and Sheila S. Varn, and Naomi S. Perkins, filed a Tallahassee-Leon County Planning Commission Notice of Intent to File a Petition for Formal Proceeding with the City of Tallahassee. The Tallahassee-Leon County Planning Department reviewed the notice and decided that the matter should be referred to the Division of Administrative Hearings.

On October 8, 1998, the City of Tallahassee filed the Notice of Intent with the Division of Administrative Hearings. The City of Tallahassee requested the assignment of the matter to an Administrative Law Judge of the Division of Administrative Hearings. This request was made pursuant to Section 24.6, Article XXIV, Chapter 27 of the City's Code, the City's Zoning, Site Plan and Subdivision Regulations, and a contract entered into between the City of Tallahassee and the Division of Administrative Hearings. The contract was entered into pursuant to the authority of Section 120.65(7), Florida Statutes. The matter was designated Case Number 98-4513 and was assigned to the undersigned.

On October 15, 1998, Petitioners filed a Petition for Formal Administrative Proceeding with the Tallahassee-Leon County Planning Department. On January 5, 1999, Jean Gregory, Clerk of the Tallahassee-Leon County Planning Commission filed a copy of the record of this matter before the City of Tallahassee with the Division of Administrative Hearings. Included with the record was a copy of the Petition for Formal Administrative Proceeding filed by Petitioners.

By Notice of Hearing entered December 11, 1998, the formal hearing of this case was scheduled for January 8, 1999. On December 21, 1998, T.S. Builders, Inc., requested a continuance of the hearing. The continuance was granted without objection. By Second Notice of Hearing entered January 12, 1999, the formal hearing was rescheduled for March 18, 1999.

At the formal hearing T.S. Builders, Inc., presented the testimony of Steve Skipper, Newton Babcock, and Richard Musgrove.

T.S. Builders, Inc., offered 15 exhibits which were marked as "T.S. Builders' Exhibits." All were accepted into evidence.

The City of Tallahassee presented the testimony of Gordon Hanson, Susan Tinski, and Robert L. Herman. The City of Tallahassee offered 5 exhibits which were marked as "City Exhibits." City Exhibits 1, 2, and 5 were accepted into evidence. City Exhibits 3 and 4 were withdrawn.

Petitioner, Jacob D. Varn, testified on behalf of Petitioners. Petitioners offered 5 exhibits which were marked as "Petitioners' Exhibits." All were accepted into evidence.

On March 24, 1999, Petitioners filed a Motion to Reopen Evidence. The City of Tallahassee filed a response to the motion indicating it had no objection if the parties were allowed to call witnesses to respond to the evidence Petitioners wished to offer. T.S. Builders, Inc., filed a response objecting to the motion. By Order entered April 14, 1999, the motion was denied. The additional evidence Petitioners wished to offer was in rebuttal to the testimony of Susan Tinski. Although Ms. Tinski was not identified as a witness prior to the commencement of the

hearing of this case, she was allowed to testify because Petitioners failed to show any prejudice would result from allowing her to testify. Petitioners had undertaken no discovery prior to hearing concerning the potential testimony of witnesses whose names were disclosed, so it was concluded that they would be in the same position as to Ms. Tanski's testimony as they were for the witnesses whose names were disclosed. Additionally, although Ms. Tanski's name may not have been disclosed, Petitioners were well aware of the fact that the preservation of slopes on the property at issue in this case was an issue to be addressed at the hearing. They should, therefore, have been prepared to present any evidence to support their contention that the slopes on the property were not being properly preserved by

T. Builders, Inc., before the hearing began.

On May 24, 1999, Petitioners filed a second Motion to Reopen Evidence. T.S. Builders, Inc., filed a response objecting to the motion and the City joined in that response. This second attempt to reopen also involved the issue of slopes on the property.

Petitioners have requested that a document similar to the site plan attached to T.S. Exhibit 7 be accepted into evidence. After a review of this document, it is concluded that nothing on the face of the document is not already in evidence. The information not admitted in evidence which the document does support are the calculations made by Mr. Varn after the hearing of this case. It is too late for Petitioners to offer evidence which they had every opportunity to prepare before, and offer at, the formal

hearing of this case. The second Motion to Reopen is hereby denied.

A Transcript of the hearing was filed on April 9, 1999.

Proposed orders were, therefore, due on or before April 29, 1999. On April 29, 1999, Petitioners and T.S. Builders, Inc., filed separate proposed orders. The City of Tallahassee filed a Motion for Extension of Time, requesting leave to file its proposed order on April 30, 1999. That motion is hereby granted. The proposed orders have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Respondent, T.S. Builders, Inc. (hereinafter referred to as "T.S."), is a Florida corporation located at 2700 Hadley Place, Tallahassee, Florida.

   2. Respondent, City of Tallahassee (hereinafter referred to as the "City"), is a municipal corporation organized under the laws of the State of Florida.

   3. Petitioner, Jacob D. Varn, is a resident of the City. Mr. Varn resides in a small subdivision located on Meridian Place near the property which is the subject of this case. The subdivision in which Mr. Varn resides consists of approximately 5 or 6 lots.

   4. The evidence failed to prove who John and Nancy Fruin, Francis C. and Karen W. Skilling, Thomas J. Bixler, Sheila S. Varn, and Naomi S. Perkins are. The evidence also failed to prove where they reside.

2. The Subject Property.

   
   

   1. T.S. owns a 1.385 acre unrecorded residential parcel of real property (hereinafter referred to as the "Subject Property") located at the southeast corner of Meridian Road and Meridian Place. Approximately 170 feet of the Subject Property fronts on Meridian Place and 356 feet fronts on Meridian Road.

   2. Meridian Road is a two-lane public street with a center turning lane. Meridian Road runs north-south. Meridian Road has been designated as a "canopy road." As a consequence, Meridian Road is subject to a canopy road protection setback: no construction is allowed within 100 feet from the centerline of Meridian Road.

   3. Meridian Place is a two-lane, dead-end, City-maintained residential public street. Meridian Place runs east-west. Meridian Place is not classified as a major or minor arterial or major collector roadway.

   4. The Subject Property is located within an unrecorded residential subdivision known as "Meridian Place." The Subject Property has not been previously subdivided.

   5. The Subject Property is located in an area designated as a Residential Preservation I zoning district. The maximum density allowed in Residential Preservation I zoning districts is

      3.6 single-family dwelling units per acre.

      
      

   6. Land uses in the area immediately surrounding the Subject Property are limited to low-density, single-family residences.

3. Certificate of Land Use Compliance and Concurrency Certification.

   1. On July 28, 1997, T.S. obtained a land use compliance certificate (hereinafter referred to as an "LUCC"), for the Subject Property from the City. The City identified the Subject Property in the LUCC as parcel I.D. No. 11-18-206-01-0000.

   2. Through the LUCC the City concluded that the Subject Property was eligible for subdivision into 5 single-family lots, as long as density did not exceed 3.6 dwelling units per acre, the allowable density for the zoning district within which the Subject Property is located. The LUCC indicated that access to the lots would have to be limited to Meridian Place.

   3. The City also concluded in the LUCC that any proposed subdivision of the Subject Property would be limited to subdivision as a "limited partition," that it would be reviewed under applicable canopy road requirements, and that it would require a concurrency certificate, an environmental permit, building permits, and certificates of occupancy.

   4. A certificate of concurrency for 3 single-family detached dwellings on the Subject Property was issued by the City to T.S. on September 16, 1998. The other permits must be obtained at a later date.

4. T.S.'s Application for Limited Partition.

1. On or about September 10, 1998, T.S. filed a City of Tallahassee Limited Partition Application (hereinafter referred to as the "Partition Application"), with supporting documents. The Partition Application was filed pursuant to Section 20.1,

   Article XX, Chapter 27 of the City's Code, the City's Zoning, Site Plan and Subdivision Regulations (Chapter 27 of the City's Code will hereinafter be referred to as the "Zoning Regulations").

2. The Partition Application filed by T.S. included the following:

   1. A completed City of Tallahassee Limited Partition Application;

   2. A Limited Partition Checklist indicating that all items, except an 8 1/2 X 14-inch document to be recorded in the Official Records Book, had been filed. The 8 1/2 x 14-inch document to be recorded in an official records book was required to include a boundary survey, the signature and seal of a surveyor, existing structures, date of preparation, total acreage, lot and block numbers, easements, a statement concerning future subdivisions, and a scale of plan (hereinafter referred to as the "Recordable Plan");

   3. A vicinity map indicating the location of the Subject Property in relation to adjacent streets and properties;

   4. A Project Narrative, describing the proposed project;

      
      

   5. A completed Applicant's Affidavit of Ownership & Designation of Agent;

   6. A sketch of the Subject Property indicating the location of water and sewer connections to be serviced by the City;

   7. A 100-year flood frequency hazard area map for the area, including the Subject Property; and

   8. A copy of the Preliminary Certificate of Concurrency for the Subject Property.

3. Although the Recordable Plan required by Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations was not provided with the Partition Application, consistent with City policy of requiring that the Recordable Plan be provided at the time of final approval of the limited partition, the City accepted T.S.'s Partition Application as complete.

4. The document provided with the Partition Application by

   
   

   1. S., an 8 1/2 x 11 document, complied with the substantive requirements for the Recordable Plan. At the formal hearing,

      T.S. presented a Recordable Plan in substantial compliance with Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations. T.S. Exhibit 15.

      1. T.S.'s Proposed Limited Partition of the Subject Property.

5. During the summer of 1998, T.S. submitted a proposal for development of the Subject Property to the City for a

   pre-application review. Comments concerning that proposal were provided to T.S. by the City in July 1998. T.S. modified its planned development and proposed the subdivision of the Subject Property into 3 single-family residential lots.

6. The proposed density for the subdivision is 2.2 dwelling units per acre, which is within the allowable density for the zoning district in which the Subject Property is located.

7. No new streets are to be created by the proposed partition and access will be limited to Meridian Place, an existing public street.

8. City water and sewer are available to the Subject Property.

9. T.S. has proposed the division of the Subject Property as follows (a copy of T.S. Builders' Exhibit 15 depicting the proposed division of the Subject Property is attached to this Recommended Order and is hereby incorporated herein; the copy of the exhibit will hereinafter be referred to as the "Attached Partition Plan"):

   Lot 1:

   
   

   1. Lot 1 will be located closest to Meridian Place. Lot 1 is shaded blue on the Attached Partition Plan. Lot 1 is rectangular in shape.

   2. Lot 1 will consist of approximately .391 acres or 17,041 square feet.

   3. Lot 1 will have 139.65 feet fronting on Meridian Place and 122.01 feet fronting on Meridian Road.

   4. Access from Lot 1 will be directly onto Meridian Place.

      
      

   5. The westernmost 50 feet of Lot 1 will be placed in an easement because it is located within the canopy road protection zone.

   Lot 2:

   
   

   1. Lot 2 will be located adjacent to the southern edge of Lot 1. Lot 2 is shaded yellow on the Attached Partition Plan. Lot 2 is rectangular in shape except for the easternmost

      boundary, which extends almost 15 feet further to the east on the northern boundary (154.74 feet) than on the southern boundary (139.78 feet).

   2. Lot 2 will consist of approximately .460 acres or 18,179 square feet, plus a driveway which will be shared with Lot 3.

   3. Lot 2 will have approximately 139.74 feet adjacent to the southern boundary of Lot 1 and 123.50 feet fronting on Meridian Road.

   4. Access from Lot 2 will be by a driveway along the eastern boundary of the Subject Property. The distance from Meridian Place to the southeastern corner of Lot 1 is 122.01 feet.

   5. The westernmost 50 feet of Lot 2 will also be part of the canopy road protection zone.

   Lot 3:

   
   

   1. Lot 3 will be located adjacent to the southern edge of Lot 2. Lot 3 is shaded orange and purple on the Attached Partition Plan. Lot 3 is rectangular in shape except for a portion of the lot that extends along the eastern boundary of

      Lot 2. This extension is shaded purple on the Attached Partition Plan. The purple-shaded portion of Lot 3 is 15 feet on the north, 123.50 feet on the east, 124.41 feet on the west, and approximately 30 feet on the south.

   2. Lot 3 will consist of approximately .534 acres or 18,619 square feet, plus a driveway which will be shared with Lot 2.

   3. Lot 3 will have approximately 139.78 feet adjacent to the southern boundary of Lot 2 and 109.65 feet fronting on Meridian Road.

   4. Access from Lot 3 will be by a driveway along the eastern boundary of the Subject Property.

   5. The western-most 50 feet of Lot 3 will also be part of the canopy road protection zone.

   1. Review and Approval of the Partition Application.

      
      

10. The preliminary decision to approve the Partition Application was made after review by employees of the City from various interested City departments.

11. The approval decision was made at a meeting held on September 17, 1998. No formal notice of the meeting was given to the public. Although the meeting was open to the public, no public participation was allowed. Mr. Varn was aware of the meeting and attended it.

12. Gordon H. Hansen, a land use planner in the City's Growth Management Department, informed T.S. of the initial decision by letter dated September 17, 1998.

13. The decision of the City was to conditionally approve the Partition Application. T.S. was informed of additional conditions by letter dated September 22, 1998, from the Land Use and Environmental Services Division of the City's Growth Management Department. Approval was conditioned upon T.S. accepting the conditions and submitting revised plans reflecting the acceptance of the conditions. T.S. accepted those conditions

    on September 17, 1998, September 28, 1998, and at the formal hearing of this case.

14. The conditional approval was not final until the time allowed for a request for hearing challenging the approval had expired.

15. Petitioners filed a challenge to the conditional approval resulting in the abeyance of the final decision until completion of the review process. Petitioners were given a full opportunity to be heard and to participate in the City's decision process during the hearing of this case.

16. The conditional approval of the Partition Application was not given prior to the formal hearing of this case by the Director of the City's Growth Management Department. At the time of approval of the Partition Application, Rhett Miler was the Director of the Growth Management Department.

17. During the hearing of this case the current Director of the City's Growth Management Department, Mr. Robert L. Herman, approved the Partition Application. This approval was obviously given more than ten days after the Partition Application was filed.

    1. Proposed Flag Lots.

       
       

18. Lots 2 and 3 are irregularly shaped or "stem" lots. The main body of these lots does not abut any road. Proposed access to Lots 2 and 3 will by a narrow extension, or "stem," which will connect the main body of the lots to Meridian Place.

    Because Lot 1 is located between Meridian Place and Lots 2 and 3, a narrow arm of land is required to provide access to Meridian

    Place for Lots 2 and 3. As a consequence, Lots 2 and 3 constitute residential "flag lots" as defined in Section 2.1(33), Article II, Chapter 27 of the Zoning Regulations.

19. Access to Meridian Place from Lot 2 as originally proposed by T.S. was to be by way of a 15-foot wide driveway running 122.01 feet from the northeast corner of Lot 2 to the boundary of the Subject Property on Meridian Place. This original driveway is located adjacent to the eastern boundary of Lot 1. The originally proposed driveway for Lot 2 is shaded green on the Attached Partition Plan.

20. Access to Meridian Place from Lot 3 as originally proposed by T.S. was to be by way of another 15-foot wide driveway also running 122.01 feet from what is considered the northeast corner of Lot 3 to the boundary of the Subject Property on Meridian Place. This original driveway is located immediately adjacent to the eastern edge of the driveway for Lot 2. The originally proposed driveway for Lot 3 is shaded red on the Attached Partition Plan.

21. One of the conditions for approval of the Partition Application imposed by the City on T.S. was that the proposed driveways for Lots 2 and 3 be combined to create one driveway to be used for both lots. T.S. agreed to this condition. The proposed driveways for Lots 2 and 3 will, therefore, have a combined total width of 30 feet. As a result of T.S.'s agreement, the proposed driveways will have a minimum of 20 feet of frontage to accommodate utility placement and easement within the driveway.

22. The length of the driveway for Lot 2 will be less than

    
    

    150 feet from Meridian Place.

    
    

23. The length of the driveway for Lot 3 will also be less than 150 feet from Meridian Place if the irregularly shaped configuration of Lot 3 proposed by T.S. is accepted. The combined length of the proposed driveway for Lot 3 and the purple-shaded portion of Lot 3, however, is approximately 245.51 feet.

24. The purple-shaded portion of Lot 3 was identified on

    
    

    T.S. Builders' Exhibit 13 as "access." That exhibit, however, was prepared to address environmental impacts, canopy zone protection, and slopes on the Subject Property. The evidence at hearing proved that T.S. is proposing the subdivision of the Subject Property with the purple-shaded area be included as part of Lot 3 and not merely as "access."

25. The City considers the purple-shaded area of Lot 3 to be part of the "buildable area" of Lot 3. The City also considers the purple-shaded area to be a part of the lot and not the driveway because the driveway is considered to end where the driveway is no longer straight.

26. Due to setback requirements, there is virtually no actual space in the purple-shaded area of Lot 3 which can be built within 160 feet from Meridian Place. See Section 10.6.Y, Article X, Chapter 27 of the Zoning Regulations.

27. Although the odd shape of Lot 3 has obviously been proposed in order for the Subject Property to be subdivided into three, rather than two, lots which will meet the requirements of

    the Zoning Regulations for lot configuration applicable to flag lots, the City has consistently found similar lot configurations to be in compliance with the Zoning Regulations. The City has consistently concluded that "driveways" end where the width of property used for the driveway expands beyond the minimum width required for the driveway. In this case, the driveway for Lot 3 ends where the purple-shaded portion of Lot 3 begins.

28. Even though the eventual owner of Lot 3 may not be able to place any construction on portions of the purple-shaded area of the lot, T.S. is proposing that Lot 2 and Lot 3 be legally subdivided as depicted on the Attached Partition Plan. As a consequence, the ultimate owner of Lot 3 may use the purple- shaded portion of Lot 3 in the same manner that the orange-shaded portion of the lot may be used.

29. Based upon the City's policy concerning flag lots and the fact that Lot 3 will be legally configured as depicted on the Attached Partition Plan, Lot 3's driveway will consist of the area shaded red and green and will be less than 150 feet from Meridian Place.

    1. The Canopy Road Protection Area.

    
    

30. In response to the determination that the Subject Property was adjacent to a canopy road, T.S. agreed to comply with the 100 feet from the center line of Meridian Road setback. That setback extends 50 feet into the Subject Property. That 50- foot portion of the Subject Property located within the setback area will serve as the boundary of a conservation easement. The

    conservation easement will be recorded by T.S. after the limited partition is approved.

31. Section 2.1(13), Article II, Chapter 27 of the Zoning Regulations defines "development" for purposes of the Zoning Regulations to include the "dividing of land into two (2) or more parcels."

32. The City interprets the prohibition of "development" within a canopy road protection area to apply to actual construction or other alteration of the land. The City does not consider that its approval of the mere legal division of property into parcels to be allowing "development to occur within" the canopy road protection area.

33. The City's policy is reasonable. The canopy road protection setback is intended to protect canopy roads from intrusion and disturbance to the canopy. The legal subdividing of property involves no such intrusion or disturbance within the area required to be protected. This conclusion is also supported by other provisions in the Zoning Regulations and the City's Environmental Management Ordinance, Chapter 28 of the Zoning Regulations (hereinafter referred to as the "Environmental Management Ordinance"), that specifically recognize that some actual development is allowed within the canopy protection area. See Section 10.4.A, Article X, Chapter 27 of the Zoning Regulations, and Section 3.1(1)(h), Article 3 of the Environmental Management Ordinance.

    1. The Environmental Management Ordinance.

       
       

34. On or about May 5, 1998, T.S. submitted a completed Tallahassee-Leon County Natural Features Inventory (hereinafter referred to as the "Natural Features Inventory") for the Subject Property. The Natural Features Inventory indicated the extent to which slopes exist on the Subject Property, identified the canopy road setback and, by an attached letter, demonstrated that a cultural resource assessment had been performed.

35. According to the Natural Features Inventory, it was concluded that there were "severe" grades on .024 acres of the Subject Property or 1.74% of the Subject Property. It was also concluded that there were "significant" grades on .415 acres of the Subject Property or 29.9% of the Subject Property.

36. A natural features analysis of the Subject Property was also conducted by Susan Tanski, a Staff Biologist for the City. Ms. Tanski found that the Subject Property impacted a canopy road. She also found "severe" and "significant" grades on the Subject Property.

37. By letter dated May 7, 1998, the City approved the Natural Features Inventory and indicated that the Meridian Road Canopy Road and the severe and significant slopes on the Subject Property would have to be addressed. Severe grades or slopes are considered "preservation" areas under the Environmental Management Ordinance and significant slopes and canopy roads are considered "conservation" areas.

38. Although the Natural Features Inventory was submitted as part of T.S.'s original proposed project, the conclusions

    reached in the Natural Features Inventory of T.S. and

    
    

    Ms. Tanski's conclusions based thereon did not change as a result of the proposed subdivision of the Subject Property ultimately approved by the City and at issue in this proceeding.

39. When the City initially approved the Partition Application, it informed T.S. that the approval was conditioned upon the submission of an environmental impact analysis to

    Ms. Tanski for review. In September 1998 T.S. submitted an environmental impact analysis of the Subject Property.

40. Although no easement recording any preservation or conservation areas has been recorded by T.S.; yet, it has agreed to do so when the Partition Application is approved.

41. No environmental management permit has been obtained by

    
    

    T.S. for the Subject Property.

    
    

    1. Significant and Sever Slopes.

       
       

42. The Environmental Management Ordinance provides that grades of greater than 20%, or "severe" slopes, are considered "preservation" areas and that grades of between 10 and 20%, or "significant" slopes, are considered "conservation" areas.

43. The City's policies for the treatment of significant and severe slopes is set out in Policy 601GM. Pursuant to Section 601.06 of Policy 601GM, significant slopes are subject to regulation unless they have a "minimum width or length of 80 feet at some point . . . " and " . . . the area must be at least one- quarter acre (10,890 square feet)." All severe slopes are subject to regulation regardless of size or dimension.

44. There are four significant slopes on the Subject Property identified by T.S. as slopes A, B, C, and D. T.S. Exhibit 7. Slopes A, B, and C are all slopes that are of a size that do not require regulation.

45. Slope D, which is approximately 11,813 square feet in area, is subject to regulation. Therefore, a minimum of 50% of slope D must be placed in a conservation easement.

46. An area located adjacent to slope D has been identified as slope E. Slope E, which consists of 922 square feet, is a severe slope, subject to regulation and preservation.

47. Slope E, when considered as a part of slope D, is less than 25% of the total area of the combined slopes. Therefore, slope E may be considered as a significant slope for purposes of regulation in this case. Rather than being subject to total preservation, all that is required is that 50% of the combined area of slopes D and E be placed in a conservation easement. The 50% preserved area may be made up totally of slope D, totally of slope E, or partly of slopes D and E.

48. T.S. submitted documents to the City in May 1998 which included different measurements for the amount of significant and severe slopes on the Subject Property. See T.S. Exhibit 4. T.S. submitted updated data, however, with its environmental impact analysis submitted in September 1998. See T. S. Exhibit 7. The later information concerning the area of significant and severe slopes is the more accurate information relied upon the City in this proceeding.

49. T.S. also represented in May 1998 that it did not intend to disturb slope E. As a result of this representation, the City informed T.S. that it would not be necessary to deregulate slope E (treat it as a significant slope) because of this representation. In September, and at the formal hearing of this case, the City and T.S. agreed that, due to the size of slope E and its proximity to slope D, slope E should be deregulated and slope E would be treated as a part of a single significant slope subject to 50% protection of the total area of slopes D and E. As a result, the City informed T.S. by letter dated September 30, 1998, that its request to deregulate (treat it as a significant slope) slope E was approved.

50. The total combined area of slopes D and E is 12,735 square feet. Therefore, a minimum of 6,375.5 square feet must be preserved by placement in a conservation easement. T.S.'s written representations concerning how the required area will be preserved were not precise. In a letter dated June 5, 1998, from the Project Manager for T.S. to a City representative it was represented that "approximately 54% [of slopes D and E] is to be contained within the protected canopy zone and other undeveloped portions of the site." (Emphases added). In T.S.'s environmental impact analysis it was represented that "over 50% of the fourth [significant slope] lies within natural areas." (Emphasis added).

51. At hearing, Ms. Tanski testified about the area of slope D to be included in a conservation easement according to what T.S. has depicted on site plans submitted to the City.

    According to Ms. Tanski, T.S. has depicted the inclusion of at least 50% of slopes D and E in the proposed canopy road conservation area.

52. Evidence in rebuttal of Ms. Tanski's testimony was offered by Petitioners, but only after the formal hearing had concluded. Petitioners included calculations of the percentage of slopes D and E shown in the conservation easement area as part of their proposed order. Those calculations were not testified about during the formal hearing and do not appear to be the types of simple mathematical calculations that can be made from the evidence presented at hearing, especially in light of the failure to offer any to-scale drawings of the site into evidence during the hearing.

53. The calculations offered by Petitioners in their proposed order were made by Mr. Varn, a licensed surveyor, after the formal hearing had ended. The calculations were the subject of Petitioners' first motion to reopen this case. That motion was denied and, therefore, the calculations should not have been relied upon by Petitioners in their proposed order.

54. Even without the calculations and evidence Petitioners attempted to offer after the hearing of this case, Ms. Tanski's testimony concerning whether T.S. has depicted at least 50% of slopes D and E to be part of the canopy protection zone easement area cannot be accepted. A simple visual review of T.S.

    Exhibit 7, the document that Ms. Tanski relied upon in determining the percentage of slopes D and E included within the conservation easement, does not support a finding that T.S. has

    visually depicted how it will ensure that the condition concerning the percentage of slopes D and E to be included in a conservation easement will be met.

55. Even though Ms. Tanski's conclusion concerning the percentage of slope D and E depicted to be in the conservation easement were not clear,is incorrect, T.S. has agreed that it will provide a conservation easement for recording that includes a minimum of 50% of the combined area of slopes D and E upon approval of its Partition Application.

56. In summary, although some of T. S.'s representations concerning the extent of slopes D and E which will be subject to a conservation easement were not clear, T.S. has agreed to all conditions placed on the approval of its Partition Application, including the regulation of severe and significant slopes. T.S. has, therefore, agreed to ultimately record a conservation easement covering at least 50% of the combined area of slopes D and E upon approval of the Partition Application.

57. There are no active karst features on the Subject Property.

    1. Compatibility.

       
       

58. T.S.'s proposed use of the Subject Property is residential. Residential use of the Subject Property is consistent with the land uses in the surrounding area.

59. T.S. has proposed a density of 2.2 residential units per acre for the Subject Property. This density, while greater than the immediately surrounding neighborhood density, is within

    the 3.6 residential units per acre density approved for the zoning district in which the Subject Property is located.

60. While the proposed use of the Subject Property is more intense than the surrounding neighborhood, the weight of the evidence proved that there is nothing incompatible about the proposed use of the Subject Property.

    1. Miscellaneous Notice Requirements of the Tallahassee- Leon County Comprehensive Plan.

61. Policy 1.3.6 of the Conservation Element of the Tallahassee-Leon County Comprehensive Plan (hereinafter referred to as the "City's Plan") provides the following:

    A site plan review will be required for all projects which have 40% or more of their acreage located in the preservation or conservation overlay districts. The land development code shall include procedures for public notification and comment on such development plans.

    
    

62. Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan provides, in part, the following:

    On a continuing basis, local government shall promote awareness and involvement of citizens of Tallahassee-Leon County in the comprehensive planning and plan implementation process.

    Specifically, the . . . City . . . shall make full use of the local media, and shall conduct public workshops, meetings, and hearings tailored to achieve broad public knowledge of planning issues and to solicit public involvement in local decision making. . . .

63. Petitioners' reliance on Policy 1.3.6 of the Conservation Application Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan is misplaced. Neither of these provisions requires that notice of any meetings involved in this case be given to the public or that

    the public be allowed to actively participate in the meeting at which the Partition Application was considered by the City. The City's Plan provides the broad framework for the management of growth within the City over a long planning period. The details of that management system are set out in the City's land development regulations. The land development regulations govern the everyday decisions the City must make, not the City's Plan.

64. If Petitioners' argument concerning the applicability of these provisions of the City's Plan to this matter were accepted, those provisions would also apply to practically every decision made by City staff. To interpret the City's Plan; Chapter 163, Florida Statutes; or Chapter 286, Florida Statutes, to require such public participation would cause an absurd result.

65. Finally, Petitioners raised the alleged violation of Policy 1.3.6 of the Conservation Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan for the first time in their proposed recommended order. Petitioners did not allege any violation of this Policy or Objective in their petition.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

66. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Article XXIV, Chapter 27 of the Zoning Regulations and Section 120.65(7), Florida Statutes (1997).

    1. Burden of Proof.

       
       

67. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in a proceeding before the Division of Administrative Hearings. Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d

    249 (Fla. 1st DCA 1977).

    
    

68. In this proceeding, it is T.S. that is asserting the affirmative: that the City should approve its Partition Application. T.S., therefore, had the ultimate burden of proof.

69. In order for T.S. to meet its burden of proof, it was required to present a prima facie showing of entitlement to approval of its Partition Application taking into account the objections raised by Petitioners. T.S. met its burden.

70. Following the presentation of T.S.'s prima facie case, Petitioners had the burden of proving the allegations of their petition. The evidence presented by Petitioners in support of their petition was required to be of at least equivalent quality to the evidence presented by T.S. See Hoffert v. St. Joe Paper Company, 12 F.A.L.R. 4972 (Fla. Dept. of Env. Reg. 1990). Petitioners failed to meet their burden.

    1. Standing.

       
       

71. Standing to participate in this proceeding is governed by Section 24.4, Article XXIV, Chapter 27 of the Zoning

    Regulations. Standing is recognized for the "applicant," the "local government," and by:

    any person who will suffer an adverse effect to an interest protected or furthered by the Comprehensive Plan, including interest related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or service, or environmental or natural resources. The alleged adverse effects to an interest may be shared in common with other members of the community at large, but shall exceed in degree the general interest in community good shared by all persons.

    . . .

    
    

72. Pursuant to Section 24.4, Article XXIV, Chapter 27 of the Zoning Regulations, T. S. and the City have standing to participate in this proceeding.

73. While "those who own property and live in a residential area have a legitimate and protectable interest in the preservation of the character of their neighborhood . . ." and, thus, may be considered to have standing to participate in proceedings of this type, not all of the Petitioners provided sufficient proof of their standing. See Allapattah Community Association, Inc., v. City of Miami, 379 So. 2d 387, 392 (Fla. 3rd DCA 1980).

74. The evidence in this case proved that Jacob D. Varn owns property and resides in the "neighborhood" in which the Subject Property is located. Mr. Varn, therefore, proved his standing to participate in this proceeding.

75. As to the other Petitioners in this case, none of whom testified, the evidence failed to prove that any of them currently own property or reside in the neighborhood.

    Petitioners, with the exception of Mr. Varn, have, therefore, failed to prove their standing.

    1. Conditions for Approval of Limited Partitions.

       
       

76. Section 20.1, Article XX, Chapter 27 of the Zoning Regulations sets out the general requirements for approval of a limited partition. Generally, a limited partition of property may be approved if the following conditions relevant to this proceeding (hereinafter referred to as the "General Conditions") are met:

    1. The property to be partitioned is an unrecorded residential lot or parcel;

    2. The property is located on an existing public or private street;

    3. The property is to be subdivided into no more than 10 single-family residential detached lots;

    4. The density of the proposed lots is allowed by the zoning district in which the property is located;

    5. No lot will have direct driveway access to a major or minor arterial or major collector roadway;

    6. No new street will be created to provide legal access to any lot;

    7. Water and sewer services are available; and

       
       

    8. The property has not previously been subdivided.

    
    

77. The evidence in this case proved that the Subject Property and T.S.'s proposed subdivision of it meets the General Conditions.

78. In addition to complying with the General Conditions, a LUCC verifying that the proposed subdivision is for a limited partition must be obtained. Section 20.1(2), Article XX, Chapter

    27 of the Zoning Regulations. T.S. obtained a LUCC.

    
    

79. Finally, Section 20.1(3), Article XX, Chapter 27 of the Zoning Regulations requires the filing of an application including the following (hereinafter referred to as the "Application and Attachments"):

    1. An 8 1/2 x 14-inch document to be recorded in an official records book which includes a boundary survey, the signature and seal of a surveyor, existing structures, date of preparation, total acreage, lot and block numbers, easements, a statement concerning future subdivisions, and a scale of plan (hereinafter referred to as the "Recordable Plan");

    2. A vicinity map;

       
       

    3. The identification of 100-year flood frequency hazard area in relation to the property or a note that it is not applicable;

    4. The method by which utilities will be provided;

       
       

    5. A completed application form;

       
       

    6. A preliminary concurrency certificate; and

       
       

    7. Payment of any applicable fee.

    
    

80. The evidence in this case proved that the T.S. provided all of the Application and Attachments, except for a Recordable Plan. Not providing the Recordable Plan was consistent with the City's policy of not requiring such a plan until a proposal subdivision has been approved.

81. The City's policy concerning a Recordable Plan is a reasonable one. The events in this case demonstrate why. Had T.S. submitted a Recordable Plan with its Partition

    Application, it would have been required to revise it several times. First, it would have had to revise it when the City announced its preliminary decision to conform the plan to the conditions imposed by the City. Next, it would have had to revise the plan again as a result of this hearing. Requiring such effort on the part of a landowner attempting to comply the Zoning Regulation requirements for limited partitions when the landowner indicates his or her willingness to comply with the Zoning Regulations and conditions imposed by the City would serve no purpose.

82. Based upon the foregoing, it is concluded that the Application and Attachment were complete.

    1. Flag Lots.

       
       

83. The general principles for subdivision design are set out in Section 20.9.C, Article XX, Chapter 27 of the Zoning Regulations. Of relevance to this proceeding, Section 20.9.C(7)(d), Article XX, Chapter 27 of the Zoning Regulations establishes certain requirements for any proposed lot that comes within the definition of a "flag lot."

84. A "flag lot" is defined in Section 2.1(33), Article II, Chapter 27 of the Zoning Regulations as follows:

    Lot, Flag: An irregularly shaped or stem lot whose main body does not abut a road, but is accessed by a narrow extension which connects the main body to the road. This definition is intended to include any lot located behind the

    rear or to the side of any other lot which would require a narrow arm to provide access. This definition is not intended to include pie-shaped or other irregular-shaped lots which front directly upon a road and are not located behind any other lot.

    
    

    Lots 2 and 3 of the Subject Property constitute flag lots under this definition.

85. Section 20.9.C(7)(d), Article XX, Chapter 27 of the Zoning Regulations requires that the following relevant conditions be met before a flag lot may be developed:

    1. The driveway segment of the lot must have a minimum clear width of fourteen feet and a minimum total frontage of 20 feet "in order to accommodate utility placement and easements"; and

    2. The maximum distance of the driveway portion of the lot from the right-of-way may not be more than 150 feet.

86. There is no dispute that the driveway segment of Lots

    
    

    2 and 3 of the Subject Property will have a minimum clear width of 14 feet: both have segments that are 15 feet wide. There is also no dispute that, while the individual driveway widths of Lots 2 and 3 are less than 20 feet, the combined driveway width of the driveway segments for Lots 2 and 3 is approximately 30 feet. By combining the driveways for Lots 2 and 3, the driveway segment will continue to provide minimum clear width of 14 feet and a minimum total frontage of 20 feet.

87. The policy of the City is to approve the design of flag lots where two lots have a jointly-owned driveway that provides the minimum 20 feet of frontage to accommodate

    utilities. Such a condition has been imposed on the Subject Property. This policy is reasonable and consistent with the provision of the Zoning Regulations governing the design of flag lots. Section 20.9.C(7)(d)5, Article XX, Chapter 27 of the Zoning Regulations provides the following condition which supports this conclusion:

    There shall be no more than two (2) adjacent flag lots on which not more than one (1) cross- easement driveway shall be located.

    
    

    This provision contemplates the sharing of driveways, under limited circumstances.

88. The evidence also supports a conclusion that the condition concerning the maximum 150-foot length of driveways servicing flag lots has been met as to Lot 2. The driveway for Lot 2 is to be 122.01 feet from Meridian Place to the northeast corner of Lot 2.

89. The more difficult issue is whether Lot 3's driveway meets the maximum 150-foot length requirement. Clearly, the odd shape of Lot 3 has been proposed solely to comply with this driveway design requirement. Despite this fact, the legal consequence of the design will allow the owner of Lot 3 to develop and use the portion of the lot immediately adjacent to the east boundary of Lot 2 in the same manner that any other portion of Lot 3 may be used and developed. Therefore, while the design of Lot 3 may not meet the spirit of the design requirement concerning the maximum length of driveways for flag lots, it does meet the technical requirements. This conclusion is consistent

    with the City's policy of treating the area where a proposed driveway begins to flare as the end of the driveway.

90. Based upon the foregoing, it is concluded that the proposed subdivision design for the Subject Property meets the conditions of 20.9.C(7)(d), Article XX, Chapter 27 of the Zoning Regulations.

91. If it were ultimately concluded that the length of the driveway for Lot 3 does not meet the requirement for flag lot driveways, the deficiency could be cured by reducing the width of the southern boundary of Lot 2 so that portion of Lot 3 depicted in purple on the Attached Partition Plan is flared further.

    1. The Canopy Road Protection Area.

       
       

92. Section 20.9.C(7)(e), Article XX, Chapter 27 of the Zoning Regulations prohibits the design of any lot which would:

    allow development to occur within one hundred

    (100) feet of the centerline of a canopy road without the express approval of the commission.

    
    

93. "Canopy roads" are established in Section 2.2, Article II, Chapter 27 of the Zoning Regulations. Among other roads, Meridian Road has been designated as a canopy road.

94. Section 2.1(13), Article II, Chapter 27 of the Zoning Regulations defines "development" to include the "dividing of land into two (2) or more parcels."

95. Petitioners have argued that the proposed subdivision of the Subject Property constitutes "development" and is, therefore, prohibited within the canopy road protection area without approval of the City Commission. The difficulty with Petitioners' argument is that, while the proposed subdivision of

    the Subject Property may constitute "development" for some purposes under the Zoning Regulations, in this case the mere legal division of the Subject Property is not the type of development that will "occur within" the canopy road protection area. This conclusion is consistent with the City's interpretation of Section 20.9.C(7)(e), Article XX, Chapter 27 of the Zoning Regulations.

96. Based upon the foregoing, it is concluded that the proposed subdivision of the Subject Property does not violate Section 20.9.C(7)(e), Article XX, Chapter 27 of the Zoning Regulations.

    1. The Environmental Management Ordinance.

       
       

97. The Environmental Management Ordinance defines "environmentally sensitive land features" to include any preservation or conservation feature. Section 7.5(31) of the Environmental Management Ordinance. The definition of preservation features includes severe slopes. Conservation features are defined to include significant slopes and canopy roads. Section 3.1(1)(a), Article 3 of the Environmental Management Ordinance.

98. Section 3.5(1), Article 3 of the Environmental Management Ordinance requires that all environmentally sensitive lands must be included in a recorded easement.

99. T.S. has not yet provided a recordable plan delineating the areas of the Subject Property to be subject to easement. T.S. has, however, agreed to do so once a decision has been made as to how the limited partition it is seeking will look

    like once approved, and exactly what property must be included in the easement to comply with the Environmental Management Ordinance. This agreement cures any error by not providing the recordable plan prior to the City's conditional approval of the Partition Application.

100. Section 3.1, Article 3 of the Environmental Management Ordinance also requires, as part of the environmental review required by subdivision reviews, a natural features inventory and an environmental impact analysis. T.S. has provided by a natural features inventory and an environmental impact analysis.

101. Finally, Section 2.1(1), Article 2 of the Environmental Management Ordinance requires approval of an environmental management permit prior to any "development" activity. The substance of this provision does not require that the permit be drawn simply because T.S. is proposing to subdivide the Subject Property.

     1. Significant and Sever Slopes.

     
     

102. The Environmental Management Ordinance provides that grades of greater than 20%, or "severe" slopes, are considered "preservation" areas and that grades of between 10 and 20%, or "significant" slopes, are considered "conservation" areas.

103. The City's policies for the treatment of significant and severe slopes is set out in Policy 601GM. Pursuant to Section 601.06 of Policy 601GM, significant slopes are subject to regulation unless they have a "minimum width or length of 80 feet at some point . . . " and " . . . the area must be at least one-

     quarter acre (10,890 square feet). All severe slopes are subject to regulation, regardless of size or dimension.

104. Of the four significant slopes on the Subject Property, three (identified as slopes A, B, and C) are not subject to regulation under Policy 601GM or the Environmental Management Ordinance.

105. The fourth significant slope on the Subject Property, slope D, is subject to regulation under Policy 601GM. At least 50% of the area of slope D must be preserved by an easement.

106. The other slope on the Subject Property, slope E, is a severe slope. Consistent with Policy 601GM, however, the City has agreed that slope E may be treated as part of slope D because it abuts slope D and its area constitutes less than 25% of the combined area of slopes D and E. As a consequence of this deregulation of slope E, at least 50% of the combined 12,735 square feet of slopes D and E must be placed in a conservation easement by T.S.

107. While T.S. and the City failed to prove that T.S. has visually depicted what 50% portion of slopes D and E will be placed in a conservation easement, T.S. has agreed to meet this condition when it records its Recordable Plan. If T.S. does so, the Partition Application will be consistent with Policy 601GM and the Environmental Management Ordinance.

     1. Compatibility.

        
        

108. Section 10.3, Article X, Chapter 27 of the Zoning Regulations establishes the City's zoning districts, including Residential Preservation 1, the type of zoning district in which

     the Subject Property is located. See Section 10.3.J, Article X, Chapter 27 of the Zoning Regulations.

109. The "primary function" of the Residential Preservation zoning district is "to protect existing stable and viable residential areas from incompatible land uses and density intrusions."

110. The proposed use of the Subject Property is neither an incompatible land use nor an incompatible density intrusion. The propose use of the Subject Property is residential and the density is limited to 2.2 units per acre, well within the 3.6 dwelling units per acre allowed in Residential Preservation 1 zoning districts.

     1. Public Meetings and Notice.

        
        

111. The evidence in this case proved that the City's review and approval of the Partition Application were made in conformity with the notice and meeting requirements of the Zoning Regulations. Petitioners have argued, however, that the conditional approval of the Partition Application was not made in conformity with the notice requirements of Sections 163.3181(1) and 286.011(1), Florida Statutes; Policy 1.3.6 of the Conservation Element of the City's Plan; and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan.

112. Section 286.011(1), Florida Statutes, provides that no action of a board or commission of any municipal corporation will be considered binding unless it is taken at a meeting open to the public. Petitioners have argued that the decision at issue in

     this case was not taken at such a meeting. This argument fails for several reasons.

113. First, the meeting at which the decision to give conditional approval to the Partition Application was in fact open to the public.

114. Secondly, the remedy for violations of Chapter 286, Florida Statutes, is provided in Section 286.011(3), Florida Statutes. The Division of Administrative Hearings is without jurisdiction to enforce the provisions of Chapter 286, Florida Statutes.

115. Thirdly, the decision at issue in this case is a preliminary decision. The final, binding decision will be taken by the Planning Commission at a meeting open to the public in conformity with Section 286.011(1), Florida Statutes.

116. Petitioners have also alleged that they were denied the opportunity to be heard and to participate in the decision at issue in this case. Any such defect was cured by the provision of the Zoning Regulations for a de novo challenge to any preliminary limited partition decision by the Director of Growth Management. Petitioners were given an opportunity to be heard and to meaningfully participate in the decision through the conduct of this formal administrative hearing.

117. Petitioners' reliance upon Section 163.3181(1), Florida Statutes, is also misplaced. That provision provides for public participation "in the comprehensive planning process." Toward that end, local governments are directed to adopt

     procedures designed to provide for effective public participation.

118. Section 163.3181(1), Florida Statutes, has no direct application to this case. Section 163.3181(1), Florida Statutes, establishes the types of provisions which must be included in a local government's growth management plan to ensure public participation in the local government's planning process and not whether a particular proposed government action such as the decision at issue in this case is proper. Any remedy, if the City is not in compliance with Section 163.3181(1), Florida Statutes, must come from Chapter 163, Florida Statutes, and not through this proceeding.

119. Petitioners have also argued that the preliminary approval of the Partition Application violates Policy 1.3.6 of the Conservation Element and Objective 1.5 of the Intergovernmental Coordination Element of the City's Plan. Policy 1.3.6 requires "site plan review" of projects which have 40% or more of their acreage located in a preservation or

     conservation overlay district. The policy also provides that the City's land development regulations should provide for public notification and comment on such developments. Objective 1.5 includes a general objective the City's Plan that public participation in the planning process will be promoted.

120. Petitioners' reliance on Policy 1.3.6 of the Conservation Element and Objective 1.5 of the Intergovernmental Coordination Element is misplaced. First, Petitioners did not raise these issue in their petition, but waited until the filing

     of their proposed order. Secondly, the remedy for any violation of the policy or objective, like the other notice violation arguments, lies elsewhere. In this case the appropriate remedy would be to take action to force the City to adopt provisions consistent with the policy and objective. Until such action is taken, T.S. has the right to assume that its compliance with the Zoning Regulations will also constitute compliance with the Tallahassee-Leon County Comprehensive Plan.

121. One problem with Petitioners' position concerning participation and notice applies to all of the arguments raised by Petitioners. Requiring such notice and participation in this case would equally apply to practically every decision a local government makes concerning approval of development. If notice and participation are required upon the initial review by the City of a limited partition application, why wouldn't they also be required upon the filing of an application for a building permit or any other permit required to develop property. Such a requirement would only add to what is already a complicated process.

     1. Approval Authority.

     
     

122. Section 20.1(4)(c), Article XX, Chapter 27 of the Zoning Regulations provides that the initial decision on applications for limited partitions is to be made by the "Director of Growth Management." The initial decision in this case was made by Gordon H. Hansen, a land use planner with the City's Growth Management Department. Mr. Hansen was not the

     Director of Growth Management at the time of the initial decision in this case.

123. The foregoing error was corrected, however, at the formal hearing of this case. Robert L. Herman, the City's Director of Growth Management testified at this de novo hearing that he approved the Partition Application.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Planning Commission dismissing all Petitioners except Jacob D. Varn and finding that the Partition Application is approved with the conditions imposed upon, and agreed to by, T.S. Builders, Inc.

DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 10th day of June, 1999.

COPIES FURNISHED:

David W.Moye, Esquire Jacob D. Varn, Esquire

Fowler, White, Gillen, Boggs, Villareal and Banker, P.A.

101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301

Donna S. Biggins, Esquire Ronald A. Mowrey, Esquire Mowrey & Minacci, P.A.

515 North Adans Street Tallahassee, Florida 32301

Linda R. Hurst, Assistant City Attorney City of Tallahasee

City Hall

300 South Adams Street Tallahassee, Florida 32301

Susan S. Thompson, Esquire Smith, Thompson & Shaw

3520 Thomasville Road, 4th Floor Tallahassee, Florida 32308

Jean Gregory, Clerk

Tallahassee-Leon County Planning Commission City Hall, 4th Floor

300 South Adams Street Tallahassee, Florida 32301

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: 98-004513

Orders for Case No: 98-004513