Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
The Issue Whether Development Order 13-87 issued by the Monroe County Planning Commission on January 21, 1988, granting major conditional use approval to a project known as Residence Inn Resort should be approved.
Findings Of Fact Respondent Wigwam, Inc., is the present equitable owner of the subject parcel of land, is the successor to the development authorizations for a proposed hotel and marina known as Residence Inn Resort to be constructed on that parcel, and is the developer of the project. Respondent Peter Louis Edwards is the legal owner of the subject parcel of land. The subject parcel is a tract of land located at Mile Marker 52.4 on U.S. 1, on a portion of Government Lot 2, in Section 6, Township 66 South, Range 33 East on Key Vaca, Marathon, Monroe County, Florida. The site plan prepared for Ocean Resort now know as Residence Inn Resort, Marathon, Florida, by Kris Mihelich, Inc., last revision 9/3/87, pages SD-1 to SD-6 is the site plan approved by Monroe County for the subject parcel. The subject parcel consists of 4.82 acres of land above water located between U.S. 1 and the Atlantic Ocean. The subject parcel includes within its boundaries a dredged harbor at least 8 feet deep below mean sea level at mean low tide. The current Monroe County Land Use Maps show the land use designation for the subject parcel as Destination Resort (hereinafter "DR") for the oceanward three-quarters of the parcel and Suburban Residential (hereinafter "SR") for the landward one-quarter of the parcel adjacent to U.S. 1. The companion case, Residence Inn Resort v. Department of Community Affairs, DOAH Case No. 88-3469RGM (Final Order issued simultaneously herewith), is a challenge to a proposed rule of the Department of Community Affairs rejecting a portion of a Monroe County ordinance which would change the designation of the "SR" portion of the parcel to "DR" so that the entire parcel would be designated "DR." That rule challenge has been dismissed in the Final Order issued simultaneously with this Recommended Order. Accordingly, the designations for the subject parcel remain "DR" for the oceanward portion and "SR" for the landward portion. Even if the rule challenge had been successful thereby allowing the entire parcel to be designated "DR," the Findings of Fact and Conclusion of Law contained within this Recommended Order would remain the same. The Development Order under appeal in this cause, Planning Commission Resolution No. 13-87, would approve a major conditional use for the subject parcel. That Development Order would allow construction of a 96-unit hotel resort and would allow the harbor located within the property to be used as a marina. The 96-unit density is computed by including 24 transferrable development rights known as TDRs purchased by Wigwam, Inc., which increase the density on the subject parcel to 96-units. The maximum permittable density for this parcel designated "DR" in part and "SR" in part is not sufficient to allow a 96-room hotel. The maximum permittable density if the entire parcel were designated "DR," or as the parcel is now designated as partially "DR" and partially "SR," will not allow the development of 96 permanent dwelling units. Section 3-101.P-4. of the Monroe County Land Development Regulations provides that "permanent residential unit means a dwelling unit that is designed for, and capable of, serving as a residence for a full housekeeping unit which includes a kitchen composed of at least a refrigerator and stove." Section 3-101.T-2 of the Monroe County Land Development Regulations provides that "temporary residential unit means a dwelling unit used for transient housing such as a hotel, motel or guestroom that does not contain a kitchen " The 96 hotel rooms approved by Monroe County in the Development Order under review herein each include a kitchen. If each unit of the proposed Residence Inn Resort is constructed with a kitchen, as Resolution 13-87 would allow, each of the 96 units would be a permanent unit. The Institute of Transportation Engineering (hereinafter "ITE") Trip Generation Manual is a compilation of traffic data that has been accumulated over a number of years by transportation engineers on many types of land uses. The data has been categorized by land use and summarized in terms of average number of trips generated by each individual type of land use. The ITE studies of trip generation rates are performed by placing a standard traffic counter with a pneumatic hose at the entrances and exits to the land use in question. The traffic counter records both hourly and daily summaries of vehicle trips over the traffic counter. The ITE trip generation rate for hotels and motels is 10.189 daily trips per occupied room. The ITE trip generation rate for hotels is 8.7 trips per room on a weekday basis. The ITE definition of a hotel for the purpose of that trip generation rate is a place of lodging, providing sleeping accommodations, restaurants, a cocktail lounge, meeting and banquet rooms with convention facilities, and other retail and service shops. The only significant difference between the proposed Residence Inn Resort and the typical hotel studied in the ITE Trip Generation Manuel is that the proposed Residence Inn Resort has a marina. All of the other proposed amenities are typically found in ordinary hotels. The proximity of the proposed Residence Inn Resort to an airport is also not unusual for hotels. As discussed hereinafter, the marina, which is the only real distinguishing feature between hotels and the Residence Inn Resort, does not qualify for approval as part of this project since it is not in compliance with the Monroe County Land Development Regulations. A hotel providing 50 or more rooms is permitted as a major conditional use in a destination resort district only if the applicant has demonstrated through a traffic impact study prepared by a qualified professional that traffic generated by the use will not exceed 50% of the trips generated by a hotel or motel as shown in the Institute of Transportation Engineering Trip Generation Manual. Section 9-213.B.1.c., Monroe County Land Development Regulations. Prior to the issuance of the subject Development Order by Monroe County, Respondent Wigwam, Inc., prepared a transportation study for the proposed development. That transportation study did not demonstrate, and made no attempt to demonstrate, that the traffic generated by the proposed Residence Inn Resort would not exceed 50% of the trips generated by a hotel or motel as shown in the ITE Trip Generation Manual. On the contrary, the transportation report submitted to Monroe County simply utilized the same trip generation rates that appear in the third edition of the ITE Trip Generation Manual. A June 21, 1988, letter directed to Monroe County from Post, Buckley, Shuh and Jernigan after the Development Order under appeal in this cause had already issued indicates that Monroe County simply assumed that the proposed Residence Inn Resort would have a trip generation rate 50% less than the trips generated by a hotel or motel as shown in the ITE Trip Generation Manual. No traffic impact studies submitted to Monroe County prior to the issuance of the Development Order under review in this case support such a conclusion. Respondent Wigwam, Inc., presented the testimony of two experts in the field of transportation engineering, Dan Hoyt and Richard Mercer. Both Mr. Hoyt and Mr. Mercer had prepared transportation reports subsequent to the issuance of the Development Order under review in this cause, which concluded that the traffic generated by the proposed Residence Inn Resort would not exceed 50% of the trips generated by a hotel or motel as shown in the ITE Trip Generation Manual. Both believed that the number and type of amenities included in the proposed Residence Inn Resort would be so attractive that the hotel guests would not want to leave the premises. However, Mr. Hoyt's opinion is based upon a list of amenities significantly larger than the amenities actually approved for the Residence Inn Resort. A large part of Mr. Mercer's opinion is based on the assumption that the type of people that will be guests at the proposed Residence Inn Resort simply will not want to leave the hotel, and not upon any particular merit to the amenities planned for the hotel. Both experts testified that their conclusions were based upon their overall professional judgment rather than upon specific empirical data. The Department presented the testimony of one transportation expert, Rick Hall. Mr. Hall testified that there are two methods of demonstrating an "internal trip capture rate" (the retention of guests on-site due to the number of amenities which guests would normally have to travel to off-site) that is greater than what is normally expected. The first and best method is to take empirical measurements of similar types of facilities that are already constructed. In the case of Residence Inn Resort, an existing hotel or motel with a marina located in Monroe County would be a similar facility for purposes of taking traffic generation measurements. No one has performed such an empirical study for the proposed Residence Inn Resort. The second method of demonstrating a greater internal capture rate is to move into the theoretical realm, as was attempted by Mr. Hoyt and Mr. Mercer. However, when the internal capture rate predicted by Mr. Hoyt and Mr. Mercer is tested with common sense, as was ably done on cross-examination, it is apparent that the amenities of the proposed Residence Inn hotel are not sufficient to keep 50% of the average number of trips on-site. For example, 112 trips per day would have to be assigned to the 5-table barbecue picnic area, 50 trips per day assigned to the small beach, and numerous trips to the other small amenities. Messrs. Hoyt and Mercer did not increase the number of trips off-site for persons to purchase those items necessary to utilize the barbecue/picnic area or for preparing meals and snacks in the kitchens provided in each unit, did not consider the fact that the small beach anticipated to keep the guests of the 96- room hotel on-site would only be approximately 50 feet by 150 feet once constructed, and considered no data regarding actual use by hotel guests of the proposed small sports court based upon such usage at similar facilities. A more reasonable internal trip capture rate for the Residence Inn Resort is 20% of the ITE Trip Generation Manual rate. However, this 20% is attributed to the marina proposed for the project, which marina is disapproved in this Recommended Order as set forth below. The dredged harbor within the subject parcel is at least 8 feet deep. Just oceanward of the project boundary, the undredged ocean bottom shoals to less than 4 feet at mean low tide. This area is more than 4 feet deep measured from mean sea level. A marina is permitted as a major conditional use in a destination resort district provided that "the parcel proposed for development has access to water of at least 4 feet below mean sea level at mean low tide." Section 9- 213.B.2.a., Monroe County Land Development Regulations. The Land Development Regulations define the phrase "water of at least 4 feet below mean sea level at mean low tide" to mean locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, off-shore resources of particular importance shall mean ... shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet ... Section 3-101.W-1., Monroe County Land Development Regulations. The shallow water area just oceanward of the project boundary is comprised of a natural marine community of seagrass beds. The dominant species is turtle grass, also known as Thallassia. Monroe County Development Order No. 13-87 was rendered to the Department on April 7, 1988, and no earlier. The Department timely filed the Notice of Appeal and Petition in this cause. There is no basis for application of the doctrine of equitable estoppel in this proceeding, requiring the Department of Community Affairs and the Florida Land and Water Adjudicatory Commission to approve the Development Order issued by Monroe County which is the subject matter of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Florida Land and Water Adjudicatory Commission issue a Final Order: Denying the proposed 96-unit Residence Inn Resort and marina as preliminarily approved by Monroe County in the Development Order appealed herein; Providing that the proposed hotel without marina may be approved if: None of the hotel rooms contain kitchens; The density is reduced to comply with the current "DR" and "SR" land use designations; and Wigwam, Inc., is able to demonstrate a 50% reduction in trips from the motel and hotel rate as shown in the ITE Trip Generation Manual. Providing further that a different project may be approved so long as it complies with the Monroe County Land Development Regulations. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of October, 1989. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-3450 Petitioner's proposed Findings of Fact numbered 1-24 have been adopted either verbatim or in substance in this Recommended Order. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 1-3, 5, and 7-12 have been adopted either verbatim or in substance in this Recommended Order. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration herein. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 13 and 21-25 have been rejected as not constituting findings of fact but rather as constituting statements of a party's position. Respondent Wigwam, Inc.'s, proposed Findings of Fact numbered 14-20 and 26-32 have been rejected as being irrelevant to the issues under consideration in this cause. Respondent Wigwam, Inc.'s, proposed Finding of Fact numbered 33 which is 2 1/2 pages long has been rejected primarily because it is contrary to the weight of the credible evidence in this cause. Respondent Wigwam, Inc.'s, proposed Finding of Fact numbered 34 has been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 William J. Roberts, Esquire Roberts, Egan and Routa 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Fred Tittle, Esquire Tittle & Tittle, P. A. Post Office Drawer 535 Tavernier, Florida 33070 Lucien Proby, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Larry Keesey, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning and Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue The sole issue to be addressed is whether the Petition to contract the Gateway Services District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioner is seeking the adoption of a rule by the Commission to contract a community development district currently comprised of approximately 5,474 acres located within the boundaries of unincorporated Lee County, Florida and the incorporated City of Fort Myers, Florida. The name for the District, after contraction, will be the Gateway Services Community Development District. At the time the Petition was filed, the District consisted of approximately 5,324 acres. However, on July 29, 2002, a Rule Amendment adopted by the Commission, and filed with the Secretary of State became effective, expanding the District to approximately 5,474 acres. The Petitioner seeks to contract the District by approximately 973 acres. The District, after contraction, will encompass approximately 4,501 acres. All of the property proposed to be contracted out of the District is located within the City of Fort Myers, Florida. The sole purpose of this proceeding was to consider the contraction of the District as proposed by the Petitioner. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioner's Composite Exhibit 9 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission, dated January 2002; the Addendum to the Petition, dated March 25, 2002; and the Second Addendum to the Petition, dated July 16, 2002; and the Third Addendum to the Petition, dated July 25, 2002. Ward testified that he had reviewed the contents of the Petition and Exhibits as supplemented and amended by the addenda to the Petition. Ward testified that the Petition and exhibits as supplemented and amended by the addenda, are true and correct to the best of his knowledge. Tilton testified that he had reviewed Exhibits 1, 2, and 3 of the Petition. Exhibit 1 is the metes and bounds legal description and sketch of the existing District boundaries. Exhibit 2 is the legal description and sketch of the contraction parcels. Exhibit 3 is the amended legal description and sketch of the District, after contraction. Tilton testified that the legal description of the existing CDD boundaries was true and correct, and would be amended by a proposed Rule Amendment filed with the Secretary of State July 9, 2002, and effective July 29, 2002. Tilton testified that Exhibit 2 truly and accurately depicted the legal description of the property proposed for contraction from the District. A Third Addendum to the Petition, filed with the Department of Administrative Hearings on July 29, 2002, identified a scrivener's error in the proposed Rule Amendment filed on July 9, 2002, and included a legal description and sketch of the land within the District, after the contraction. This legal description and sketch amends and replaces Exhibit 3 of the Petition. This legal description was certified as true and accurate by CES Engineering. Garland testified that his office had prepared Exhibit 7 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Garland also testified the SERC included with the Petition was true and correct to the best of his knowledge. Gnagey testified that at the time of the hearing, Worthington Holdings, Inc. was the owner of all of the lands to be contracted out of the District. Gnagey testified that a portion of the contraction property was under contract for sale. A consent and joinder to the Petition to Contract, executed by the contract purchaser was placed into the record as Exhibit 3. The Petition does not contain the written consent of the owners of all real property to be included in the new District after contraction; nor was there any documentation or other evidence demonstrating that either the District or those giving their written consent to the contraction have control by deed, trust agreement, contract, or option of one-hundred percent (100%) of the real property to be included in the new District, after contraction. See Conclusion of Law 65. Based upon the foregoing, the Petition and its exhibits, as amended and supplemented by the addenda to the Petition, are true and correct. Whether the contraction of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or of the effective local government comprehensive plan. Ward addressed whether the contraction of the District was inconsistent in any way with the State Comprehensive Plan, Chapter 187, Florida Statutes. Ward also reviewed the contraction of the District, in light of the local government comprehensive plans. Ward testified that the District would continue to assist the local government in providing infrastructure services required pursuant to its locally adopted comprehensive plan. Furthermore, since the State Comprehensive Plan requires local governments to provide infrastructure in accordance with locally adopted comprehensive plans, the District would continue to function and assist in meeting this objective of Chapter 187. Resolution No. 2002-11, adopted by the City Council of the City of Fort Myers, Florida, was introduced into evidence as Petitioner's Exhibit 5. Pursuant to this Resolution, the City Council made a determination that after the contraction, the District is not inconsistent with applicable elements or portions of the State Comprehensive Plan or the City of Fort Myers local comprehensive plan. The Florida Department of Community Affairs reviewed the Petition and provided a letter dated April 16, 2002, which was placed into Evidence as Petitioner's Exhibit 7. The letter states that the Petition A "is consistent with the goals, objectives and policies of Lee County's Comprehensive Plan.” Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan, the Lee County Comprehensive Plan, or City of Fort Myers Comprehensive Plan. Whether the area of land within the district, after contraction, is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Ward and Tilton. The lands that comprise the District, after contraction, will consist of approximately 4,501 acres, located within the borders of unincorporated Lee County, and the incorporated City of Fort Myers. From a management perspective, the District, after contraction, will continue to be sufficiently sized, compact and contiguous to be developed as a functional interrelated community. The property remaining within the District will continue to be amenable to receiving services through a community development district. From an engineering perspective, the District, after contraction, will still be larger than other community development districts. It is contiguous and relatively compact. The land remaining within the District can be well- served by water management facilities, water and sewer and irrigation, roads lighting, landscaping and parks provided by the District. From a development planning perspective, the owner of the property, which will be contracted out of the District, intends to market the contraction property for development as three separate, stand-alone communities. This property will be developed independently from the property remaining within the District. Its utility needs will be serviced by the City of Fort Myers. From development planning, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the district, after contraction, is the best alternative available for delivering community development services and facilities to the area that will be served by the contracted district. The District currently provides certain infrastructure improvements and facilities to the property which will remain in the District. Currently, no services or facilities are provided by the District to the property to be contracted out of the District. Ward, Tilton, and Garland testified concerning whether the District, as contracted, is the best alternative available for delivering community development services and facilities to the area remaining in the District. Ward testified that since the 1980's, the District has provided and maintained infrastructure which services the existing residents of the District, and is also available to service future residents of the District. The District is responsible for financing, operating and maintaining this infrastructure. Based upon its historical track record, and its current activities, the District will continue to serve these purposes. Tilton testified that, from an engineering perspective, the District is an excellent alternative for providing community services and facilities to the property remaining in the District because it provides a higher level of service than would be afforded by Lee County or the City of Fort Myers. This higher level of service meets the desire of the residents within the District. Garland testified that, from an economic perspective, the District as contracted, will still consist of approximately 5,799 equivalent residential units. There will be no financial impact to the landowners remaining in the District because neither the capital assessments nor the operations and maintenance assessments will be affected by the contraction. Currently, the contraction parcel is not taking any of the load for capital assessments or operations and maintenance assessments. Garland also testified that the contraction property is geographically closer to infrastructure facilities available from the City of Fort Myers, than it is to District facilities. Therefore, the District is not the best alternative for providing this infrastructure to the contraction property. From economic, engineering, and special district management perspectives, the District, after contraction, is the best alternative available for delivering community development services and facilities to the area that will continue to be served by the District. Whether the community development services and facilities of the district, as contracted, will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities which will continue to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the boundaries, as contracted, will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to remain within the District. Ward, Tilton, and Garland testified concerning whether the community development services and facilities of the district, as contracted, would be incompatible with the capacity and uses of existing local and regional community development services and facilities. Ward testified that the District provides services and facilities which compliment the general purpose local governments’ services and facilities. For example, the District has constructed drainage facilities. These services address the requirements for infrastructure of the local government. After contraction, the District will continue to provide these infrastructure services. Tilton testified that the services and facilities provided by the District work very well in concert with the adjacent facilities of the general purpose local government. The roadways, utilities, and water management facilities constructed by the District are integrated into the overall system of the adjacent areas. From a management perspective and an engineering perspective, the facilities and services to be provided by the District, after the contraction, will not be incompatible with the existing local and regional community development services and facilities. Whether the area that will be served by the district, after contraction, is amenable to separate special district government. As cited previously, from economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District, after contraction, will continue to require basic infrastructure systems. A determination was made when the District was formed, that the District could best provide these services. This determination will not change as a result of the contraction. From engineering, economic and management perspectives, the area that will be served by the amended District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Contract the Gateway Services District meets all of the required elements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to contract the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the landowners within the District after contraction, and the Petitioner. Beyond administrative costs related to rule adoption, the State and its citizens, are not anticipated to incur any costs from contracting the District. Administrative costs incurred by Lee County and the City of Fort Myers related to this Petition are minimal and should be offset by the filing fees paid by the Petitioner. Landowners remaining within the District will continue to pay non-ad valorem or special assessments for certain facilities. The contraction of District will have no impact on the level of capital assessments or operations and maintenance assessments paid by residents remaining in the District. Benefits to landowners in the District will continue to be a higher level of public services and amenities than might otherwise be available, construction, operation and maintenance of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. 45. Sections 190.046(1)(g) and 190.005(1)(a), Florida Statutes, require the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains a SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements 46. Sections 190.046(1)(g) and 190.005(1)(d), Florida Statutes, require the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in Lee County for four consecutive weeks prior to the hearing. The notice was published in The News-Press, a newspaper of general circulation in Lee County for four consecutive weeks, on June 18, 2002, June 25, 2002, July 2, 2002, and July 9, 2002. The Affidavit of Publication was placed into evidence as Petitioner’s Exhibit 4. Lee County Support for Establishment Pursuant to the requirements of Sections 190.046(1)(g) and 190.005(1)(b), Florida Statutes, Petitioner filed a copy of the Petition with the City of Fort Myers and Lee County prior to filing the Petition with the Commission. As permitted by Sections 190.046 and 190.005(1)(c), Florida Statutes, the City Council of the City of Fort Myers held a public hearing on March 4, 2002, to consider the contraction of the Gateway Services District. At the conclusion of its public hearing on March 4, 2002, the City Council adopted Resolution 2002-11 expressing support for the Commission to promulgate a rule contracting the Gateway Services District. The City of Fort Myers City Council Resolution specifically found that all six (6) of the statutory factors for evaluating the contraction of community development districts found in Section 190.005(1)(e), Florida Statutes, had been met by the Petitioner in this matter. As permitted by Sections 190.046 and 190.005(1)(c), Florida Statutes, the Board of County Commissioners of Lee County held a public hearing on June 25, 2002, to consider the contraction of the Gateway Services District. At the conclusion of the public hearing on June 25, 2002, the Board of County Commissioners of Lee County adopted Resolution No.02-06-43, expressing support for the Commission to promulgate a rule contracting the Gateway Services District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 190 and 120, Florida Statutes, and Chapter 42-1, Florida Administrative Code, contract the Gateway Services District as requested by the Petitioner by formal adoption of the proposed Rule Amendment attached to this Report as Exhibit C. DONE AND ORDERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 92106847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002. COPIES FURNISHED TO: Erin McCormick Larrinaga. Esquire Fowler, White, Boggs, Banker, P.A. 501 East Kennedy Boulevard Suite 1700 Tampa, Florida 33602 Gregory Munson, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399 Charles Canady, General Counsel Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399 Exhibit A Petitioner’s Witnesses at Public Hearing John Gnagey The Worthington Group 14291 Metro Parkway, Building 1300 Fort Myers, Florida 33912 James P. Ward Severn Trent Environmental Services, Inc. 210 N. University Drive, Suite 702 Coral Gables, Florida 33071 Andrew D. Tilton Johnson Engineering, Inc. 2158 Johnson Street Fort Myers, Florida 33901 Carey Garland Fishkind & Associates, Inc. 11869 High Tech Avenue Orlando, Florida 32817 Exhibit B List of Petitioner’s Exhibits Exhibit Description Exhibit 1: Memorandum from Greg Munson, Staff Attorney for the Florida Land and Water Adjudicatory Commission to Barbara Leighty, Clerk for the Florida Land and Water Adjudicatory Commission, dated March 12, 2002 Exhibit 2: Sketch depicting Gateway Services District Boundaries (Parcels marked “A” constitute the Contraction Parcels which Petition seeks to have contracted from the Gateway Services District) Exhibit 3: Consent and Joinder to Petition to Contract Gateway Services District, executed by Pulte Home Corporation on July 16, 2002 Exhibit 4: News-Press Affidavit of Publication, dated July 9, 2002 Exhibit 5: Certified Copy of Resolution No. 2002-11, approved by the City Council of the City of Fort Myers on March 4, 2002 Exhibit 6: Certified Copy of Resolution No. 02-06-43, approved by the Board of County Commissioners of Lee County, Florida on June 25, 2002 Exhibit 7: Letter from the Florida Department of Community Affairs to Ms. Donna Arduin, Secretary, Florida Land and Water Adjudicatory Commission, dated April 16, 2002 Exhibit 8: Notice of Receipt of Petition, published by the Florida Land and Water Adjudicatory Commission in the Florida Administrative Weekly on May 17, 2002 Composite Exhibit 9: Petition to Contract Gateway Services District, dated January, 2002 (includes City of Ft. Myers Comprehensive Plan and Lee County Comprehensive Plan); Addendum to the Petition to Contract Gateway Services District, dated March 25, 2002; Second Addendum to the Petition to Contract Gateway Services District, dated July 16, 2002; and Third Addendum to the Petition to Contract Gateway Services District, dated July 25, 2002. Exhibit C THE FULL TEXT OF THE PROPOSED RULE AMENDMENT IS: 42F-1.002 Boundary. The boundaries of the district are as follows: A tract or parcel of land lying Section 35, Township 44 South, Range 25 East and in Sections 1, 2, 3, 4, 10, 11 and 12, Township 45 South, Range 25 East; Section 31, Township 44 South, Range 26 East and in Sections 5, 6, 7, 8, 17, 18 and 19, Township 45 South, Range 26 East, Lee County, Florida, more particularly described as follows: Beginning at the southwest corner of said Section 35 run N 00__47' 42" W along the west line of the southwest quarter (SW-3) of said Section for 2643.18 feet to the quarter corner on the west line of said section; thence run N 00_ 43' 47" W along the west line of the northwest quarter (NW-3) of said Section for 1361.42 feet; thence run N 35__45' 29" E for 947.82 feet; thence run N 56__15' 44" E for 690.61 feet to the south line of the Colonial Boulevard right-of-way (State Road 884) (250 feet wide); thence run S 89__38' 27" E along said south line for 2763.96 feet to an intersection with the west line of the northeast quarter (NE-1/4) of the northeast quarter (NE-1/4) of said Section; thence run S 02__16' 01" E along said west line for 1,168.38 feet to the southwest corner of said fraction; thence run N 89_ 54' 24" E along the south line of said fraction for 1324.86 feet to the southeast corner of said fraction; thence run S 03__20' 25" E for 1284.37 feet to the quarter corner on the east line of said Section; thence run S 00__01' 59" E along said east line for 2635.65 feet to the northwest corner of said Section 1; thence run N 89__28' 42" E along the north line of the northwest quarter (NW-1/4) of said Section 1 for 2,642.98 feet to the quarter corner on said north line; thence run S 89__57' 06" E along the north line of the northeast quarter (NE-1/4) of said Section 1 for 2523.38 feet to the northeast corner of said Section; thence run N 00__57' 01" W along the west line of said Section 31 for 2644.12 feet to the quarter corner on said west line; thence run N 00__35' 02" W along said west line of said Section 31 for 1705.47 feet to an intersection with the southwesterly line of Immokalee Road (State Road 82) (200 feet wide); thence run S 46__07' 29" E along said southwesterly line for 6215.51 feet to an intersection with the south line of said Section 31; thence continue S 46__07' 29" E along said southwesterly line for 1227.27 feet to an intersection with a line common to said Sections 5 and 6; thence continue S 46__07' 29" E along said southwesterly line for 1535.36 feet to a point of curvature; thence run Southeasterly along said southwesterly line along the arc of a curve to the left of radius 5824.88 feet (delta 18_ 13' 21") (chord bearing S 55__14' 10" E) (chord 1844.76 feet) for 1852.55 feet to a point of tangency; thence continue along said southwesterly line S 64__20' 50" E for 22.21 feet to an intersection with the east line of the west half (W-1/2) of said Section 5; thence run S 00__06' 33" E along said east line for 2271.81 feet to the quarter corner common to said Sections 5 and 8; thence run S 01__02' 00" E along the east line of the west half (W-1/2) of said Section 8 for 3,028.35 feet; thence run N 89__33' 57" E for 605.03 feet; thence run S 01__02' 00" E for 1800.10 feet; thence run S 89__33' 57" W for 605.03 feet; thence run S 01__02' 00" E for 500.03 feet to the quarter corner common to said Sections 8 and 17; thence run S 01__00' 12" E along the east line of the northwest quarter (NW-1/4) of said Section 17 for 926.76 feet to an intersection with the northeasterly line of a Florida Power and Light Company substation site as described in deed recorded in Official Record Book 1606 at Page 1286 of the Lee County Records; thence run N 37__57' 04" W along said northeasterly line for 361.70 feet; thence run S 52__02' 56" W along the northwesterly line of said Site for 361.70 feet; thence run S 37__57' 04" E along the southwesterly line of said Site for 741.48 feet to an intersection with the northwesterly line of Daniels Road Extension (200 feet wide) as described in deed recorded at Official Record Book 1644 at Page 1739 of the Lee County Records; thence run N 68__38' 13" E along said northwesterly line for 64.84 feet to an intersection with said easterly line of said northwest quarter (NW-1/4) of said Section 17; thence run S 01__00' 12" E along said east line for 1238.52 feet to the southeast corner of said fraction; thence run S 89__30' 38" W along the south line of said fraction and the north line of the Southwest Florida Regional Airport for 2110.83 feet to an intersection with the southeasterly line of said Daniels Road Extension; thence run S 54__00' 05" W through said Sections 17, 18 and 19 along the southeasterly line of a road right-of-way (200 feet wide) for 7032.17 feet to an intersection with the west line of said Section 19; thence run N 00__55' 36" W along said west line for 1,477.45 feet to the northwest corner of said Section; thence run N 00_ 54' 13" W along the west line of the southwest quarter (SW-1/4) of said Section 18 for 2,643.95 feet to the quarter corner on said west line; thence run N 00_ 39' 39" W along the west line of the northwest quarter (NW- 1/4) of said Section 19 for 2,674.35 feet to the northwest corner of said Section; thence run N 00_ 57' 26" W along the west line of the southwest quarter (SW-1/4) of said Section 7 for 2,645.34 feet to the quarter corner common to said Sections 7 and 12; thence run S 89_ 55' 12" W along the south line of the northeast quarter (NE-1/4) of said Section 12 for 2,524.67 feet to the west line of the east 2,524.14 feet of said northeast quarter (NE-1/4); thence run N 01_ 05' 33" W along said west line for 2,646.07 feet to the south line of said Section 1; thence run S 89_ 56' 14" W along said south line for 2,663.19 feet to the southwest corner of said Section, passing through the quarter corner on the south line of said Section at 69.26 feet; thence run S 89__03' 50" W along the south line of said Section 2 for 2645.12 feet to the quarter corner on said south line; thence run S 00__08' 50" E line of the northwest quarter (NW-1/4) of said Section 11 for 2670.22 feet to the center of said Section; thence run S 88__33' 56" W along the south line of said northwest quarter (NW-1/4) for 2745.77 feet to the quarter corner on the west line of said Section 11; thence run S 89__29' 50" W along the south line of the northeast quarter (NE-1/4) of said Section 10 for 2546.16 feet to the center of said Section; thence run N 00__06' 58" W along the west line of said northeast quarter (NE-1/4) for 2668.79 feet to the quarter corner on the north line of said Section; thence run S 88__57' 32" W along the south line of said Section 3 for 2649.25 feet to the southwest corner of said Section; thence run S 88_ 54' 32" W along the south line of said Section 4 for 2059.99 feet to an intersection with the southeasterly line of the Six Mile Cypress Acquisition Area; thence run Northeasterly along said southeasterly line the following courses and distances: N 31__38' 21" E for 261.19 feet; N 01__23' 47" W for 277.78; N 37__53' 18" E for 246.16 feet; N 18_ 15' 00" E for 91.84 feet; N 56__35' 37" E for 169.92 feet; N 85__38' 45" E for 379.20 feet; N 70__16' 34" E for 105.12 feet; N 06__16' 12" E for 108.95 feet; N 89__11' 29" E for 322.80 feet; N 71_ 11' 39" E for 95.05 feet; N 55__29' 43" E for 156.24 feet; S 86__54' 42" E for 285.36 feet; N 55_ 11' 00" E for 58.82 feet; N 73__00' 08" E for 140.00 feet; N 54__05' 49" E for 115.77 feet; N 10_ 34' 05" E for 104.79 feet; N 24__05' 57" E for 100.09 feet; N 67__22' 01" E for 230.59 feet; S 85__03' 28" E for 211.24 feet; N 05__10' 02" E for 54.09 feet; N 27__24' 58" E for 106.63 feet; N 10__08' 05" E for 139.90 feet; N 44__41' 11" E for 147.83 feet; N 62__35' 02" W for 105.53 feet; N 23__59' 48" E for 476.74 feet; N 15__42' 08" E for 368.41 feet; N 20__55' 23" E for 222.23 feet; N 45__09' 19" E for 183.23 feet; N 31__07' 36" E for 305.01 feet; N 32__55' 08" E for 155.78 feet; N 17__03' 28" E for 110.45 feet; N 26__26' 47" E for 300.81 feet; N 18__42' 17" E for 150.86 feet; N 04__51' 19" W for 340.19 feet; N 12__09' 34" E for 251.79 feet; N 27__12' 34" E for 210.15 feet; N 14__53' 31" E for 323.53 feet and N 35__18' 42" E for 275.49 feet to an intersection with the north line of said Section 3; thence run N 88__37' 17" E along said north line for 530.84 feet to an intersection with the westerly line of State Road No. 93 (Interstate 75) (324 feet wide); thence run S 14_ 49' 52" E along said westerly line for 677.99 feet to an intersection with the east line of the northwest quarter (NW-1/4) of said Section 3; thence run S 00__49' 04" E along said east line for 1299.77 feet to the northwest corner of the west half (W-1/2) of the southwest quarter (SW-1/4) of the northeast quarter (NE-1/4) of said section; thence run N 88__12' 52" E along the north line of said fraction for 323.06 feet to an intersection with said westerly line of State Road No. 93; thence run S 14__49' 52" E along said westerly line for 2.67 feet to an intersection with the east line of said fraction ; thence run S 00__37' 05" E along said east line for 650.21 feet to the southeast corner of said fraction; thence run N 88__09' 46" E along the north line of the southeast quarter (SE-1/4) of said Section 3 for 2250.18 feet to the quarter corner common to said Sections 2 and 3; thence run N 00__47' 03" E along the west line of the northwest quarter (NW-1/4) of said Section 2 for 2605.26 feet to the Point of Beginning. Less and except all that part of the right-of-way for State Road No. 93 (Interstate 75) lying within the southeast quarter (SE-1/4) of Section 3 and within the northeast quarter (NE- 1/4) of Section 10, Township 45 South, Range 25 East, Lee County, Florida, as more particularly described in the petition for this rule. Containing 5,474 5324 acres, more or less. PARCEL "A" A TRACT OR PARCEL OF LAND LYING IN SECTION 35 TOWNSHIP 44 SOUTH, RANGE 25 EAST, SECTIONS 1, 2, 11 AND 12, TOWNSHIP 45 SOUTH, RANGE 25 EAST; SECTION 31, TOWNSHIP 44 SOUTH, RANGE 26 EAST AND IN SECTIONS 5, 6, 7, 8, 17, 18 AND 19, TOWNSHIP 45 SOUTH, RANGE 26 EAST, LEE COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID SECTION 35 RUN N 00?47'42" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION FOR 2643.18 FEET TO THE QUARTER CORNER ON THE WEST LINE OF SAID SECTION; THENCE RUN N 00?43'47" W ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION FOR 1361.42 FEET; THENCE RUN N 35?45'29" E FOR 947.82 FEET; THENCE RUN N 56?15'44" E FOR 690.61 FEET TO THE SOUTH LINE OF THE COLONIAL BOULEVARD RIGHT-OF-WAY (STATE ROAD 884) (250 FEET WIDE); THENCE RUN S 89?38'27" E ALONG SAID SOUTH LINE FOR 539.91 FEET TO THE POINT OF BEGINNING; THENCE CONTINUE S 89?38'27" E ALONG SAID SOUTH LINE FOR 2224.05 FEET TO AN INTERSECTION WITH THE WEST LINE OF THE NORTHEAST QUARTER (NE 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION; THENCE RUN S 02?16'01" E ALONG SAID WEST LINE FOR 1168.38 FEET TO THE SOUTHWEST CORNER OF SAID FRACTION; THENCE RUN N 89?54'24" E ALONG THE SOUTH LINE OF SAID SECTION FOR 1324.86 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN S 03?20'25" E FOR 1284.37 FEET TO THE QUARTER CORNER ON THE EAST LINE OF SAID SECTION; THENCE RUN S 00?01'59" E ALONG SAID EAST LINE FOR 2635.65 FEET TO THE NORTHWEST CORNER OF SAID SECTION 1; THENCE RUN N 89?28'42" E ALONG THE NORTH LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 1 FOR 2642.98 FEET TO THE QUARTER CORNER ON SAID NORTH LINE; THENCE RUN S 89?57'06" E ALONG THE NORTH LINE OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION 1 FOR 2523.38 FEET TO THE NORTHEAST CORNER OF SAID SECTION; THENCE RUN N 00?57'01" W ALONG THE WEST LINE OF SAID SECTION 31 FOR 2644.12 FEET TO THE QUARTER CORNER ON SAID WEST LINE; THENCE RUN N 00?35'02" W ALONG SAID WEST LINE OF SAID SECTION 31 FOR 1705.47 FEET TO AN INTERSECTION WITH THE SOUTHWESTERLY LINE OF IMMOKALEE ROAD (STATE ROAD 82) (200 FEET WIDE); THENCE RUN S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 6215.51 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID SECTION 31; THENCE CONTINUE S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 1227.27 FEET TO AN INTERSECTION WITH A LINE COMMON TO SAID SECTIONS 5 AND 6; THENCE CONTINUE S 46?07'29" E ALONG SAID SOUTHWESTERLY LINE FOR 1535.36 FEET TO A POINT OF CURVATURE; THENCE SOUTHEASTERLY ALONG SAID SOUTHWESTERLY LINE ALONG THE ARC OF A CURVE TO THE LEFT OF RADIUS 5824.88 FEET (DELTA 18?13'21") (CHORD BEARING S 55?14'10" E) (CHORD 1844.76 FEET) FOR 1852.55 FEET TO A POINT OF TANGENCY; THENCE CONTINUE ALONG SAID SOUTHWESTERLY LINE S 64?20'50" E FOR 22.21 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE WEST HALF (W 2) OF SAID SECTION 5; THENCE RUN S 00?06'33" E ALONG SAID EAST LINE FOR 2271.81 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 5 AND 8; THENCE RUN S 01?02'00" E ALONG THE EAST LINE OF THE WEST HALF (W 2) OF SAID SECTION 8 FOR 3028.35 FEET; THENCE RUN N 89?33'57" E FOR 605.03 FEET; THENCE RUN S 01?02'02" E FOR 1800.10 FEET; THENCE S 89?33'57" W FOR 605.03 FEET; THENCE RUN S 01?02'00" E FOR 500.03 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 8 AND 17; THENCE RUN S 01?00'12" E ALONG THE EAST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 17 FOR 926.76 FEET TO AN INTERSECTION WITH THE NORTHEASTERLY LINE OF A FLORIDA POWER & LIGHT COMPANY SUBSTATION SITE AS DESCRIBED IN DEED RECORDED IN OFFICIAL RECORD BOOK 1606 AT PAGE 1286, LEE COUNTY RECORDS; THENCE RUN N 37?57'04" W ALONG SAID NORTHEASTERLY LINE FOR 361.70 FEET; THENCE RUN S 52?02'56" W ALONG THE NORTHWESTERLY LINE OF SAID SITE FOR 361.70 FEET; THENCE RUN S 37?57'04" E ALONG THE SOUTHWESTERLY LINE OF SAID SITE FOR 741.48 FEET TO AN INTERSECTION WITH THE NORTHWESTERLY LINE OF DANIELS ROAD EXTENSION (200 FEET WIDE) AS DESCRIBED IN DEED RECORDED IN OFFICIAL RECORD BOOK 1644 AT PAGE 1739, LEE COUNTY RECORDS; THENCE RUN N 68?38'13" E ALONG SAID NORTHWESTERLY LINE FOR 64.84 FEET TO AN INTERSECTION WITH SAID EASTERLY LINE OF SAID NORTHWEST QUARTER (NW 3) OF SAID SECTION 17; THENCE RUN S 01?00'12" E ALONG SAID EAST LINE FOR 1238.52 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN S 89?30'38" W ALONG THE SOUTH LINE OF SAID FRACTION AND A NORTH LINE OF THE SOUTHWEST FLORIDA REGIONAL AIRPORT FOR 2110.83 FEET TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF SAID DANIELS ROAD EXTENSION; THENCE RUN S 54?00'05" W THROUGH SAID SECTIONS 17, 18, AND 19 ALONG THE SOUTHEASTERLY LINE OF A ROAD RIGHT-OF-WAY (200 FEET WIDE) FOR 7032.17 FEET TO AN INTERSECTION WITH THE WEST LINE OF SAID SECTION 19; THENCE RUN N 00?55'36" W ALONG SAID WEST LINE FOR 1477.45 FEET TO THE NORTHWEST CORNER OF SAID SECTION; THENCE RUN N 00?54'13" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION 18 FOR 2643.95 FEET TO THE QUARTER CORNER OF SAID WEST LINE; THENCE RUN N 00?39'39" W ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 18 FOR 2647.35 FEET TO THE NORTHWEST CORNER OF SAID SECTION; THENCE RUN N 00?57'26" W ALONG THE WEST LINE OF THE SOUTHWEST QUARTER (SW 3) OF SAID SECTION 7 FOR 2645.34 FEET TO THE QUARTER CORNER COMMON TO SAID SECTIONS 7 AND 12; THENCE RUN S 89?55'12" W ALONG THE SOUTH LINE OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION 12 FOR 2524.67 FEET TO THE WEST LINE OF THE EAST 2524.14 FEET OF SAID NORTHEAST QUARTER (NE 3); THENCE RUN N 01?05'33" W ALONG SAID WEST LINE FOR 2646.07 FEET TO THE SOUTH LINE OF SAID SECTION 1; THENCE RUN S 89?56'14" W ALONG SAID SOUTH LINE FOR 2663.19 FEET TO THE SOUTHWEST CORNER OF SAID SECTION, PASSING THROUGH THE QUARTER CORNER ON THE SOUTH LINE OF SAID SECTION AT 69.26 FEET; THENCE RUN S 89?03'50" W ALONG THE SOUTH LINE OF SAID SECTION 2 FOR 3096.18 FEET TO AN INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY OF PROPOSED TREELINE BOULEVARD; THENCE ALONG SAID EAST RIGHT- OF-WAY LINE THE FOLLOWING BEARING AND DISTANCES: THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2625.00 FEET (DELTA 29?13'02") (CHORD BEARING S 15?09'16" W) (CHORD 1324.12 FEET) FOR 1338.58 FEET TO A POINT OF TANGENCY; THENCE RUN S 29?45'46" W FOR 618.63 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 1487.50 FEET (DELTA 28?50'26") (CHORD BEARING S 15?20'33" W) (CHORD 740.87 FEET) FOR 748.75 FEET TO A POINT OF TANGENCY; THENCE RUN S 00?55'22" W FOR 166.10 FEET TO A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF SECTION 11; THENCE RUN S 88?33'56" W ALONG SAID LINE FOR 125.11 FEET TO AN INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY OF PROPOSED TREELINE BOULEVARD; THENCE ALONG SAID WEST RIGHT-OF-WAY LINE THE FOLLOWING BEARING AND DISTANCES: THENCE RUN N 00?55'22" E FOR 171.23 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1612.50 FEET (DELTA 28?50'26") (CHORD BEARING N 15?20'33" E) (CHORD 803.13 FEET) FOR 811.67 FEET TO A POINT OF TANGENCY; THENCE N 29145"46' E FOR 618.63 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 2500.00 FEET (DELTA 33?36'51") (CHORD BEARING N 12?57'22" W) (CHORD 1445.75 FEET) FOR 1466.69 FEET TO A POINT OF TANGENCY; THENCE N 03?51'03" W FOR 959.31 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2800.06 FEET (DELTA 10?24'15") (CHORD BEARING N 01?21'04" E) (CHORD 507.76 FEET) FOR 508.45 FEET TO A POINT OF TANGENCY; THENCE N 06?33'12" E FOR 1166.54 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 1000.00 FEET (DELTA 43?02'49") (CHORD BEARING N 14?58'12" W) (CHORD 733.76 FEET) FOR 751.31 FEET TO A POINT OF TANGENCY; THENCE N 36?29'36" W FOR 266.36 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 2000.00 FEET (DELTA 37?40'00") (CHORD BEARING N 17?39'36" W) (CHORD 1291.27 FEET) FOR 1314.81 FEET TO A POINT OF TANGENCY; THENCE N 01?10'24" E FOR 245.33 FEET; THENCE S 89?25'36" W LEAVING SAID WEST LINE FOR 114.67 FEET TO A POINT ON THE EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) AS DESCRIBED IN OFFICIAL RECORD BOOK 1529 BEGINNING AT PAGE 412 OF THE PUBLIC RECORDS OF LEE COUNTY; THENCE N 00?02'17" W FOR 68.31 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SECTION 34, TOWNSHIP 44 SOUTH, RANGE 25 EAST; THENCE N 01?00'06" W ALONG SAID EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) FOR 2642.68 FEET; THENCE N 00?58'02" W ALONG SAID EAST LINE OF TREELINE BOULEVARD (TO BE RE-ALIGNED) FOR 1048.01 FEET TO A POINT ON A NON-TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 1050.00 FEET AND TO WHICH POINT A RADIAL LINE BEARS S 47?49' 01" E; SAID POINT ALSO BEING ON THE EAST LINE OF A ROAD RIGHT-OF-WAY AS DESCRIBED IN OFFICIAL RECORD BOOK 2581 BEGINNING AT PAGE 4060 OF THE LEE COUNTY RECORDS; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1050.00 FEET (DELTA 41?49'26") (CHORD BEARING N 21?16'16" E) (CHORD 749.56 FEET) FOR 766.46 FEET TO A POINT OF TANGENCY; THENCE N 00?21'33" E ALONG SAID EAST LINE FOR 721.50 FEET; THENCE N 45?21'33" E FOR 42.68 FEET TO THE POINT OF BEGINNING. CONTAINING 4,390 ACRES, MORE OR LESS. SUBJECT TO EASEMENTS, RESTRICTIONS, RESERVATIONS AND RIGHTS- OF-WAY (RECORDED AND UNRECORDED, WRITTEN AND UNWRITTEN) BEARINGS ARE BASED ON THE NORTH LINE OF SECTION 10, TOWNSHIP 45 SOUTH, RANGE 25 EAST AS BEARING S88?57'32"W. TOGETHER WITH: DESCRIPTION SECTION 3, TOWNSHIP 45 SOUTH, RANGE 25 EAST LEE COUNTY, FLORIDA PARCEL "B" A TRACT OR PARCEL OF LAND LYING IN SECTION 3, TOWNSHIP 45 SOUTH, RANGE 25 EAST, LEE COUNTY, FLORIDA WHICH TRACT OR PARCEL IS DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 3 RUN N 88?37'17" E ALONG THE NORTH LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3 FOR 2477.68 FEET TO AN INTERSECTION WITH THE WESTERLY RIGHT-OF-WAY LINE OF INTERSTATE 75 (I-75) (STATE ROAD NO. 93) (324 FEET WIDE) AND THE POINT OF BEGINNING; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY RIGHT- OF-WAY LINE FOR 677.94 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3; THENCE RUN S 00?49'05" E ALONG SAID EAST LINE FOR 1299.77 FEET TO THE NORTHWEST CORNER OF THE WEST HALF (W 2) OF THE SOUTHWEST QUARTER (SW 3) OF THE NORTHEAST QUARTER (NE 3) OF SAID SECTION; THENCE RUN N 88?12'52" E ALONG THE NORTH LINE OF SAID FRACTION FOR 323.06 FEET TO AN INTERSECTION WITH SAID WESTERLY LINE OF STATE ROAD NO. 93; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY LINE FOR 2.67 FEET TO AN INTERSECTION WITH THE EAST LINE OF SAID FRACTION; THENCE RUN S 00?37'05" E ALONG SAID EAST LINE FOR 650.21 FEET TO THE SOUTHEAST CORNER OF SAID FRACTION; THENCE RUN N 88?09'46" E ALONG THE NORTH LINE OF THE SOUTHEAST ONE-QUARTER (SE 3) OF SAID SECTION 3 FOR 163.88 FEET TO AN INTERSECTION WITH SAID WESTERLY RIGHT-OF-WAY LINE; THENCE RUN S 14?49'52" E ALONG SAID WESTERLY RIGHT-OF-WAY LINE FOR 1474.99 FEET TO A POINT OF CURVATURE; THENCE RUN SOUTHERLY ALONG AN ARC OF A CURVE TO THE RIGHT OF RADIUS 22800.31 FEET (CHORD BEARING S 13?33'28" E) (CHORD 1013.23 FEET) (DELTA 02?32'47") FOR 1013.31 FEET TO A POINT ON A NON-TANGENT LINE; THENCE RUN N 82?23'52" W FOR 122.32 FEET TO A POINT ON A NON- TANGENT CURVE; THENCE RUN NORTHERLY ALONG AN ARC OF A CURVE TO THE LEFT OF RADIUS 22685.31 FEET (CHORD BEARING N 13?36'38" W) (CHORD 966.55 FEET) (DELTA 02?26'29") FOR 966.63 FEET TO A POINT OF TANGENCY; THENCE RUN N 14?49'52" W FOR 542. 01 FEET TO A POINT OF CURVATURE; THENCE RUN NORTHWESTERLY ALONG AN ARC OF A CURVE TO THE LEFT OF RADIUS 250.00 FEET (CHORD BEARING N 54?04'24" W) (CHORD 316.30 FEET) (DELTA 78?29'05") FOR 342.45 FEET TO A POINT OF TANGENCY; THENCE RUN S 86?41'03" W FOR 1133.06 FEET; THENCE RUN N 02?10'37" W FOR 387.06 FEET; THENCE RUN N 87?40'37" W FOR 838.00 FEET; THENCE RUN N 01?19'23" E FOR 243.00 FEET; THENCE RUN S 88?09'46" W FOR 190.18 FEET TO AN INTERSECTION WITH THE SOUTHEASTERLY LINE OF SIX MILE CYPRESS PRESERVE, AS RECORDED IN OFFICIAL RECORD BOOK 1741 AT PAGE 1241 OF THE PUBLIC RECORDS OF LEE COUNTY, FLORIDA; THENCE RUN THE FOLLOWING FIFTEEN (13) COURSES ALONG SAID SOUTHEASTERLY LINE; N 15?42'08" E FOR 184.34 FEET; N 20?55'23" E FOR 222.23 FEET; N 45?09'19" E FOR 183.23 FEET; N 31?07'36" E FOR 305.01 FEET; N 32?55'08" E FOR 155.78 FEET; N 17?03'28" E FOR 110.45 FEET; N 26?26'47" E FOR 300.81 FEET; N 18?42'17" E FOR 150.86 FEET; N 04?51'19" W FOR 340.19 FEET; N 12?09'34" E FOR 251.79 FEET; N 27?12'34" E FOR 210.15 FEET; N 14?53'31" E FOR 323.53 FEET; N 35?18'42" E FOR 275.49 FEET TO AN INTERSECTION WITH THE NORTH LINE OF THE NORTHWEST ONE-QUARTER (NW 3) OF SAID SECTION 3; THENCE RUN N 88?37'17" E ALONG SAID NORTH LINE FOR 530.87 FEET TO THE POINT OF BEGINNING. CONTAINING 111.14 ACRES, MORE OR LESS. TOTAL AREA FOR BOTH PARCELS 4,501.14 ACRES, MORE OR LESS. BEARINGS HEREINABOVE MENTIONED ARE BASED ON THE NORTH LINE OF THE NORTHWEST QUARTER (NW 3) OF SAID SECTION 3 TO BEAR N 88?37'17" W WHICH BEARING IS DERIVED FROM PLANE COORDINATE FOR THE FLORIDA WEST ZONE (1979 ADJUSTMENT). Specific Authority 120.53(1), 190.005, FS. Law Implemented 190.004, 190.005, FS. History - new 5-22-86, Amended .
The Issue The issue in this case is whether the application filed by the Florida Department of Environmental Protection (DEP) for abandonment of a segment of Mission Road, from the Ocala Drive intersection to a point east of Yonview Drive, should be granted; and, if so, what conditions should be placed on the abandonment.
Findings Of Fact Proposed Abandonment and Vicinity The eastern terminus of Mission Road is at Ocala Road. At one time, Mission Road intersected Ocala Road and extended farther east along the alignment of Tennessee Street. However, when Tennessee Street was extended farther west, the intersection of Tennessee Street and Ocala Road was moved slightly south of the juncture of Ocala Road and Mission Road. Now at the junction of those roads, Mission Road is designed to have only a right turn in from Ocala Road southbound, and a right turn out from Mission Road onto Ocala Road, headed south. Mission San Luis (Mission) is bisected by Mission Road near its eastern terminus at Ocala Road. While the Mission is accessible from Mission Road, its main entrance is on Tennessee Street just west of Ocala Road. The Mission has administrative offices and an archeological laboratory on the south side of Mission Road, while the re-created Mission and Apalachee Village, along with most of the archeological remains, and visitor parking, are on the north side of Mission Road. Yonview Drive joins Mission Road from the south. The juncture of those two roads marks the western terminus of the part of Mission Road that is the subject of the application for abandonment; Ocala Road marks the eastern terminus of the proposed abandonment. All of the land on either side of this part of Mission Road is owned by the State and is part of the Mission. Proceeding west from Yonview, the Mission is on the northeast side of Mission Road, which provides access to the current parking lot for the Mission and the current visitor center, which is an adaptive use of a house built in 1938. Along that stretch of Mission Road, The Timbers condominium development is on the southwest side of Mission Road. Just west of the Mission property, San Luis Road intersects Mission Road. To the north of Mission Road, San Luis is a public road that proceeds north, past Leon County's San Luis Park (which is on the east side of the road), and residential neighborhoods to the west side, to where San Luis Road intersects Tharpe Street. To the south of Mission Road, aligned with San Luis Road, is an entrance to The Timbers. Sometimes referred to as an extension of San Luis Road, the roadway within The Timbers actually is private and serves as access to The Timbers condominium units; it continues through The Timbers and continues between other properties to the development's other entrance on White Drive. As Mission Road proceeds west from San Luis Road, the rest of The Timbers is on its south side; on its north side, Solana Drive joins it from the residential neighborhood to the north. Solana Drive is a short street between San Luis Road and Mission Road. The northern terminus of Solana Drive is near the southern end of the County Park. Petitioners and Their Interests Petitioners are The Timbers Homeowners’ Association, Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually. The individual Petitioners each own one or more units within The Timbers. Ms. Baldwin has resided there for nearly ten years. The HOA is charged with representing the interests of the owners and residents of The Timbers. It owns and has responsibility for the repair, maintenance, and improvement of the common areas within the development. Mr. Moran and Ms. Baldwin are officers of the HOA. The Timbers is a 223-unit condominium community that fronts, along its entire length, the south side of Mission Road between White Drive and Yonview Drive. A portion of this frontage is located directly across Mission Road from what is now Mission San Luis. The private road within The Timbers between Mission Road and White Drive is how The Timbers connects to the public road system. As it fronts Mission Road, The Timbers is a pleasant, wooded community of multiple condominium structures, each of which fronts on a side street connected to its private "San Luis Road." The Timbers is conveniently located for easy access to Florida State University, Florida A&M University, and other points to the south or east of The Timbers (including downtown Tallahassee). A significant number of residents of The Timbers use Mission Road by turning right onto Mission Road, which takes them to a right turn onto Ocala Road, with no stop sign, stop light, or significant intersection in between. From there, they can go straight south on Ocala Road or turn east or west on Tennessee Street. If the abandonment application is granted, that route would be eliminated, and there would be two remaining ways to leave The Timbers--via the White Drive exit, or by making two left turns, one onto Mission Road and the second, after a stop sign, onto White Drive. Meanwhile, drivers traveling east (toward town) on Mission Road from virtually all points west of The Timbers (and thus west of White Drive) on Mission Road, would take a right curve onto White Drive from Mission Road but they would do so with the right-of-way or, if signalized, a traffic light timed to give them a “longer green” preference. Those Timbers residents, owners, and visitors exiting at White Drive would have to negotiate their left turn without the right-of-way and against whatever increased traffic might be introduced onto White Drive if Mission Road were closed. From there, depending on the ultimate destination, traffic could either go straight on White Drive towards Pensacola Street or turn left onto Tennessee Street to reach the Tennessee Street/Ocala Road intersection. The intersection at White Drive and Tennessee Street is signalized but is not consistent with current design standards in that it has an offset center line. According to the planned unit development documents for The Timbers, the White Drive entrance was supposed to be the main entrance to the development. However, the Mission Road entrance has come to function more like the actual “main” and is more attractive aesthetically. Petitioners have spent significant effort and money in beautifying and otherwise maintaining its private extension of San Luis Road through curbing, landscaping, signage, etc. The part of the road that joins The Timbers to White Drive is not as well constructed and is not bounded by The Timbers but rather by other properties. It also is where the garbage dumpsters for the development are located. (On the other hand, the mailboxes for the development also are located off that part of the private road.) The closure of Mission Road probably will shift some internal Timbers traffic from the Mission Road entrance to the White Drive entrance. It also is possible that some external traffic coming south on San Luis Road might use the private extension of the road within The Timbers as a "short-cut" to White Drive. However, the road through the Timbers may not prove to be a desirable "short-cut" because it is a lower-quality road, has potholes, and is not designed for through-traffic but rather as a feeder road for the parking areas of the development. There are three stop signs; the turns are tight; and cars sometimes are parked along the side of the road. As a result, "friction" would slow through-traffic and discourage use of the road as a cut- through. The design of San Luis Road also makes it less likely that The Timbers would be used as a short-cut to White Drive. There is a hard right turn in the road signed for 15 miles per hour that people tend to avoid by turning onto right onto Solana Drive. Many residents walk within The Timbers, including to the mailboxes, to the tennis courts, and to the dumpsters, or to walk their dogs (perhaps in the green space created by an abandoned railroad right-of-way in the vicinity) on the western side of The Timbers. If traffic increases on that side of the private extension of San Luis Road, both the safety and the subjective experience of those pedestrians would be adversely affected to some extent. However, those effects are speculative. A resident-controlled gate system for the Mission Road entrance to prevent cut-through traffic likely would cost The Timbers HOA in the neighborhood of $15,000. Associated costs for telephone connections to each of the units, electrical service, and maintenance would likely range from $75 to $80 per residential unit per year. But such a gate is not desired by Petitioners as it would constitute a significant inconvenience for Petitioners and others who reside in or visit The Timbers. Should the Timbers elect to install sidewalks along its San Luis Road to accommodate increased or shifted traffic within The Timbers, the costs associated with that could reasonably exceed $110,000, including engineering, permitting, utilities, and remediation. The owners of units within The Timbers would ultimately bear the costs of any needed improvements or additional maintenance that would result from a closure of Mission Road. However, it is speculative whether such measures will be needed or actually undertaken. It is possible that the owners of units in The Timbers might suffer some diminution in property value as a result of the proposed abandonment. According to a property appraiser, Richard Boutin, there will be diminution in value of approximately one percent of the value of units, which ranges between $120,000 and $150,000, that would materialize over time, taking two-to-five years to occur. Whether such a diminution in value actually will occur is uncertain. As described above, due to the location of The Timbers, the proposed abandonment will adversely affect Petitioners more than it will adversely affect most of the rest of the general public. Most of the greater adverse effects on Petitioners will be similar in kind to the adverse effects on most of the general public. At least one of the greater effects on Petitioners also is different in kind -- namely, some drivers probably will use Petitioners' private road as a cut-through. See Findings 9-10, supra. Standards for Abandonment Applications A guiding principle for all City Commission action is to act in the public interest. The City Commission must act in the public interest, whether stated in a regulation or not, including when acting on an application for abandonment of right- of-way. City Commission Policy 410 has been used as a guide for reviewing abandonment applications. Policy 410 provides: The City of Tallahassee will not consider any application for right-of-way abandonment, if the subject right-of-way is currently being used by the City, or if the City has any plans to use the right-of-way at some point in the future. Abandonment of a right-of-way must be demonstrated to be in the best interest of the general public. Neither abandonment of a right-of-way solely for the purpose of placing it on the tax rolls in its current state, nor abandonment of a right-of-way solely to benefit an abutting property owner, is considered to be sufficient to meet the test of "in the public’s best interest". Abandonment of right-of-way automatically reverts only to abutting property owners with one-half of the right-of-way going to each owner by operation of law upon adoption of a City ordinance. Provide applicant with a Quit [sic] Deed for recording, if the right-of-way is abandoned. Unlike ordinances, policies can be waived. Notwithstanding paragraph 1 of the Policy, the evidence was clear that the City abandons right-of-way that is in use, either explicitly or implicitly waiving paragraph 1. Over 90 percent of the abandonment applications processed by the City have been for rights-of-way that are currently being used, including some that were being used heavily. The actual standards for determining whether to abandon a road have been found in the other parts of Policy 410, especially in paragraph 2. Although Policy 410 had a sunset date of March 25, 1997, it has not been replaced, and the Planning Department continued to use it as a guide for review of abandonment applications. On February 23, 2005, the City Commission reviewed proposals from the Planning Department for modifications to the City’s abandonment policies, procedures, and fee requirements. The proposed modifications included revised procedures, added definitions, and added the following specific review criteria: The approval of the application shall not create any safety or public health hazard, including any environmental health hazard; The approval of the application shall not result in the preclusion of right-of-way or fee simple access to any existing parcel/lot of record; The approval of the application shall not result in the preclusion of access to any publicly-maintained facility or infrastructure; The approval of the application shall not create any condition inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long Range Transportation Plan included therein; The approval of the application would not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain; The approval should not adversely affect service access required for any official public safety, utility service, waste collection service provider; the United States Postal Service; Leon County Schools (school buses); or TalTran. On February 23, 2005, the City Commission approved the modifications and approved the Planning Department's recommendation to repeal Policy 410 since the modification would be more definitive. The City Commission approved the Planning Department’s recommendations, and directed staff to draft an ordinance incorporating the proposed modifications to the abandonment policies, procedures, and fee requirements and to bring the ordinance back before the Commission for adoption. As of this date, due to staffing constraints, the Planning Department has not taken an ordinance back to the City Commission for review and action. Conditions of Abandonment The City's Planning Department has placed several conditions on the proposed abandonment to address issues raised by the reviewing departments during the processing of abandonment applications. Placing conditions on abandonment of right-of-way is authorized and common. A standard condition for abandonment is that easements be retained by the City for any utilities. It also is standard to require the maintenance of adequate emergency access for the fire and police departments. Also standard, a vehicular turn- around will have to be constructed at the new eastern terminus of Mission Road. To connect with other bicycle-pedestrian trails in the area and enhance these modes of transportation and the City's Bicycle-Pedestrian Master Plan, the Planning Department recommends that a bicycle/pedestrian easement around the perimeter of the Mission be dedicated to the public as a condition of the abandonment. Finally, the Planning Department recommends that the proposed abandonment be conditioned on payment by the State for signalization at the Mission Road and White Drive intersection if, within 12 months of the abandonment, traffic increases to a point where signalization there is warranted. In testimony, the Executive Director of the Mission, Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian easement for the City, and DEP did not oppose either the standard or recommended conditions of abandonment. Effects of New Mission Visitor Center on Pedestrian Safety The building that currently functions as a Visitor Center for the Mission is an adaptive use of a 1938 house. Limited restrooms are in a separate building next to the house. Currently, due to the lack of accommodations, frequent requests to hold major events, weddings, receptions, and special functions must be denied. Currently, Mission staff must cross Mission Road between their offices and the public northern section. Staff crossings are a cause for concern because of the limited sight- line distance around the curve in Mission Road to the west. They are warned regularly to use caution, but no other measures to protect staff have been implemented or requested to date. Currently, visitors to the Mission drive to the public parking area on the northern portion of the site. Visitors then remain on the north side of Mission Road until they return to their vehicles to leave. In 2006, the Florida legislature appropriated funds to build a new Visitor Center at the Mission. This Center will be in excess of 20,000 square feet and will include public classrooms, a place to show orientation films, exhibits, 20 public toilets, and a meeting room accommodating 250 people. The new Visitor Center will be a vast improvement over the current facility. The evidence was that the best location for the new Visitor Center is on the western portion of the Mission property south of Mission Road. The site was selected because it is relatively flat and because the relatively few archaeological remains there have been mitigated. The plans are to have people enter the Mission using the driveway entrance on Tennessee Street, park around the new Visitor Center, proceed through the Visitor Center for their orientation, and then walk to the main area of the park, where the re-created Fort, Mission, Apalachee Village, and rich archeological sites are located. If Mission Road is not abandoned, the visitors would be crossing just east and quite close to a sharp curve in the relatively narrow, canopy-like road, which has deep-cut banks. Petitioners suggest that the new Visitor Center could be put on the northern part of the site. Indeed, before the State acquired the land on the south side of Mission Road where it now intends to build the new Visitor Center, the State was planning to build it on the north side of the road. However, the evidence was that the recently acquired site on the south side of the road is better suited and would be a much greater benefit to the general public. In any event, the evidence was that the State is going forward with its plans for the new Visitor Center and already has proceeded with obtaining environmental and building permits for construction on the preferred site. A conservative count of on-site visitation at the Mission last year was 30,239. There are activities year-round, including costume interpretation, a living history program, special events, and camps, including every teacher planning day and break. Most of the Mission programming is geared towards children, and approximately ninety percent of the visitors are children. The State hopes and expects that visitors to the Mission will increase dramatically with construction of the new Visitor Center. The State continues to expect that a high percentage of these visitors will be children. The application for abandonment is based on the reasonable prospect of increased future use of the facility. The application for abandonment seeks to protect the expected increased number of visitors, including many groups of children, and staff from the danger of having to cross back and forth across Mission Road. Pedestrian safety in connection with the use of the planned Mission facilities is a clear benefit to the general public. The abandonment application also would enable the State to optimize the functioning of the Mission, which also benefits the general public. Negative Effects of Abandonment At the same time, granting the application for abandonment would cost the general public in other ways, which the Petitioners point out. The segment of Mission Road proposed to be abandoned has a "canopy-road-like feel" (although it is not officially designated as a canopy road). The public no longer would be able to experience driving on it. A traffic study done by Wilson Miller on behalf of the State confirmed that traffic on the segment of Mission Road in question is relatively light. Traffic count data from 2008 showed that the annual average daily traffic ("AADT") was 1,500 vehicles a day, including both directions. Approximately 57 percent of the 1,500 cars move in an easterly direction. By comparison, the AADT for other area roads in the vicinity is significantly higher: 9,000 vehicles for White Drive; 34,000 for Ocala Road; and 42,500 for Tennessee Street. Mission Road is classified as a minor collector road. The capacity of a minor collector is between 13,000 and 14,000 AADT. The AADT established by the Wilson Miller study is only about 10% of the road's capacity, which is very light for a minor collector road. If the application for abandonment is granted, traffic will shift to other roads. However, the Wilson Miller study was not an origin and destination study and was not sufficient to determine with any precision how the traffic would shift. For that reason, Petitioners' attempt to use the traffic study to identify and quantify the costs associated with such travel shifts was not convincing. Some increase in traffic on other area roads will occur, but it is speculative based on this record where the increases might occur, how large they will be, and whether they will result in the need for taxpayer-funded road and traffic construction. Petitioners contend that the proposed abandonment will shift some eastbound traffic on Mission Road to White Drive. If it does, White Drive is a major collector with recent improvements and excess capacity. Any additional traffic on White Drive would not be significant from a traffic planning standpoint. It might make the road network more efficient overall (even though certain trips may become less efficient). It is possible that the re-routing of traffic from the Mission Road and Ocala Road intersection may be significant enough to warrant a traffic signal at White Drive and Mission Road. For this reason, the City staff recommends, as a condition for abandonment, that the State pay for signalization at that intersection if the need arises within a 12-month period after the abandonment. Based on the evidence, it should not be anticipated that other road and traffic improvements will be necessary as a result of the abandonment, except perhaps reversal of the stop condition at Mission Road and San Luis Road and possibly a turn lane on Solana Drive at its Mission Road junction. Petitioners also contend that the value of the 1.34 acres of road right-of-way to be abandoned is a cost to the general public that should be considered. The appraised value of the 1.34 acres was $240,000, using an "across the fence" appraisal methodology and assuming high-density residential property "across the fence" even though the property on either side of the proposed abandonment would be park land, and the transfer of use from road to park would be from one public purpose to another public purpose. In any event, the City cannot legally "charge" for abandoning right-of-way, and the value of abandoned right-of-way is never a consideration in the City's review of an abandonment application. See Conclusion 77, infra. Petitioners also contend that the proposed abandonment will have the negative effect of hampering emergency response in the area. Any road closure could result in a longer emergency response time by a matter of minutes in a particular circumstance and, depending on the emergency, it is possible that a delay of mere minutes could be significant and even mean the difference between life and death. But the evidence was clear that, from any reasonable planning perspective, the proposed abandonment would not present significant difficulties to fire, hazardous material, or police responders, assuming that maintaining adequate emergency access into the Mission itself is made a condition of the abandonment. Geographic areas are assigned to Fire Department stations for primary response. The response routes of drivers are not assigned, but are instead discretionary on the part of the driver based on the time of day, traffic patterns, nature of the road, and possible school zones. The primary station is called as the First Due, with the secondary being Second Due, and so forth. Station 4, located at the corner of Pensacola Street and Appleyard Drive, is the First Due Station, or engine company, for the area of the proposed abandonment, including The Timbers. The typical route for Station 4 would be to travel from its location at Appleyard Drive and proceed to Tennessee Street, turn right and proceed east to White Drive, then turn left and proceed north to Mission Road. This route would not be affected by the proposed abandonment. The Second Due Station for this area is the Main Fire Station located at 327 North Adams Street. The probable emergency response route for a fire truck coming from this Station would be to travel west on Tennessee Street, go through the Ocala Road intersection with Tennessee Street, turn right and proceed north on White Drive, and turn right and proceed east on Mission Road. The alterative route of proceeding north on Ocala Road at the Tennessee Street intersection and turning left onto Mission Road would be extremely difficult to navigate for a large fire truck, particularly in light of traffic, and typically would not be the preferred route. The typical route from the Second Due station is not affected by the proposed abandonment. The Third Due station for this area is Station 8, which is located on Hartsfield Road. This Station is situated to the west of the Timbers and the Mission. A typical route from this Station to the Timbers would be to drive east on Hartsfield Drive and take one of several southerly connections to Mission Road, and then drive east on Mission Road to access The Timbers or the Mission. Another consideration for Fire Department emergency access is the specialized functions of certain stations in two areas--Urban Search and Rescue, and the Hazardous Material Response. The Urban Search and Rescue team provides specialized services including searching through collapsed buildings and piles of debris. The primary station response for Urban Search and Rescue is Station 4, and its access is unaffected by the abandonment. The primary Hazardous Material Response team is Station 2, located on Sharer Road. There is a secondary specialized station for hazardous materials response, Station 3, which is located on South Monroe Street at Paul Russell Road. In addition, all of the stations have some ability to provide hazardous materials response. Currently, a possible route from Station 2 to the Timbers eventually would take Ocala Road to Mission Road. However, this route is only available for single engine fire trucks. Due to the nature of the equipment it uses, the hazardous materials team may instead proceed along Interstate 10 to Capital Circle and head back east to the area. During a response to an incident, this specialized team would be driving en route, meaning with traffic and not in emergency mode, and the First Due station would already have sent a truck to the site along a route unaffected by the proposed abandonment. As for the Police Department, the main type of call from The Timbers has been for public disturbances, which are frequently related to parties and generally not emergencies. In the three years of calls, only one call received could be considered an emergency response, which was for a young lady who had erratic breathing after passing out from drinking too much alcohol. In contrast to the Fire Department, police patrol cars have no fixed locations but rather are constantly on patrol. Dispatch for police prioritizes current needs and locations of vehicles. The Police Department has a number of methods it can use to access an area in case of an emergency. In addition to the standard method of reaching an area by car, potential options to reach an area include by foot, bike, and helicopter. Even deployment of an armored car/tank type vehicle would be possible if the situation warranted it. If the abandonment occurs, there will be three main routes to access the area, including San Luis Road, White Drive, and Mission Road from the west. With the two entrances to The Timbers, these routes provide at least five different ways to access The Timbers. Some locations in the City, such as cul-de- sacs, have only one access route. The various approaches to the area in question provide more than sufficient access. The proposed abandonment would result in the elimination of a less-than-ideal intersection at Mission Road and Ocala Road. Resulting from the extension of Tennessee Street to the west of Ocala Road, the intersection at Mission Road and Ocala Road does not meet current design standards because it is too close to Tennessee Street. It is not unusual for cars turning right from Mission Road onto Ocala Road to cross two or three lanes within a very short distance in order to turn left onto Tennessee Street. This maneuver is dangerous and illegal. Of six accidents at the intersection over four years, five involved oncoming traffic striking a vehicle turning onto Ocala Road from Mission Road. In a three-month period in 2006 alone, there were three such collisions. One reason there are not more similar accidents appears to be that the danger is so obvious that most drivers--both those attempting the maneuver and those driving south on Ocala Road--use caution. In addition, many of the local residents have become quite skilled at negotiating the intersection. Another illegal maneuver at this less-than-ideal intersection is sometimes used by cars heading north on Ocala Road and crossing Tennessee Street. Since it is not possible to make a legal turn left onto Mission Road, some turn left into a business parking lot on the northwest corner of Tennessee Street and Ocala Road, drive through the business parking lot, and then turn left onto Mission Road. Petitioners contend that the proposed abandonment will shift traffic from the Mission Road/Ocala Road intersection to the White Drive/Tennessee Street intersection, which also is inconsistent with design standards due the centerline offset, making the left turn onto Tennessee Street from White Drive potentially dangerous. However, whether and how much traffic would be shifted to that intersection was not proven. In addition, most of the traffic experts who testified were more concerned about the dangers inherent in the Mission Road/Ocala Road intersection and thought elimination of the Mission Road/Ocala Road intersection would make the Ocala Road/Tennessee Street intersection more efficient. Comprehensive Plan The evidence was that, with the conditions recommended by the City's Planning Department, the proposed abandonment does not create any condition that is inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long- Range Transportation Plan. Goal 2 of the Historic Preservation Element of the Comprehensive Plan is to “[e]nsure that all municipal and county actions encourage and promote the preservation of this community’s historic resources.” Closing the proposed portion of Mission Road will serve Goal 2 by supporting and satisfying Policy 2.1.3 (mitigate the impact of development on historic resources), Policy 2.1.5 (property listed in the Florida Master Site File), and Objective 2.4 (develop a land conservation program to protect historic resources). The proposed abandonment also is consistent with other parts of Goal 2, namely: Objective 2.5 (establish a program to protect significant archaeological resources); Policy 2.5.1 (mitigation of adverse impacts to significant sites); Policy 2.5.2 (archaeological sites to be filed with Florida Master Site File and Archaeological Sensitivity Zone Maps of Leon County); Objective 3.2 (provide for the interpretation of local government-owned historic resources in parks and other public lands); Policy 3.2.1 (support and encourage local projects involving walking, bicycling and driving tours through historic areas); and Policy 3.2.2 (include the existence of historic resources as a criterion in the acquisition of public parks). The recommended bicycle/pedestrian path easement condition is consistent with Goal 6 of the Conservation Element of the Comprehensive Plan, which encourages the City/County to "implement a county-wide greenways network . . . to provide for . . . educational and historical interpretive opportunities and increased opportunities for alternative modes of transportation." Goal 6 of the Conservation Element of the Plan and supporting Policies 6.1.1 through 6.1.4 were the origin of the Tallahassee-Leon County Greenways Master Plan. The intent was to link historic and natural resources throughout the community, linking them to residential, work, and business areas. The bicycle/pedestrian easement link San Luis City Park trails with an existing trail at the intersection of Tennessee and Ocala. The proposed abandonment is consistent with the Parks and Recreation Element of the Comprehensive Plan in that state facilities may be included to meet state-required levels of service. Parks are essential to a sustainable community. The Land Use Element of the Comprehensive Plan has the general goal of protecting natural and aesthetic environments and residential areas. One way to protect residential areas is not to route collector roadways through them. Everything adjoining the western boundary of the Mission is classified as Residential Preservation. Closing Mission Road will force traffic away from this area and protect 18 homes on San Luis Road from cut-through traffic. The Planning Department would downgrade area street classifications to "local streets" to reflect their true use and provide better neighborhood protection. Studies performed by the Planning Department resulted in a multi-modal transportation district and a greenways master plan. The City operates under the Tallahassee/Leon County Multimodal Transportation District Plan. That Plan focuses on bike paths, mass transit, and sidewalks to facilitate greater mobility with fewer roads. Service levels for bicycle paths in the San Luis area are close to critical. The bicycle/pedestrian easement will provide greater connectivity, thereby improving service levels. Many students reside in the vicinity of the proposed road closure and provision of a bike path connecting the areas north of Mission Road with the Ocala Trail south of Tennessee Street would attract more bicycle traffic in the hopes of changing the mode of transportation for college students. The City has a Tallahassee-Leon County Greenways Master Plan (Greenways Plan). The abandonment application provides an opportunity under the Greenways Plan. The bicycle/pedestrian easement will connect an existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park. This is consistent with the Greenways Plan. The City has adopted the Bicycle and Pedestrian Master Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to facilitate greater awareness of bike and pedestrian facilities and to promote construction of new facilities. The bicycle/pedestrian easement would provide greater accessibility to existing amenities and infrastructure and meet the intent of the Bike/ped Plan. Petitioners argued that there already exists a better connection between the existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park via Ocala Road and Continental Avenue. However, the evidence did not prove that the existing route would be safer or better than the connection that would become available as a result of the bicycle/pedestrian easement condition on the proposed abandonment. Even if it would be, an additional route and connection still would serve a public benefit. Petitioners also pointed out that State could dedicate an easement through its property for purposes of a bicycle/pedestrian connection without applying for abandonment of right-of-way and that the City never asked for such a dedication before the State applied for application of the right-of-way. But it is typical to consider such matters in the context of an application for abandonment. Alternatives to Abandonment Petitioners concede that pedestrian safety at the Mission San Luis "would be rendered perfect if the road were abandoned, closed, and eliminated." However, they contend that other steps could be taken to protect the pedestrians as well or better without abandoning the road. First, Petitioners suggest the alternative of a pedestrian crossing with a pedestrian-controlled stop light and advance warning flashers. This suggestion was supported by the testimony of Petitioners' traffic expert, Wayne Coloney. But he assumed there would be 360 feet between the pedestrian crossing and the curve in Mission Road. Actually, the pedestrian crossing would be only approximately 210 feet from the curve, which is less than the 330 feet that Mr. Coloney considered to be safe. The other traffic experts also believed that it would be unsafe to design a pedestrian-crossing that close to the curve, even with advance warning flashers--a design that works best on straight roads with long sight-line distances, such as Meridian Road. Next, Petitioners suggest the construction of an overpass. This would be a more expensive proposition. It would require the construction of ramps, stairs, and elevators to comply with the Americans with Disabilities Act. In addition, to be effective in protecting pedestrians, fencing would have to be installed for a considerable distance on both sides of the road to discourage pedestrians from crossing the road instead of using the overpass. According to Mr. Coloney, all of this would cost between $300,000 and $390,000 to install and between $20,000 and $30,000 to maintain. Both the overpass and the fencing would be at odds with the environment the State would be trying to re- create and maintain on the Mission property. Petitioners also suggest digging a tunnel under the road, which would be less obvious than an overpass. However, this also would require fencing to be effective and would be the most expensive of the suggested alternatives--costing between $450,000 and $690,000 to install. In addition, it would require digging a tunnel through artifact-rich earth, which would be contrary to the a primary purpose of Mission San Luis. Application of Findings to Standards Paragraph 2 of Policy 410 requires a demonstration that an abandonment of right-of-way is "in the best interests of the general public." It is clear that the proposed abandonment is not in any private interest since the abandonment is to the State for incorporation in its Mission San Luis, a public facility. The abandonment is not for the sole purpose of placing property on the tax rolls, or for the benefit an abutting private property owner. It is to benefit the public. It also is primarily to protect the safety of pedestrians working at and visiting the facility, including many school children. For these reasons, the abandonment clearly is in the public interest, as opposed to any private interest. Whether it is in the best interest of the general public is a more difficult judgment to make. But, on balance, the abandonment application, with the standard and recommended conditions, probably is in the best interest of the general public. The proposed abandonment also meets the new policy criteria for abandonment of right-of-way. It does not create any safety or public heath hazard, including environmental health hazard. It does not preclude access to any existing parcel or lot of record. It does not preclude access to any publicly- maintained facility or infrastructure. It does not create any condition inconsistent with the Comprehensive Plan, including the Long-Range Transportation Plan. It does not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain. It does not adversely affect any required service access for any official service provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission recommend to the City Commission that DEP's application for abandonment of right- of-way be granted, with the standard and recommended conditions. DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2008. COPIES FURNISHED: Deepika Andavarapu Tallahassee-Leon County Planning Department 300 South Adams Street, Fourth Floor Tallahassee, Florida 32301-1721 William H. Davis, Esquire Dobson, Davis & Smith 610 North Duval Street Tallahassee, Florida 32301 Jonathan P. Sanford, Esquire Office of the City Attorney 300 South Adams, Box A-5 Tallahassee, Florida 32301 Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
