Findings Of Fact The proposed marina project involves the repair and renovation of a marina which has been in existence since the 1920s. The marina is located in Biscayne Bay within the City of Miami Beach, west of Purdy Avenue where it intersects with 13th Street. Currently, the marina is in a state of disrepair. In 1974, Respondent acquired ownership of the marina which was at that time an operating facility. Thereafter, Respondent began formulating plans to renovate and repair the facility. Respondent obtained estimates from construction firms to make repairs to the facility by replacing or reinforcing deteriorated members, piles, decking and other parts. Respondent plans to remove the existing wooden piers and piles consisting of 35,000 square feet of deck surface area and construct in their stead a facility consisting of only 24,560 square feet of deck surface area. The marina as renovated would not exceed its existing boundaries. In fact, the south pier of the marina will be relocated 40 feet northward of its existing location, which would place it 90 feet from the south property line. The proposed project entails construction of three main piers. The south pier is an L-shaped configuration which would extend westward 416 feet by 10 feet and then northward 304 feet by 10 feet. The north pier, also L-shaped, would extend westward 416 feet by 10 feet and then southward 202 feet by 10 feet. The center pier will have a T-shaped configuration. Its dimensions will extend westward 358 feet by 10 feet. The marina will also have a pier extending both northward and southward, 50 feet by 10 feet each from the center line of the pier. Additionally, the project will contain mooring piles along a canal which extends eastward from the northern perimeter of the marina. When completed, the marina will have accommodations for 161 vessels. The present facility, while it was a fully operating marina, accommodated 135 boats, together with over-the-water facilities constructed on a main center pier. Such facilities included a machine shop and major marina repair facilities, neither of which uses is proposed for the new facility. Construction activity for the proposed project involves no dredging or filling. In addition to reducing deck surface area to 24,560 square fete from the 35,000 square feet contained in the old facility, the proposed project also will contain 409 pilings as opposed to 1,037 in the existing facility. Existing wooden pilings will be removed and will be replaced with concrete pilings. Turbidity curtains will be used during the construction phase to reduce any adverse affect on water quality, which, in any event should be minimal. The concrete pilings will be installed by setting them in a steel template and driving them into the earth at the bay bottom with a hammer. In effect, this construction technique punches a hole straight down into the earth and results in minimal displacement of sediments at the bottom. Respondent also proposes to make certain cosmetic repairs to the sea wall at the present marina where there is some deterioration on the upper edges above the mean high water line resulting from corrosion. Such repairs will be made by welding of steel plate and putting a concrete cap over the top of the existing wall. The waters of Biscayne Bay are classified as Class III waters. There are no Class II waters in the vicinity of the proposed project. The testimony and evidence established that the area in and surrounding the marina facility is not productive in terms of benthic or faunal communities. There is virtually no marine vegetation in the area. The marina itself is almost devoid of any seagrasses, with the exception of several springs of Halophila and Caulerpa. The closest existing grass beds are located approximately 700 to 1,000 feet west of the marina's western perimeter. These grass beds, which include turtle grass and manatee grass, have apparently flourished during the period the existing marina was in full operation. Fouling organisms were found attached to pilings and the seawall areas of the marina. The waters inside the marina, and those in the surrounding area are not suitable as a habitat for breeding, nursery or feeding grounds for fish or other marine life. Studies conducted by Respondent's hydrographic expert indicate that tidal flow in the area of the marina will be enhanced by the renovation of the facility, largely due to reduction in the number of pilings, thereby reducing resistance to tidal flow. The evidence also disclosed that construction of the proposed facility will pose no navigational hazard or serious impediment to navigation in the immediate vicinity. The canal along the northern perimeter of the proposed project varies from 105 feet in width. Apparently only noncommercial boats will be docked in the marina and the canal. A marina has existed at the location of the proposed project for over 50 years, and there is no evidence that has ever created navigational problems within the canal or within the immediate area of Biscayne Bay. Petitioners suggest that the marina will "create a navigational hazard, or serious impediment to navigation..." within the meaning of DER's regulations, specifically Chapter 17-4.29(6)(b), Florida Administrative Code, under the theory that the boats to be accommodated in the facility will result in a general increase in boating traffic in north Biscayne Bay, and would, in addition, adversely affect the public's "navigation" of automobiles across numerous draw bridges whose spans will often be raised to accommodate boat traffic. It does not appear that chapters 253, 258.165 or 403, Florida Statutes, afford DER the authority to consider such factors in determining whether to issue a water quality permit. Even assuming that as a matter of law DER may consider such factors, the evidence presented by Petitioners on this point was vague and speculative. In its Proposed Order of Issuance, DER imposed seven permit conditions which, when combined with the design of the project and the facts set forth above, constitute "reasonable assurance" that the proposed project will not adversely affect water quality. These conditions include the following: Turbidity shall be monitored once daily during periods of water related construction activities at mid-depth 100 ft. upcurrent and 100 ft. down-current of the work area by a person(s) (project monitor) designed by the permittee. Adequate controls are taken during construction so turbidity levels beyond 100 ft. of the construction area in Biscayne Bay do not exceed 50 J.T.U. A pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility. No liveaboard vessels shall be docked at this facility unless said vessel has either a Coast Guard approved Marine Sanitation Device or a direct sewage pumpout connection is provided at the liveaboard slip. There shall be no positive drainage of stormwater runoff from the marina parking lot to Biscayne Bay. Fuel storage tanks shall be constructed of non-corrosive materials and located on the upland portion of the site. The fuel storage tanks shall be pressure tested at least once yearly to ensure that they are not leaking. Test reports shall be submitted to DER and the Dade County Environmental Resources Management. Floating oil booms and sorbent materials or equivalent equipment shall be available on site at all times in order to contain and clean up any oil or fuel spills. All marina employees shall be trained in the deployment and usage of the above spill cleanup equipment. The equipment above shall be subject to inspection by all regulatory agencies. At the conclusion of the hearing, it was stipulated among the parties that Petitioner, Izaak Walton League of America, Mangrove chapter, has standing to maintain this action pursuant to Section 120.57(1), Florida Statutes. With respect to Save Our Bay, the evidence disclosed that it is an unincorporated association which was formed for the purpose of preserving the waters of Biscayne Bay for safe navigational use, swimming and fishing, and to enhance the beauty of sunset Island and the venetian Isles, while at the same time protecting the area from the effects of pollution. Members of Save Our Bay own property in the vicinity of the proposed project, and use the waters in that area for swimming, boating and fishing. Their use of the natural resources of Biscayne Bay could be affected by construction of the proposed project. Walton, Save Our Bay and Respondent Turchin have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
The Issue The issue is whether the Type B site plan for the 78-unit townhome/condominium project known as Park Terrace Townhomes should be approved.
Findings Of Fact Parties Skipper is the applicant for the Type B site plan at issue in this proceeding, No. TSP060026. Skipper owns the property on which the project will be developed, Parcel ID No. 21-23-20-417-000-0 (the project site). The City is the local government with jurisdiction over the project because the project site is located within the City limits. The Association is a voluntary neighborhood association encompassing 343 lots in an established single-family residential neighborhood generally located to the northeast of the Tharpe Street/Old Bainbridge Road intersection, adjacent to the project site. The purpose of the Association is to “preserve and enhance the quality of life in [the] neighborhoods by taking coordinated action on matters which advance the common good of all residents,” and one of the Association’s objectives is to “protect[] the neighborhood from incompatible land use and rezoning.” The Project Site (1) Generally The project site is located to the north of Tharpe Street, to the east of Old Bainbridge Road, and to the west of Monticello Drive. The project site is bordered on the south by the Old Bainbridge Square shopping center. It is bordered on the north, east, and west by the residential neighborhood represented by the Association. The project site consists of 13.91 acres. The western 11.11 acres of the project site are zoned R-4, Urban Residential. The eastern 2.8 acres of the project site are zoned RP-1, Residential Preservation. The project site is roughly rectangular in shape. It is 300 feet wide (north to south) and approximately 2,100 feet long (east to west). The project site is located within the Urban Service Area (USA) boundary. The Tallahassee-Leon County Comprehensive Plan specifically encourages infill development within the USA. The project site is designated as Mixed Use A on the future land use map in the Comprehensive Plan. Residential development of up to 20 units per acre is allowed within the Mixed Use A land use category. The project site has been zoned R-4/RP-1 since 1997 when it was rezoned from Mixed Use A as part of the City-wide rezoning of all mixed use properties. Multi-family residential was an allowable use under the Mixed Use A zoning district, as was small-scale commercial. The R-4 zoning is intended to function as a “transition” between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. The R-4 zoning district allows a wide range of residential development at a density of up to 10 units per acre. (2) Surrounding Zoning and Uses The property to the north, east, and west of the project site is zoned RP-1, and is developed with single-family residences. The neighborhood adjacent to the project site is stable and well established. Most of the homes are owner- occupied, and many of the residents are retirees. The property to the south of the project site is zoned UP-1, Urban Pedestrian, and is developed with commercial uses, namely the Old Bainbridge Square shopping center. There is an existing stormwater pond located on the northwest portion of the shopping center parcel, adjacent to the southern boundary of the project site. (3) Environmental Features on the Project Site The project site is vacant and undeveloped, except for several concrete flumes and underground pipes located in the drainage easements that run north/south across the site. The project site has been impacted by the surrounding development in that household and yard trash has been found on the site. The vegetative community on the project site is considered to be upland hardwood forest. There are a number of large trees on the project site, including pecan, cherry, pine, gum, and various types of oak trees. There are also various exotic plants species on the site, such as kudzu. The vegetative density is consistent throughout the project site. The land in the general vicinity of the project site slopes from south to north. The elevations along Tharpe Street to the south of the project site are in 220 to 230-foot range, whereas the elevations in the neighborhood to the north of the project site approximately one-quarter of a mile north of Tharpe Street are in the 140 to 160-foot range. The elevations across the R-4 zoned portion of the project site range from a high of 214 feet on the southern boundary to a low of 160 feet on the northern boundary. The southern property boundary is consistently 30 to 40 feet higher than the northern property boundary across the entire R-4 zoned portion of the project site. The slopes are the main environmental feature of significance on the project site. There are a total of 7.32 acres (319,110 square feet) of regulated slopes -- i.e., severe or significant grades -- on the project site, which is more than half of the total acreage of the site. There is a ravine that runs in a northwesterly direction across the RP-1 zoned portion of the project site. The ravine is considered to be an altered wetland area and/or altered watercourse. The regulated slopes and altered wetland/watercourse areas on the project site were depicted on a Natural Features Inventory (NFI) submitted in September 2005, prior to submittal of the site plan. The City’s biologists reviewed the original NFI, and it was approved by the City on October 13, 2005. A revised NFI was submitted in March 2007. The revised NFI removed the man-made slopes from the regulated slope areas, and made other minor changes based upon comments from the staff of the Growth Management Department. The City’s biologists reviewed the revised NFI, and it was approved by the City on August 24, 2007. The Association questioned the change in the amount of regulated slopes identified on the project site, but it did not otherwise contest the accuracy of the NFIs. Roger Wynn, the engineer of record for the project, testified that the amount of regulated slopes on the project site changed because the man-made slopes were initially included in the calculation but were later removed. That testimony was corroborated by the James Lee Thomas, the engineer who coordinated the Growth Management Department’s review of the project. The Project (1) Generally The project consists of 78 townhome/condominium units in 14 two-story buildings. It was stipulated that the density of the project is 7.02 units per acre, which is considered “low density” under the Comprehensive Plan and the LDC. The stipulated density is calculated by dividing the 78 units in the project by the 11.11 acres on the project site in the R-4 zoning district. If the entire acreage of the project site was used in the calculation, the project’s density would be 5.61 units per acre. All of the buildings will be located on the R-4 zoned portion of the project site. Five of the buildings (with 21 units) will have access to Monticello Road to the east by way of Voncile Avenue. The remaining nine buildings (with 57 units) will have access to Old Bainbridge Road to the west by way of Voncile Avenue. There is no vehicular interconnection between the eastern and western portions the project. There is no vehicular access to the project from the north or south. However, pedestrian interconnections are provided to the north and south. The only development on the RP-1 zoned portion of the project site is the extension of Voncile Avenue onto the site. The remainder of the RP-1 zoned property will be placed into a conservation easement. The Voncile Avenue extension will end in a cul-de-sac at the eastern boundary of the R-4 zoned portion of the project site. The extension will be constructed to meet the City’s standards for public roads, and it will comply with the City’s Street Paving and Sidewalk Policy. The other streets shown on the site plan are considered private drives because they are intended to serve only the project. Those streets and the internal cul-de-sacs have been designed to allow for the provision of City services - – e.g., trash, recycling, fire -– but they do not have to meet the City’s Street Paving and Sidewalk Policy. It was stipulated that the project is consistent with the City’s Driveway and Street Connection Regulations, Policies and Procedures. It was stipulated that the project is consistent with the City’s Parking Standards. The City’s Parking Standards Committee approved tandem parking spaces and an increase in the number of parking spaces in the project. It was stipulated that the project is consistent with the City’s concurrency policies and regulations. A preliminary certificate of concurrency was issued for the project on March 9, 2007. It was stipulated that the project is consistent with the City’s requirements for utilities -- e.g., water, sewer, stormwater, electricity, gas, cable -- and infrastructure for those utilities. However, the Association still has concerns regarding various aspects of the project’s stormwater management system. See Part D(3), below. (2) Site Plan Application and Review On August 4, 2005, the City issued Land Use Compliance Certificate (LUCC) No. TCC060219, which determined that 94 multi-family residential units could be developed on the R-4 zoned portion of the project site. The LUCC noted that the RP-1 zoned portion of the project site “is not eligible for multi-family development,” and that the “[a]ttainment of the full 94 units on the R-4 zoned property may be limited by the presence of regulated environmental features that will be determined via an approved Natural Features Analysis [sic].” On March 10, 2006, Skipper submitted a Type B site plan application for the project. The initial site plan included 82 multi-family units in 13 buildings; an extension of Heather Lane onto the project site to provide vehicular access to the north; vehicular access to the west by way of Voncile Avenue; and no vehicular access to the east. The Tallahassee-Leon County Planning Department (Planning Department) and other City departments expressed concerns about the initial site plan in memoranda prepared in advance of the April 10, 2006, DRC meeting at which the site plan was to be considered. A number of neighboring property owners submitted letters to the DRC and other City departments detailing their concerns about the project. A number of neighboring property owners also sent “petitions” to Skipper urging him to reduce the density of the project and to construct single-family detached units rather than multi-family units. The DRC “continued” -- i.e., deferred consideration of -- the site plan at its April 10, 2006, meeting as a result of the concerns expressed by the City departments. The site plan was also “continued” by the DRC at each of its next 10 meetings. Skipper submitted a revised site plan in February 2007 that reduced the number of units in the project from 82 to 78; eliminated the extension of Heather Lane onto the project site; added the connection to Voncile Avenue on the east; and made other changes recommended by City staff. It is not unusual for a site plan to be revised during the DRC review process. Indeed, Mr. Wynn testified that it is “very uncommon” for the initial version of the site plan to be approved by the DRC and that the approved site plan is typically an “evolution” of the initial site plan. That testimony was corroborated by the testimony of Dwight Arnold, the City’s land use and environmental services administrator. The City departments that reviewed the revised site plan -- growth management, planning, public works, and utilities -- each recommended approval of the site plan with conditions. A total of 21 conditions were recommended, many of which were standard conditions imposed on all site plans. The DRC unanimously approved the site plan with the 21 conditions recommended by the City departments at its meeting on March 26, 2007. The DRC was aware of the neighborhood’s objections to the project at the time it approved the site plan. Mr. Arnold, testified that the Growth Management Department was “extraordinarily careful” in its review of the site plan as a result of the neighborhood’s concerns. The site plan received into evidence as Joint Exhibit J13 is an updated version of the revised site plan submitted in February 2007. It incorporates all of the DRC conditions that can be shown on the site plan. For example, the updated site plan shows the “stub-out” at the southern property boundary and the pedestrian interconnections requested by the Planning Department as well as the appropriately designated handicapped parking spaces requested by the Public Works Department. The site plan review process typically takes six months, but Mr. Arnold testified that the process can take longer depending upon the number of issues that need to be addressed. Mr. Arnold testified that there is nothing unusual about the one-year period in this case between the submittal of the site plan and its approval by the DRC. Issues Raised by the Association The primary issues raised by the Association in opposition to the project are the alleged incompatibility of the proposed multi-family development with the surrounding single- family neighborhood; concerns about increased traffic in and around the neighborhood; concerns relating to the design of the project’s stormwater management system and the potential for stormwater run-off from the project to cause flooding in the neighborhood; and the alleged inadequate protection of the environmentally sensitive features on the project site. The public comment presented at the final hearing generally focused on these same issues, but concerns were also raised regarding the potential for increased crime and decreased property values in the neighborhood if college-aged students move into the proposed multi-family units on the project site. Compatibility Protecting the integrity of existing residential neighborhoods from incompatible development is a specifically emphasized “growth management strategy” in the Land Use Element of the Comprehensive Plan. Policy 2.1.1 [L] of the Comprehensive Plan promotes the protection of “existing residential areas from encroachment of incompatible uses that are destructive to the character and integrity of the residential environment.” Paragraph (c) of Policy 2.1.1 [L] requires the adoption of land development regulations to limit future higher density residential development adjoining low density residential areas. Such limitations “are to result in effective visual and sound buffering (either through vegetative buffering or other design techniques) between the higher density residential uses and the low density residential uses; [and] are to discourage vehicular traffic to and from higher density residential uses on low density residential streets.” These Comprehensive Plan provisions are implemented through the buffering requirements in LDC Section 10-177, which requires landscaping and fencing to be installed between potentially incompatible land uses. The width of the buffer and the amount of the landscaping required vary depending upon the proposed and existing land uses. The multi-family development proposed in the project at 7.02 units per acres is not inherently incompatible with the existing single-family neighborhood surrounding the project site. Indeed, as noted above, both uses are considered low density under the LDC and the Comprehensive Plan. Multi-family residential development on the project site furthers the intent of the R-4 zoning district in that it provides for a “transition” between the commercial uses in the Old Bainbridge Square shopping center to the south of the project site and the single-family residential neighborhood to the north of the project site. The Planning Department expressed concerns about the initial site plan’s compatibility with the surrounding neighborhood in its March 24, 2006, memorandum to the DRC. The memorandum recommended that the project be redesigned -- with a lower density and/or clustered single-family lots or townhomes - - in an effort to make it more compatible with the surrounding neighborhood. The Planning Department does not have the authority to require a project to be redesigned; it can only recommend that the developer consider alternative designs. The Planning Department does not have compatibility concerns with the revised site plan. Indeed, Mary Jean Yarbrough, a senior planner with 10 years of experience with the Planning Department, testified that “the site plan has changed significantly from the first submittal” and that it now “meet[s] the compatibility requirements of the comprehensive plan.” Similarly, Wade Pitt, an expert in local land use planning, testified that the project meets the compatibility requirements in the Comprehensive Plan and the LDC. Mr. Pitt also testified the project furthers the intent of the R-4 zoning district by providing a transition between the commercial uses to the south of the project site and the single-family residential uses to the north of the project site. Some of the changes in the site plan mentioned by Ms. Yarbrough that led to the Planning Department no longer having compatibility concerns with the project were the elimination of the Heather Lane interconnection; the reduction in the number of units in the project; the reduction in the size of the eastern stormwater pond; the inclusion of buffers in the project; and the elimination of the road through the project, which allowed for more extensive conservation areas in the central portion of the project site. A Type D buffer is required where, as here, the existing use is single-family and the proposed use is multi- family. The width of a Type D buffer can range from 30 to 100 feet, but the wider the buffer, the less landscaping that is required. The site plan includes a 30-foot wide buffer along the project site's northern and western property lines, as well as along the eastern border of the R-4 zoning district on the project site.1 The 30-foot Type D buffer is required to contain at least 12 canopy trees, six understory trees, and 36 shrubs for every 100 linear feet of buffer. The northern boundary of the R-4 zoned portion of the project site is approximately 1,600 feet long, which means that there will be approximately 864 plants -- 192 canopy trees, 96 understory trees, and 576 shrubs -- in the buffer between the proposed multi-family units and the neighborhood to the north of the project site. The Association contends that a 60-foot Type D buffer should have been required. However, Ms. Yarbrough persuasively testified that the 60-foot buffer actually provides less buffering because it is not required to be as densely vegetated as the 30-foot buffer provided on the site plan. Portions of the buffer shown on the site plan overlap the designated conservation areas that will be subject to the conservation easement on the project site. Mr. Arnold testified that it is not uncommon for buffers to overlap conservation areas. The conservation areas will be disturbed in those areas where the trees and shrubs are planted to comply with the landscaping requirements for the buffer. An eight-foot high fence will be constructed along the northern and western property lines. The site plan shows the fence several feet inside the property line, within the designated conservation areas. However, Mr. Arnold and City biologist Rodney Cassidy testified that the fence will have to be placed outside of the conservation areas along the property lines. LDC Section 10-177(f)(5) does not impact the placement of the fence on the property line as the Association argues in its PRO. That code section requires planting materials to be located on the outside of the fence “[w]hen residential uses buffer against other uses.” Here, the residential uses on the project are not being buffered against “other uses”; they are being buffered against the same type of use, residential. None of the six buildings on the northern side of the project site directly abut the buffer. Only one of the buildings is closer than 40 feet from the northern property line, and three of the buildings are as much as 80 feet from the northern property line. The only development actually abutting the 30-foot buffer is the retaining walls for the stormwater management ponds. The walls will be covered with vines to minimize their aesthetic impact on the adjacent properties. It is not necessary that the trees and shrubs in the buffer reach maturity before a certificate of occupancy is issued; all that is required is that the appropriate type and number of trees and shrubs are planted. The project is adequately buffered from the existing single-family residences to the north and west of the project site. The buffer requirements in the LDC have been met. In addition to the landscaped buffer and fence, impacts of the project on the surrounding neighborhood have been mitigated by the placement of parking on the interior of the site and by the elimination of the Heather Road interconnection that was in the initial site plan, which would have directed more traffic from the project onto the neighborhood streets. In sum, the more persuasive evidence establishes that the project is not inherently incompatible with the surrounding single-family uses and that its impacts on the surrounding neighborhood have been mitigated as required by the LDC. Thus, there is no basis to deny the site plan based upon the incompatibility concerns raised by the Association. Traffic Concerns There is currently considerable traffic on Old Bainbridge Road, particularly during rush hour. This makes it difficult for residents of the neighborhood north of the project site to turn left onto Old Bainbridge Road from Joyner Drive. The amount of traffic on Old Bainbridge Road is in no way unique. There are many streets in the City that have similar amounts of traffic, particularly during rush hour. Vehicles leaving the project will utilize Voncile Avenue, Joyner Drive, and Monticello Drive to access Old Bainbridge Road or Tharpe Street. Those streets are considered collector roads, not local streets. The number of vehicles expected to utilize the local streets in the neighborhood to the north of the project site will not be significant from a traffic engineering perspective. The initial version of the site plan showed Heather Lane being extended onto the project site and connected with a street running through the project. This interconnection, which is no longer part of the site plan, would have increased the amount of traffic on the surrounding neighborhood streets because Heather Lane runs through the middle of the neighborhood to the north of the project site. There are expected to be less than 50 trips entering the eastern portion of the project during the afternoon peak hour, and less than 20 trips entering the western portion of the project during the afternoon peak hour. The exiting trips during the afternoon peak hour are expected to be about half those amounts. The number of trips generated by the project fall below the one percent or 100 trip threshold in the City’s concurrency regulations. A preliminary certificate of concurrency, No. TCM060026, was issued for the project on March 9, 2007, indicating that there will be adequate capacity of roads (and other infrastructure) to serve the project. No credible evidence to the contrary was presented. LDC Section 10-247.11 requires properties in the R-4 zoning district to have vehicular access to collector or arterial streets if the density is greater than eight units per acre. Where, as here, the density of the project is less than eight units per acre, vehicular access to local streets is permitted. In any event, as noted above, access to the project site is by way of Voncile Avenue, which is considered a collector road. In sum, there is no basis to deny the site plan based upon traffic concerns because the project satisfies the City’s traffic concurrency requirements. Stormwater Management/Flooding Concerns Currently, stormwater run-off from the project site flows uncontrolled across the site, down the slope towards the neighborhood to the north that is represented by the Association. The neighborhood had severe flooding problems in the past. The City resolved those problems by reconfiguring the stormwater management system and constructing several stormwater ponds in the neighborhood. The Association is concerned that the stormwater run- off from the project will cause flooding in the neighborhood. The Association also has concerns regarding the design of the stormwater ponds and their proximity to the neighborhood. The project site is located in the upper reaches of a closed basin. As a result, the project’s stormwater management system is subject to the additional volume control standards in LDC Section 5-86(e), which requires the volume of post- development stormwater run-off from the site to be no greater than pre-development run-off. The project’s stormwater management system provides volume control, rate control, and water quality treatment. The system complies with all of the design standards in LDC Section 5-86, including the additional closed basin standards in paragraph (e) of that section. The project will retain all post-development stormwater run-off on site by capturing it and routing it to two stormwater ponds located in the north central portion of the project site. Stormwater run-off will be captured by roof collectors on the buildings and inlets on the streets and then routed to the stormwater ponds through underground pipes. The two stormwater ponds are designed with retaining walls on their north/downhill sides. The walls will have a spread footing, which was a design change recommended by Mr. Thomas to improve the functioning of the ponds. The walls will be eight to nine feet at their highest point, which is less than the 15-foot maximum allowed by LDC Section 5-86(f)(7), and they will be covered with vegetation as required by that section. Access to the stormwater ponds for maintenance is provided by way of the 20-foot wide “pond access” easements shown on the site plan for each pond. These easements meet the requirements of LDC Section 5-86(g)(2). The stormwater ponds are roughly rectangular in shape, rather than curvilinear. The shape of the ponds is a function of the retaining walls that are required because of the sloping project site. The stormwater ponds have been visually integrated into the overall landscape design for the site “to the greatest extent possible” as required by LDC Section 5-86(f)(10). The south side of the ponds will be contoured with landscaping, and the walls around the ponds will be covered with vegetation. The final design of the stormwater ponds and the retaining walls is evaluated during the permitting phase, not during site plan review. The walls must be designed and certified by a professional engineer, and the construction plans submitted during the permitting phase will include a detailed analysis of the soil types on the site to determine the suitability of the walls and to ensure the proper functioning of the ponds. The project’s stormwater management system will also collect and control the overflow stormwater run-off from the existing stormwater pond on the Old Bainbridge Square shopping center site. That run-off currently overflows out of an existing catch basin on the eastern portion of the project site and flows uncontrolled across the project site, down the slope at a rate of 6.7 cubic feet per second (CFS). After the project is developed, that run-off will flow out of a redesigned catch basin at a rate of 0.5 CFS, down the slope through a conservation area, to a graded depression area or “sump” on the northern property line, and ultimately to the existing stormwater management system along Heather Lane. Mr. Arnold and Mr. Cassidy testified that the reduced flow down the slope will benefit the conservation area by reducing erosion on the slope. Mr. Cassidy further testified that he was not concerned with the flow through the conservation easement forming a gully or erosion feature or otherwise altering the vegetation in that area, and that potential impacts could be addressed in a management plan for the conservation area, if necessary. The stormwater ponds and other aspects of the project’s stormwater management system will be privately owned and maintained. However, the operation and maintenance of the system will be subject to a permit from the City, which must be renewed every three years after an inspection. The City can impose special conditions on the permit if deemed necessary to ensure the proper maintenance and function of the system. The more persuasive evidence establishes that the project’s stormwater management system meets all of the applicable requirements in the LDC. On this issue, the testimony of Mr. Thomas and Mr. Wynn was more persuasive than the stormwater-related testimony presented on behalf of the Association by Don Merkel. Mr. Merkel, a former engineer, “eyeballed” the project site and the proposed stormwater management system; he did not perform a detailed analysis or any calculations to support his criticisms of the project’s stormwater management system. In sum, there is no basis to deny the site plan based upon the stormwater management/flooding concerns raised by the Association. Protection of Environmental Features on the Project Site The NFI is required to depict all of the regulated environmental features on the site, including the regulated slopes. The revised NFI approved by the City in August 2007 accurately depicts the environmentally sensitive features on the project site. The environmental features regulated by the City include “severe grades,” which are slopes with grades exceeding 20 percent, and “significant grades,” which are slopes with 10 to 20 percent grades. The project site contains 5.74 acres (250,275 square feet) of “significant grades” and 1.58 acres (68,835 square feet) of “severe grades.” Those figures do not include man-made slopes in the existing drainage easements across the site, which are not subject to regulation. There are 0.76 acres (33,056 square feet) of severe grades on the R-4 portion of the project site that are regulated as significant grades because of their size and location. Thus, there are a total of 6.50 acres (283,331 square feet) of slopes regulated as significant grades on the project site. LDC Section 5-81(a)(1)d. provides that 100 percent of severe grades must be protected and placed in a conservation easement, except for severe grades that are less than one- quarter of an acre in size and located within an area of significant grades that are regulated as significant grades. LDC Section 5-81(a)(2)d. provides that a minimum of 50 percent of significant grades must be left undisturbed and placed in a conservation easement. LDC Section 5-81(a)(2)d.1. provides that the significant grades to be protected are those areas “that provide the greatest environmental benefit as determined by the director [of growth management] (i.e., provides downhill buffers, protects forested areas, buffers other protected conservation or preservation areas, or provides other similar environmental benefits).” The Environmental Impact Analysis (EIA) included with the site plan shows that 100 percent of the severe slopes that are regulated as such are protected and will be placed in a conservation easement. The EIA shows that a total of 3.05 acres (133,002 square feet) of the significant grades on the project site will be impacted. That figure is 46.9 percent of the total significant grades on the project site, which means that 53.1 percent of the significant grades will be undisturbed and placed into a conservation easement. It is not entirely clear what environmental benefit is provided by some of the smaller conservation areas shown on the site plan, such as those between several of the buildings, but Mr. Cassidy testified that he took the criteria quoted above into consideration in determining that the site plan meets the applicable code requirements and is “approvable." Moreover, Mr. Arnold testified that similar “small pockets” of conservation areas are located in other areas of the City and that fencing or other appropriate measures can be taken to ensure that the areas are not disturbed. The EIA will be approved simultaneously with, and as part of the site plan. The conservation easement is not required during site plan review. Rather, LDC Section 5-81(b) requires the easement to be recorded no later than 30 days after commencement of site work authorized by an environmental permit. LDC Section 5-81(a)(2)d.1. provides that development activity in the area subject to the conservation easement is prohibited, except for “vegetation management activities that enhance the vegetation and are specifically allowed in a vegetation management plan approved by the director [of growth management].” LDC Section 5-81(b) provides that a management plan for the area subject to a conservation easement “may be approved provided the activity does not interfere with the ecological functioning of the conservation or preservation area and the activities are limited to designs that minimize impacts to the vegetative cover.” That section further provides that the management plan is to be approved “during the [EIA].” Mr. Cassidy testified that an approved management plan is required in order to plant trees in a conservation area. He further testified that impacts related to the construction of the buffer fence could be addressed in the management plan, if necessary. No management plan has been prepared or approved for the project even though there will be planting in the conservation areas that overlap the 30-foot Type D buffer. In sum, more persuasive evidence establishes that the regulated environmentally sensitive features on the project site are accurately depicted in the NFI; that the required amounts of regulated slopes are protected on the site plan; and that, subject to approval of a management plan for the plantings in the buffer as part of the EIA, the project complies with the requirements of the LDC relating to the protection of environmentally sensitive features. Other Issues The final hearing was properly noticed, both to the parties and the general public. Notice of the final hearing was published in the Tallahassee Democrat on September 9, 2007. An opportunity for public comment was provided at the final hearing, and 16 neighboring property owners spoke in opposition to the project. A number of the concerns raised by the Association and the neighboring property owners who spoke at the hearing are permitting or construction issues, not site plan issues. For example, issues related to the engineering specifications for the stormwater pond retaining walls and issues related to the protection of the conservation areas from construction impacts will be addressed and monitored as the project moves through the permitting process. Mr. Arnold testified that Association and neighboring property owners are free to provide input and express concerns on those issues to the appropriate City departments as the project moves through permitting and construction.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Planning Commission approve the Type B site plan for the Park Terrace Townhomes project, subject to the 21 conditions recommended by the DRC and additional conditions requiring: the eight-foot high buffer fence to be located on the property lines, outside of the designated conservation areas; and a management plan to be approved for the conservation areas that will be disturbed through the plantings required in the Type D buffer. DONE AND ENTERED this 7th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 7th day of November, 2007.
Findings Of Fact Fred Thomas owns a home and lot on the beach in Clearwater at 730 Eldorado Avenue, Mandalay Subdivision, Block 2, Lot 8, now zoned RS-8 (single family residential). The Thomas house was built 30 years ago when front yard setbacks for the area were only 10 feet and there were no open space requirements. Now the front setback in the area is 25 feet, and Section 135.029(8) of the Clearwater Land Development Code now requires lots in RS-8 zones to have a minimum open space of 35 percent of the lot and 40 percent of the front yard. There are many properties in the area of the Thomas house that maintain pre- existing non- conformities to the current setback and open space requirements. The Thomas property, in addition to the pre-existing setback non-conformity, had only 26 percent open space overall and no open space at all (all concrete) in the front yard. In 1987, Thomas undertook renovations to his house. During construction, Thomas' concrete front yard deteriorated from additional cracking, and he decided to replace the concrete with brick pavers. He removed the concrete but then was required to get a building permit for this work. The building permit was not granted because the placement of brick pavers in the front yard violated the open space requirements. Thomas applied for a variance to replace the concrete with brick pavers and later modified the application to be allowed to have 29 percent lot coverage and 12 percent front yard coverage with open space. The modified application was denied by the DCAB after hearing on February 11, 1988, and Thomas took this appeal. Thomas also filed another variance application to be allowed to have 30 percent lot coverage and 16.8 percent front yard coverage with open space. This application was heard on March 10, 1988, and this time the DCAB granted the application. The only open space required under the granted variance not required under the denied variance application is a 10' by 10' square on the far left side of the front yard (facing the house). Thomas claims that this open space requirement prevents him from using a narrow concrete alley to the left of the house (and perhaps the concrete apron in the back of the house) for guest parking, leaving him with a two-car garage and the brick paved area directly in front of the garage that could accommodate two cars but would block the garage. Lack of guest parking would create a hardship of sorts on Thomas. There is no on-street parking in the area, and the Clearwater Police vigorously patrol and ticket violators in the area. The brick paved spaces in front of the garage could be inconvenient to the owners of the vehicles parked in the garage (probably the Thomases) and conceivably could block the cars in the garage temporarily under some circumstances. However, Thomas is incorrect in his presumption that guest parking in the alley and back of the house would be blocked by the 100 square feet of open space required under the granted variance but not under the denied variance application.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)
Findings Of Fact On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states: Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required." The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
The Issue This hearing officer appeal under Section 4-505 of the City of Clearwater Community Development Code (Code) is the second of two administrative appeals available to and taken by Appellant, Deborah Groen Sobeleski (Sobeleski) under the Code. The issue in this second appeal is whether to sustain the decision of the City of Clearwater Community Development Board (CDB). The CDB's decision, made under Section 4-504 of the Code, was to allow Sobeleski's earlier Application for Administrative Appeal to the CDB from a Development Order (DO) issued by the City of Clearwater Community Development Coordinator (CDC) to remain on the CDB's consent agenda, which had the effect of denying the Application for Administrative Appeal and confirming the CDC's DO without a quasi-judicial hearing for receipt of additional evidence. The CDC's DO granted, with conditions, the Flexible Standard Development Application filed by Appellee, Christopher Mariani (Mariani, or Applicant), and subsequently amended, for a deviation to allow construction of a dock exceeding the 60-foot maximum length otherwise allowed by the Code.
Findings Of Fact On January 18, 2002, Appellee, Christopher C. Mariani (Mariani, or Applicant), filed a Flexible Standard Development Application for a deviation from Section 3-601.C.1.b.2 of the City of Clearwater Community Development Code (the Code) to allow construction of a 101-foot long dock (98 feet in length with a 3-foot step-down) where 60 feet would be the maximum otherwise allowed by the Code. The deviation from Code apparently was requested because a Pinellas County Department of Environmental Management Water and Navigation Report dated November 26, 2001, stated: Seagrass beds are located along this entire property, and extend out to a maximum of 65 ft. from the seawall in the area of the proposed dock although it becomes sparse at approximately 60 ft. It is the policy of this Department to limit structures over seagrasses to 4 ft. in width and to place the terminal platforms and boat slips beyond the limits of the seagrasses wherever possible. At the time the application was filed, Section 4-505 of the Code provided that, in an appeal to a hearing officer from a decision of the City of Clearwater Community Development Board (CDB), the record before the CDB could be "supplemented by such additional evidence as may be brought forward during the hearing"; and the appellant's burden was to show that the CDB's decision could not be "sustained by the evidence before the board and before the hearing officer." The "City of Clearwater Planning Department Staff Report for 2/14/02 DRC Meeting" recommended flexible standard development approval for a 92-foot long dock.3 The stated "Bases for approval" were: compliance with the flexible standard development criteria under Section 3-601.C.1.g.4 of the Code; compliance with the general applicability criteria under Section 3-913 of the Code; and compatibility with the surrounding area. The Staff Report noted: (1) "there are no navigational concerns with the proposed development"; and (2) "the proposal is more environmentally sensitive than the existing5 dock and constitute an improvement over existing conditions." The Report also stated that, since only one of the three criteria in Section 3- 601.C.1.g. need be met, similarity to surrounding dock patterns was not applicable but that "the proposed dock, as amended, will be similar to surrounding dock patterns." By letter dated March 5, 2002, Mariani amended his application to: decrease the length of the proposed dock to 95 feet; reduce the roof length over the larger capacity boat lift from 48 feet to 38 feet (to match the roof length over the smaller capacity lift); and reduce the total dock square footage to 476.25 square feet versus the 498 feet previously requested. On or about April 14, 2002, Mariani submitted to the City a set of "Dock Plans" for a 92-foot long dock.6 The document included "Diagram A Permittable Construction" and "Diagram B Proposed Construction." The apparent purpose was to contrast the dock Mariani would have been permitted to build in the absence of seagrasses with his proposed dock.7 On May 2, 2002, Section 4-505 of the Code was amended to provide that the appeal hearing before a hearing officer consists solely of reception of the record before the CDB and oral argument and that the burden on appeal to the hearing officer is for "the appellant to show that the decision of the [CDB] cannot be sustained by the evidence before the [CDB], or that the decision of the [CDB] departs from the essential requirements of law." Under the amendment, no other evidence is to be considered.8 By letter dated July 22, 2002, the CDC9 issued a DO stating concurrence with the DRC's "findings." Except for this reference, the record-on-appeal does not contain any evidence of the DRC's recommendation or any written findings by the DRC.10 But the CDC approved Mariani's application, as amended, upon the same "Bases for approval" contained in the "City of Clearwater Planning Department Staff Report for 2/14/02 DRC Meeting," with the following conditions: That a building permit for the proposed dock only be issued concurrently with, or subsequent to, building permit issuance for a principal, residential structure on the site; That the proposed dock be relocated farther east (with the dock head centered on the midpoint of the waterfront property line, as measured at the seawall) and constructed perpendicular to the waterfront property line; That the relocation of the dock meet all criteria under Section 3-601.C.1; and That revised plans reflecting conformance with condition #2 be submitted with the building permit application, to the satisfaction of staff. The DO then stated: "The approval is based on and must adhere to the site plan dated received April 15, 2002, or as modified by condition #2."11 On July 26, 2002, Sobeleski filed an Application for Administrative Appeal to the CDB from the CDC's decision. It included numerous exhibits. It appears that not all of the Application for Administrative Appeal and attachments were presented to the CDB for its consideration on August 20, 2002. One attachment was a letter dated March 27, 2002, from Sobeleski's attorney to the CDC and the City's Land Planner. This letter had 15 exhibits attached, but the CDC removed Exhibits 9-15 from the version of the letter presented to the CDB for its consideration. However, the letter stated that Exhibits 10-15 were attached for "ease of review," and the CDC separately presented copies of the documents contained in Exhibits 12-15 for the CDB's consideration. As for the other exhibits removed from the letter, Exhibit 9 was a computer diskette containing the photographs that were presented to the CDB for its consideration as Exhibits 1-8. Exhibit 10 was a letter dated March 6, 2002, from individuals named Blum to the City Planner stating no objection to the proposed dock. Exhibit 11 was a letter dated March 7, 2002, from Mariani to the CDC responding to opposition from Sobeleski and another individual to the proposed dock. While Exhibit 11 apparently was not presented to the CDB for its consideration, it clearly was adverse to Sobeleski's position and was addressed at length in the letter from Sobeleski's attorney dated March 27, 2002. In On August 20, 2002, the CDB considered the documents described in the immediately preceding Finding, together with a "City of Clearwater Planning Department Summary of Events," dated August 20, 2002, as well as oral presentations by the CDC, counsel for Sobeleski, and counsel for Mariani. The audiotape- recording of the oral presentations reveals that, upon the advice of the CDC and the Assistant City Attorney, the CDB attempted to limit the oral presentations to the question whether the CDB should remove Sobeleski's Application for Administrative Appeal from the CDB's consent agenda so as to cause a quasi-judicial hearing to be conducted, or should leave it on the consent agenda, which would result in upholding the CDC's decision. After being restricted by the CDB from addressing the merits, counsel for Sobeleski argued for a quasi- judicial hearing for reasons of "public policy." The CDB then allowed counsel for Mariani to address the merits in arguing that Sobeleski had made no showing as to why the CDC decision was incorrect so as to justify a quasi-judicial hearing.12 The Assistant City Attorney concurred that some such showing should be necessary to justify removal from the consent agenda. After the oral presentations, the CDB voted to leave Sobeleski's Application for Administrative Appeal on the CDB's consent agenda, thereby upholding the CDC's decision to issue the DO. On August 26, 2002, Sobeleski filed an Appeal Application from the CDB's decision. On September 20, 2002, the City referred the Appeal Application to DOAH under Section 4-505 of the Code. However, the referral letter from counsel for the City stated: Please note that I am not forwarding Exhibits 1-15 to the Appeal Application. Items 1-9 and 12-15 are already of record before the Board and are thus otherwise included. Items 10 and 11 were not of record below and are not being included, on that basis. Although the manner in which the record-on-appeal was prepared made it exceedingly difficult to ascertain, it appears that the referral actually failed to forward the entirety of Exhibit B to the Appeal Application, which consisted of letters from Appellant's counsel dated August 16 and March 27, 2002.13 The documents called "Exhibits" or "Items" in the referral letter actually were Exhibits 1-15 attached to the letter from Appellant's counsel dated March 27, 2002. As previously found, the CDC decided not to present to the CDB all attachments to the letter dated March 27, 2002. See Finding 9, supra. For that reason, the Assistant City Attorney "redacted" the Appeal Application by deleting the items not in fact presented (Exhibits 9, 10, and 11), as well as the items identical to documents separately presented (Exhibits 12-15), to the CDB for its consideration. See Finding 11, supra.14
Findings Of Fact On or about August 11, 1987 an application for conditional use approval to allow on-premises consumption of alcoholic beverages (4COP) was filed on behalf of Joseph W. McGoldrick for property located at 2848 Gulf to Bay Boulevard in Clearwater, Florida. The property is zoned general commercial (CG) and multiple family residential (RM-12). A public hearing before the Planning and Zoning Board was held on September 1, 1987. The Planning and Zoning Board voted 5-1 to grant conditional use approval for this application. A timely appeal was taken by Petitioners on September 15, 1987. Petitioners are surrounding property owners whose property is located within five hundred feet of the subject property. With this application, McGoldrick seeks approval for on-premises consumption of alcoholic beverages since he intends to convert the use of the property to a nightclub. The parties stipulated that the property in question is within five hundred feet of several residences, including Petitioners'.
