The Issue The issue is whether AHG Hotels, LLC's application for a Type B site plan and deviation should be approved.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background On September 11, 2002, the Development Review Committee (DRC) of Respondent, City of Tallahassee (City), approved a Type B site review application authorizing the construction of a Hampton Inn & Suites by Respondent, AHG Hotels, LLC (AHG). The DRC also granted AHG's request for a deviation from development standards contained in Section 10.6RR of the City's Zoning Code by allowing AHG to exceed the four-story height limitation and to add a fifth floor to the structure. Two other deviation requests by AHG were determined to be either inapplicable or exempt from Zoning Code requirements because of vesting, and thus they are not at issue here. On October 10, 2002, Petitioner, Capital City Hotels, Inc. (Petitioner), which owns and operates a Hilton Garden Inn near the proposed construction, timely filed a Petition for Formal Proceedings to contest the approval of the deviation request. On October 15, 2002, a determination of standing as to Petitioner was issued by the Tallahassee-Leon County Planning Commission (Commission), which will issue a final order in this matter. As stipulated by the parties at hearing, the only issue is whether AHG failed to satisfy three of the seven criteria that must be met in order for the DRC to grant a deviation. Those disputed criteria are found in paragraphs (iii)-(v) of Section 23.3 of the City's Code of Ordinances (Code) and provide as follows: The deviation requested is the minimum deviation that will make possible the reasonable use of the land, building, or structure; and The strict application of the requirements of this chapter will constitute a substantial hardship to the applicant, which hardship is not self- created or imposed; and There are exceptional topographic, soil, or other environmental conditions unique to the property; The parties agree that all other criteria for the site plan and deviation have been satisfied by AHG. In addition, a related request by AHG for a technical amendment to the boundaries of the parcel will be granted by the DRC, assuming that AHG obtains a favorable ruling in this case. History of the Property The property which is the subject of this case is identified as lot of record 454 and fronts on the west side of Lonnbladh Road, lies south of Raymond Diehl Road and several hundred feet east of Thomasville Road, and is just southeast of the major intersection of Interstate 10 and Thomasville Road in Tallahassee. The zoning for the property is Commercial Parkway (CP), a mixed-use zoning district which applies to areas exhibiting an existing development pattern of office, general commercial, community facilities, and intensive automotive commercial development abutting urban area arterial roadways with high traffic volumes. Among the numerous permitted uses in that land use category are hotels and motels. The property is part of a 7.1-acre site originally owned by Kingswood Land Partners, Ltd. (Kingswood). In January 1990, Kingswood obtained from the City a minor subdivision approval, dividing the 7.1 acres into three lots of record, including lot of record 454. The three lots consisted of a 2.44-acre lot running along most of the western portion of the property with the exception of a small area on the southern end, a 1.68-acre lot on the northeast portion of the property, and a 2.98-acre lot on the southeast portion of the property (lot of record 454). In November 1990, Kingswood received from the City a verification of vested status (vested rights certificate) for the 7.1-acre site. The vested rights certificate provided that the 7.1-acre site was exempt from the consistency and concurrency provisions of the Tallahassee-Leon County Comprehensive Plan (Plan) and was vested for an 89,887 gross square foot commercial non-medical office building and a 135- unit hotel/motel. In 1991, Kingswood utilized the vesting for a 135- unit, five-story hotel and constructed what is now known as the Cabot Lodge on the 2.44-acre lot. It also constructed on part of the southeastern 2.98-acre lot a paved area with parking places. In 1992, Kingswood conveyed to Twin Action Hotels, Inc. (Twin Action) the 2.44-acre lot which included the Cabot Lodge Hotel, but not the paved parking area on the 2.98-acre lot. The same year, Kingswood also conveyed to New Horizons Unlimited, Ltd. (New Horizons) the remaining two lots, which two lots were vested for a commercial non-medical office six- story building of 89,887 gross square feet. At the time of the conveyances of the New Horizons property and the Cabot Lodge property to New Horizons and Twin Action, respectively, these parties entered into a Grants of Reciprocal Easements dated June 23, 1992, recorded in Official Records Book 1570, at page 1072 of the Public Records of Leon County, Florida. Around 1994, the Florida Department of Transportation acquired .333 acres of the northernmost lot owned by New Horizons for a project which included realigning and four-laning Raymond Diehl Road and relocating the eastbound entrance ramp to Interstate 10, immediately in front of the Cabot Lodge lot. This acquisition reduced the New Horizons 1.68-acre lot to 1.347 acres. On October 14, 1998, the City approved a vested rights transfer request submitted by New Horizons, which provided that the New Horizons property could be used for a 107-room, four-story business hotel and 59,162 gross square feet of commercial non-medical offices, instead of the vested 89,887 gross square feet of commercial non-medical offices. Since the acquisition by New Horizons of the two remaining lots, that property has remained vacant and unimproved with the exception of the westernmost portion immediately south of the Cabot Lodge building, on which is located pavement and parking spaces. The parking spaces are not legally available to Cabot Lodge for use. The property located immediately west of the Cabot Lodge 2.44-acre lot is property which is referred to as the Thomasville Road Executive Park (Executive Park) property. On an undisclosed date, this property was divided into three separate lots by a minor subdivision approval consisting of Parcel A on which was constructed the Unisys Building and parking spaces, Parcel B which is now improved with a Hilton Garden Inn owed by Petitioner, and Parcel C which remains undeveloped. In 1996, Petitioner filed its site plan application to develop Parcel B. Included in the site plan application was a request for a technical amendment to adjust the boundary lines between Parcels A and B of the Executive Park property. Like AHG has done here, Petitioner also requested a deviation to the then height limitation of 45 feet, requesting that the City allow it to build the building 50 feet high, rather than the required 45 feet. Although the property on which the Hilton Garden Inn is now located was vested for a three-story commercial office building, subject to CP zoning, the City agreed that the vesting could also be used for a hotel use consisting of four stories rather than three stories. The City granted Petitioner's request to allow it to build a four-story hotel on Parcel B. It also granted Petitioner a height deviation so that the midpoint or peak of the roof would be not higher than 50 feet. However, the top of the roof is 59 feet, 6 inches. The facility has 99 rooms. No objection was made by Cabot Lodge, Unisys, or New Horizons to Petitioner's application for approval of its site plan, the technical amendment adjustment to boundary parcels, the use of the property for a four-story hotel instead of a three-story office building, or the granting of a height deviation. In April 2002, AHG entered into a contract with New Horizons for the purchase of 2.23 acres of the southeastern property owned by New Horizons for approximately $1.5 million. The 2.23 acres is part of the 2.98-acre lot of record known as lot 454. The application On July 5, 2002, AHG filed with the DRC its site plan application to construct a 122-room, five-story hotel on the 2.98-acre lot. On the same day, it filed a Deviation from Development Standard Request asking that it be allowed to construct a five-story hotel on the parcel rather than being limited to a four-story hotel, as required by the development standards for the CP zoning district in which the property is located. New Horizons has also requested a technical amendment to the boundaries of the 1.68-acre lot and the 2.98- acre lot that would result in the 2.98-acre lot on which the hotel will be built being reduced to 2.23 acres. The DRC intends to approve that request, assuming that AHG prevails in this proceeding. AHG's site plan uses the largest footprint for construction of the hotel building that is allowed under current applicable Code restrictions relating to the amount of impervious surface allowed to be constructed on a 2.23-acre lot, as well as the required amount of green space which must be maintained. If current zoning rules and regulations are strictly applied, AHG would be unable to have more than approximately 107 rooms in the hotel, utilizing the maximum footprint and only four stories on the 2.23 acres. The only way to accommodate the construction of 122 rooms is to obtain a deviation from the current restriction of four floors and allow a fifth floor to be built. The proposed height of construction of the five- story hotel will be 53 feet, 10 inches, except for several small areas of parapet walls which will be no higher than 58 feet, 4 inches. The subject site is relatively flat, with no excessive slopes, and it has no remarkable features from an environmental standpoint. It is unique in the sense that it is flat, barren land. It does not have wetlands, pristine water bodies, or other protected conditions. Also, it has no endangered plant species requiring special protection, no patriarch trees, no protected trees, and no native forests. Should the Deviation be Approved? A deviation under Section 23.3 is an amendment to a "set requirement" in the Code, such as a setback or height restriction. Between 60 and 75 percent of all applications filed with the DRC for a site plan approval are accompanied by a request for a deviation from a development standard, which are standards prescribed for each zoning district in the Code. One such development standard for the CP District is a four- story height limitation on structures found in Section 10.6RR of the Zoning Code. The DRC is a four-person committee comprised of representatives from the City's Utility Department, Public Works Department, Growth Management Department, and Planning Department; it is charged with the responsibility of deciding whether to grant or deny a deviation request. For at least the last six years, and probably much longer, the DRC has consistently applied and interpreted the deviation standards in Section 23.3 in the same manner. Although Section 23.3 provides that "the granting of deviations from the development standards in this chapter is not favored," they are not discouraged since more than half of all applicants cannot meet development standards due to site characteristics or other factors. Rather, the intent of the provision is to prevent wholesale deviations being submitted, project after project. Requests for a deviation are always approved, when justified, in order to give both the City and the applicant more flexibility in the development process. Here, AHG's application was treated the same as any other applicant. This case represents the first occasion that an approval of a deviation has been appealed. After an application for a deviation is filed, it is forwarded to all appropriate City departments as well as members of the DRC. Each reviewing agency is requested to provide information to the DRC members on whether or not the request should be recommended for approval. In this case, no adverse comments or recommendations were made by any City Department. After reviewing the Department comments, and the justification submitted by AHG, the DRC approved the deviation. Under Section 5.1 of the Code, the City's land use administrator, Mr. Pitts, has the specific responsibility to interpret all zoning and development approval regulations, including Section 23.3, which provides the criteria for granting a deviation. That provision has an apparent inconsistency between the first two sentences: the first sentence includes a phrase that all criteria set forth thereafter must be met to approve a deviation while the second sentence appears to provide that only the conditions necessary to granting a particular deviation must be met. In resolving this apparent inconsistency, Mr. Pitts does not construe the Section as requiring that all seven criteria must be met in every case. Instead, even though all criteria are reviewed by the DRC, only those that are applicable must be satisfied. If this were not true, the DRC "would grant very few deviations as part of [its] site plan or subdivision regulation [process]," and the intent of the Section would be undermined. For example, in order to justify a deviation, the DRC does not require that an applicant show that there are exceptional topographical soil features if, as here, there are no exceptional environmental features on the property. This interpretation has been consistently followed over the years, is a reasonable and logical construction of the language, and is hereby accepted. As a part of its application, AHG submitted a narrative justifying the granting of a deviation under each of the seven criteria. To satisfy the first disputed criterion, AHG indicated in its application that "[t]his deviation is the minimum allowed to make reasonable use of the property and to compete with adjacent hotels who enjoy the same height opportunity." AHG's use of the property is consistent with adjoining developments, including the neighboring Cabot Lodge, which is five stories high and has 135 rooms, and the Hilton Garden Inn, which was originally vested for an office building, but was allowed by the DRC to construct a four-story hotel. There is no other property available to AHG at this site on which to construct a hotel. The evidence shows that New Horizons initially offered to sell AHG only 2.05 acres; when AHG advised that anything less than 2.23 acres would render the project financially unfeasible, New Horizons "very reluctantly" agreed to sell an additional .18 acres. Because New Horizons intends to build a restaurant on its remaining 2.097 acres, any further reduction in the acreage would reduce its highest and best use of the property. Thus, AHG does not have the option of purchasing more property to expand its hotel laterally, as Petitioner suggests, rather than by adding a fifth floor. In addition, AHG does not have the ability to reduce the size of its hotel rooms in order to squeeze more rooms out of a four-story structure. This is because Hampton Inn (the franchisor) will not grant a franchise for a new hotel unless the franchisee agrees to build a hotel with prototypical room sizes. The present design of the hotel meets the minimum size required. There is no evidence that there is any other minimum deviation that could be granted which would make possible the use of the property for construction of 122 rooms under the standards set forth by Hampton Inn, the franchisor. Thus, the only practical adjustment that can be made is to obtain a height deviation. Accordingly, the criterion has been satisfied. To satisfy the second disputed criterion, AHG stated in its narrative that "[t]he strict application of this requirement would place this property and proposed hotel at a competitive disadvantage by a lower number of available rooms." Through testimony of an AHG principal, it was established that in order for AHG to make reasonable use of its property, the addition of a fifth floor is necessary. The evidence shows that as a general rule, a developer can only afford to pay approximately $10,000.00 per room for land cost. In this case, based on the 2.23 acres, at a purchase price of $1,500,000.00 and a hotel with 122 rooms, the projected land cost is $12,000.00 per room. This is the maximum that can be paid for land and still make AHG's project economically feasible. The strict application of the Zoning Code will make the project financially unfeasible, which will create a substantial hardship to AHG. The hardship is not self-created or imposed. At hearing, Petitioner's representative contended that "there are some companies who would find it financially feasible" to construct a four-story hotel with fewer rooms on the same site. However, the more persuasive evidence on this issue was presented by the AHG principal and shows the contrary to be true. The evidence further shows that the granting of the deviation will result in an almost equal efficiency factor of the total square footage of building versus the total square footage of the site when comparing AHG's proposed project to the neighboring Cabot Lodge. On the other hand, strict application of the Zoning Code could result in a substantially less and disproportionate efficiency factor of AHG's property as compared to the adjoining Cabot Lodge. This is because the highest point of the proposed Hampton Inn and Suites is 58 feet, 6 inches, with the majority of the hotel being 51 feet high. The adjoining five-story, 135-room Cabot Lodge has its highest point at 55 feet, 6 inches, with the majority of the building at 46 feet high. The Hilton Garden Inn has the highest roof with its maximum height at 59 feet, 6 inches, which runs across the entire peak of the roofline. 40. To satisfy the final disputed criterion, AHG indicated in its application that "[t]he absence of any environmental features on this property, or any adjacent environmental features that might be impacted[,] help support the deviation." As noted above, the property in question is unique in the sense that it is flat, treeless, and has no remarkable environmental features. If a site is devoid of environmental features, as it is here, the DRC has consistently interpreted this provision as having no application in the deviation process. This is the same interpretation used by the DRC when it approved Petitioner's application for a height deviation in 1996 to construct the Hilton Garden Inn. Like AHG's property, Petitioner's property was also devoid of environmental features. Therefore, this criterion does not apply. Even assuming arguendo that this provision applies, the addition of a fifth story to a four-story building has no impact whatsoever on the environmental characteristics of the site. Finally, there is no evidence that the deviation request is inconsistent with the Plan, or that the deviation will have any adverse impact to the general health, safety, and welfare of the public. Indeed, as to any Plan implications that might arise through the construction of a hotel, the evidence shows that the project is wholly consistent with the purpose and intent of the CP land use category, which is to promote higher intensity and density in CP-zoned land and to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order granting AHG's Type B site plan review application and its application for a deviation from the height restriction for the CP land use category. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 22nd day of January, 2003. COPIES FURNISHED: Charles R. Gardner, Esquire Gardner, Wadsworth, Shelfer, Duggar & Bist, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308-7914 Linda R. Hurst, Esquire City Hall, Second Floor 300 South Adams Street Tallahassee, Florida 32301-1731 John Marshall Conrad, Esquire Ausley & McMullen Post Office Box 391 Tallahassee, Florida 32302-0391 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
Findings Of Fact Petitioner is an applicant for licensure by examination to practice architecture in Florida. The exam consists of two parts: the written part is given in December of each year and the site and design problem is given in June of each year. Todaro graduated from Ball State University, Muncie, Indiana in 1977 and had met the requirements for admittance to the licensure examination. Todaro took the design and site planning portion of the national architectural exam in June, 1980. This consists of a 12 hour sketch problem involving the design of a structure by the applicant, including requirements for placing the structure on the site, elevations, building cross-sections, facades, and floor plans. The exam is prepared by the National Council of Architectural Registration Boards (NCARB) and is used by all states. Pre-test information supplied to each applicant includes a booklet providing the architectural program to be accomplished and the various requirements to which applicants are expected to apply themselves in order to receive a passing grade. At the examination, other information is supplied to enable the applicant to more adequately design the structure requested and perform the necessary technical architectural requirements. The purpose of the examination is to require the applicant to put together a design and site plan solution in response to a program submitted by NCARB and allows the national testing service grading the examination (and through them the Florida Board of Architecture) to determine whether the applicant is able to coordinate the various structural, design, technical, aesthetic, energy and legal requirements which were tested in written form in the other portion of the examination given in December. The grading of the site and design problem is accomplished by the review of the applicant's product by at least three architects selected by the various architectual registration boards of some 20 states who are then given training by NCARB to standardize their conceptions of the minimal competence required for a passing grade. Each architect-grader is then asked to review various solutions submitted by applicants on a blind grading basis. That is, the grader has no knowledge of the name or state of origin of the solution which lie is grading. The grader is instructed in how to consider the appropriate criteria. Graders are also instructed to make notations for areas of strength and of weakness on the grading criteria and then determine, based upon an overall conception of the applicant's submission, whether or not a passing grade is warranted. A passing grade is a three, and an applicant must receive at least two passing grades from the three architects who independently grade the applicant's submission. In the instant cause, Todaro received two 2's and one 3. He was therefore notified of his failure to pass the examination and of his right to this hearing. While Petitioner established that an effort had been made on his part to comply with the instructions, it is clear that in several material areas he failed to achieve sufficient clarity of presentation, particularly as to adequate consideration to grading and site planning, adequate consideration to marking elevations on his floor plans and adequate notation regarding the type of materials to be used in his elevations, floor plans, and wall sections. In general Todaro failed to place within his solution adequate information to allow the graders to determine that his program could be used; he failed to synthesize the information which he had learned in his educational process, in such a manner as to prepare adequate plans to respond to the requirements of good architectural practice in the formulation of design and site plans.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Stephen Todaro to change his grade on the June, 1980, site and design architectural examination be denied. DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981. COPIES FURNISHED: Stephen A. Todaro 1507 N. E. 5th Avenue Ft. Lauderdale, Florida 33304 John J. Rimes, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner Claudio Ricardo Ramos was a candidate on the 1982 Architecture Design and the Site Planning Examination administered on June 14- 16, 1982 by the Department of Professional Regulation. He is a graduate of the University of Miami with a Bachelor of Architecture Degree and is presently employed by an architecture firm in Miami, Florida. On September 10, 1982 Petitioner was informed by the Department that he had received a failing grade on Part A of the examination. After a review of his examination he requested a formal hearing to contest his failing grade. That request initiated these proceedings. The professional architecture examination consists of two parts, Part A and Part B. Part A is known as the site planning and design portion of the exam. It requires a candidate to draw a solution to a problem involving (a) site plans, (b) floor plans, (c) building sections, (d) two significant building elevations, (e) diagrams of structural systems, (f) diagrams of environmental control systems, and (g) a typical wall section. Part A is blind-graded by at least two examiners designated and approved by the Department. Each examiner judges the individual applicant's entire work product pursuant to evaluation criteria set out in Section 21B- 14.03(1), Florida Administrative Code. Grades ranging from 1 through 4, depending on the quality of the work, are awarded by each examiner. An applicant must have a minimum average of 3 in order to pass Part A of the examination. On the June 1982 examination, all candidates were required to design a small municipal airport terminal building in a midwestern location. The problem required a site plan, ground level plan-north elevation, second level plan, and a cross-section of the facility. While Petitioner demonstrated on his examination that an effort had been made to comply with the instructions set out in the examination and preexamination booklet, he failed in several significant areas to design a structure consistent with the program's requirements. His design for the terminal failed to fit the criteria for floor areas, entrance- exist requirements, circulation pattern through enplaning and deplaning and to comply with the required structural and mechanical details. These deficiencies in Petitioner's design cannot be explained as merely a difference in professional judgment. They are fundamental mistakes which in some respects make his design functionally unsound. It is apparent from Petitioner's design that he spent a considerable portion of his allotted time on the ground level of the airport terminal design and then was without adequate time to prepare the second level plan and integrate that plan with the ground level. Petitioner has failed to present evidence showing that the failing grade he received was given in a capricious or arbitrary manner. Petitioner's grade was well within the range of reasonable professional judgment on what is an unsuccessful performance of the Part A examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Architecture enter a Final Order denying the application of Claudio Ricardo Ramos for licensure as an architect on the grounds that he failed to successfully pass Part A of the architecture examination. DONE and RECOMMENDED this 7th day of April, 1983, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1983. COPIES FURNISHED: Claudio Ricardo Ramos 140 Northwest 87th Avenue Apartment G-222 Miami, Florida 33172 John J. Rimes III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room LL04 Tallahassee, Florida 32301 Herbert Coons, Jr., Executive Director Florida Board of Architecture Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Tallahassee-Leon County Planning Commission (Planning Commission) should approve, approve with conditions, or deny the site plan application filed by the School of Arts and Sciences Foundation, Inc. (SAS). § 9-153, LDC.
Findings Of Fact Petitioner and Leewood Neighborhood Petitioner, Maye Walker, lives in Leewood Hills at 1305 Covington Drive. The "Leewood Neighborhood" consists of three small subdivisions: Leewood Hills; Lisa Park; and Piedmont Forest. The sole access into or out of the Leewood Neighborhood is Leewood Drive, which intersects with Thomasville Road at its eastern end. Cabot Road is a short road running from Leewood Drive to the eastern end of Covington Drive, which parallels Leewood Drive. Lisa Court is a short, dead-end street running from Covington Drive to the north in Lisa Park. Atwood Road is a somewhat longer, dead-end street running north from the western end of Leewood Drive and past the western end of Covington Drive to where it dead-ends in Piedmont Forest. School of Arts and Sciences SAS is located on a 4.03-acre campus at 3208 Thomasville Road. Thomasville Road is the eastern border of the SAS property. The Leewood Neighborhood lies to the south and west of SAS. To the north of SAS is the Piedmont Park Alliance Church. To the east, across Thomasville Road, is the Thomasville Road Baptist Church and Oven Park. SAS is a public charter school sponsored by the Leon County School District. The charter for the School was first approved by the Leon County School Board in April of 1998. By the terms of its charter, SAS may operate a K-12 school with up to 350 students. SAS actually operates as a K-8 school. When it opened, it had approximately 175 students, but enrollment has gone up since then. SAS students come from all over the Leon County School District. SAS's hours of operation are 9:30 a.m. to 3:35 p.m. with an extended day program available beginning at 7:30 a.m. and ending at 6 p.m. SAS operates on the former site of the Epiphany Lutheran Church and Day School. SAS initially leased the site in 1998 with an option to purchase. One of the conditions of purchase was obtaining necessary authorizations from the City for use of the site as a charter school. The City issued a land use compliance certificate (LUCC) on January 5, 1999, which confirmed the ability of SAS to use the Epiphany Lutheran Church and Day School site "for a K-12 Public Charter School." The LUCC also put SAS on notice that its school would be subject to the Education Element of the Comprehensive Plan and that a Type B site plan review would be the process required for adding buildings to the SAS site. (Normally, the type of addition requested by SAS would go through Type A site plan review, but exercising the discretion granted by the City Code, the City's Growth Management Department required a Type B site plan review, which adds a requirement for public notice to the review process.) All buildings currently in use by SAS existed on the site when SAS occupied it. Likewise, the playground on the southern side of the property and the asphalt, outdoor basketball court on the western side of the property were constructed by the Epiphany Lutheran Church and in existence when SAS occupied the site. When the Epiphany Lutheran Church occupied the site, school traffic entered the site from Leewood Drive and Cabot Road, exiting onto Thomasville Road. That traffic circulation pattern caused traffic to back up along Cabot Road and obstruct driveways when parents dropped off and picked up their children, which generated complaints from residents of the Leewood Neighborhood. In response to those complaints, SAS changed the traffic circulation pattern when it occupied the site and began operating. On Monday through Friday, 7:30 a.m. to 6:30 p.m., SAS used a one-way traffic flow through the SAS property, with vehicles entering from Thomasville Road and exiting the school south along Cabot Road to Leewood Drive then left to the intersection with Thomasville Road. A speed bump and stop sign exist at the exit from the SAS property onto Cabot. This change eliminated the traffic backups on Cabot Drive, shifting them to the interior of the SAS property. The traffic circulation pattern used by SAS has been posted on signs at the entrance to and exit from SAS. SAS also has made on an on-going effort to educate its parents as to proper traffic circulation, the need to observe stop signs and no parking signs, and the need to give neighborhood traffic the right-of-way. Unfortunately, not all parents have been compliant, and SAS's efforts have not been able to eliminate problems between parents of school children and residents of the Leewood Neighborhood. On weekends, the site is used by the Thomasville Road Baptist Church for overflow parking, and SAS's auditorium is used on some evenings for performances or other gatherings. For Sunday and evening use, traffic enters and exits onto Thomasville Road. This use of the SAS site does not cause traffic problems for the Leewood Neighborhood. SAS's charter requires it to offer bus service to the students of the school. Bus service is provided by the Leon County Public School District, and the bus number and schedule are determined by the school district based on a number of logistical factors. Currently, eight buses serve the school in the morning and six serve it in the afternoon. SAS's First Addition Proposal On January 6, 2001, SAS obtained another LUCC, which identified the site as "potentially eligible for a 16,559 square foot addition to the existing 15,077 square foot Arts & Sciences Charter School" and identified the applicable review process. It is not clear from the evidence whether SAS ever intended to add 16,559 square feet of building space to its existing campus, as opposed to adding a net of 1,482 square feet for a total of 16,559. In any event, no application was filed to add 16,559 square feet. Instead, a site plan application was filed to add approximately 2,000 square feet of space for a media center and additional classroom. The site plan was designed to accommodate a total of 225 students.4 It is not clear from the evidence what student enrollment at SAS was at the time of this application. However, the evidence was that student enrollment was 211 in February 2002. Although the evidence was that student enrollment can vary during a school year, it probably was approximately 211 during the 2001/2002 school year. During the process of the Type B site plan review of this application, it came to the attention of the City that SAS was not in compliance with vegetation buffers imposed by a Leon County environmental permit issued to the Epiphany Lutheran Church prior to October 1, 1990. SAS was not aware of the requirement before the City required compliance in the spring of 2002. In response, SAS spent approximately $16,000 replacing vegetation buffer along the western boundary of its property and along the southern boundary extending to the east as far as the driveway access to Cabot Road. SAS also added an eight-foot high wood fence along the western boundary line and replaced a low, chain-link fence along the southern boundary, to the east of the driveway access to Cabot Road, adjacent to a residential lot fronting on the east side of Cabot Road, and separating the lot from a kindergarten playground, with an eight-foot high wood fence. It is not clear from the evidence whether an eight-foot high wood fence also was placed along the southern boundary of SAS's property, just north of Covington Drive, west of the driveway access to Cabot Road. There was testimony suggesting that this was done, but the revised site plan under review does not show it.5 In April 2002, the DRC denied SAS's site plan application. Although other grounds for denial were cited as well, one ground for denial was that comprehensive plan and land development regulation provisions for school siting were applicable and precluded site plan approval. When SAS learned it was being denied on that ground, it consulted Dr. Jim Croteau, now Acting Assistant Superintendent for Business Services and Executive Director for Planning and Policy at the Leon County School District. Dr. Croteau was the School Board’s lead on the Education Element of the comprehensive plan, and was the primary drafter of the Education Element. He explained to the City's Planning Department staff that the Education Element applied only to new facilities. Based on these discussions, the City's Planning Department staff reexamined the issue and agreed with Dr. Croteau. SAS was informed of the re-evaluation of the application of the Education Element but was told it had to reapply for site plan approval. SAS's Second Addition Proposal (at Issue) At this juncture in the application process, SAS attempted to further alleviate traffic impacts to the Leewood Neighborhood by proposing a new traffic circulation pattern that would not use Cabot Drive at all. But while SAS thought it possible to have passenger cars enter and exit the site via the Thomasville Road driveway access, it was impossible to devise a way for school buses to also use such a traffic circulation pattern. Then, the City and SAS approached the Piedmont Alliance Church to the north in an attempt to share driveways with SAS, but those efforts ultimately were rejected by the Church. As a result, SAS redesigned its project to turn cars around on the site so that they would enter and exit at Thomasville Road, but with bus traffic routing remaining unchanged. On August 9, 2002, SAS filed a new application with the City for approval of the new site plan. Similar if not identical to the previously denied application, the site plan proposed to add an approximately 1,043 square-foot building for a media center and additional classroom at its campus. (The building being added had two floors, so the additional floor area was twice the square-footage of the building, actually 2,238 square feet.) However, the new traffic circle was proposed as part of this application. It is not clear from the evidence what student enrollment at SAS was at the time of this new application. However, the evidence was that student enrollment was 226 at the end of the 2002/2003 school year. Although the evidence was that student enrollment can vary during a school year, it probably was approximately 225 during the 2002/2003 school year. City staff had numerous concerns with the new site plan, including the potential for dangerous conflict between pedestrians and car and bus traffic. In addition, the redesigned project would require changes to the driveway that would impact stormwater treatment and require the placement of stormwater facilities within the 25-year floodplain. On January 27, 2003, the City's (DRC) denied the applications, as submitted. After further discussion with the City's staff, SAS submitted a revised site plan application on March 8, 2004, which reverted to the one-way, flow-through traffic circulation that has been in effect since SAS has been in operation on the site (and eliminated the need to impact stormwater treatment or require the placement of stormwater facilities within the 25-year floodplain). On March 23, 2004, the DRC approved the revised site plan, with conditions, including a 225 cap on student enrollment. While SAS's site plan application is to add a two-story building addition to provide an additional classroom, as well as a media center, SAS intends to utilize the new classroom instead of an existing undersized classroom, which will become a conference room, so that the number of classrooms will not increase. SAS's representatives testified that the purpose of the addition was not to increase the student population, and SAS agreed to the 225-student cap as a condition of site plan approval, even though current enrollment is approximately 230. School Siting Provisions Inapplicable The evidence was clear that, while some City officials have suggested at earlier points in the site plan review process that compliance with comprehensive plan and land development regulation provisions for school siting were applicable and precluded site plan approval, those provisions actually do not apply to site plans for additions to existing schools. As stated in the City's Planning Department staff report dated March 17, 2004: "The proposed development is not inconsistent with the goals, objectives, and policies of the Education Element of the Tallahassee-Leon County Comprehensive Plan. The provisions of this element include requirements for determining the appropriate locations for new educational facilities but do not address the expansion or modification of existing, established educational facilities." The wording of the Education Element, Objectives 1.2, Policies 1.2.1, 1.2.5, 1.2.7 and 1.3.1 illustrate the intent to apply only to new facilities. If the Education Element applied to existing facilities, many capital improvements, including some planned with sales tax money, would not be able to proceed on many existing schools. As many as half of the District's existing school sites would not be in compliance with the Education Element of the Comprehensive Plan. SAS's property is categorized as Residential Preservation land use on the Comprehensive Plan Land Use Map and is located in a Residential Preservation 1 zoning district. Schools are an allowable use in these comprehensive plan and zoning categories. The Comprehensive Plan and the LDC contain similar identical matrices which prohibit connection of a community service facility to a local road and require planned unit development (PUD) review. But the evidence was clear that those provisions apply only new land uses, not to evaluation of an existing use. Traffic and Noise Impacts of Proposal at Issue The evidence was that, in order of preference, the Piedmont Park Alliance Church driveway was the best for sight distance, with Leewood Drive being almost as good. From a traffic safety standpoint, exiting cars back onto Thomasville Road at the existing SAS driveway was the worst option for two reasons: it had the poorest sight distance of the alternatives; and the median opening on Thomasville Road allowed for the interaction of vehicles from two opposing driveways (SAS's and Thomasville Road Baptist Church's). The evidence suggested that, in May 2004, SAS was adding approximately 300 car and bus trips a day to other neighborhood traffic traveling south on Cabot Drive and east on Leewood Drive to Thomasville Road. Even so, the one-way SAS traffic flowing through the campus and exiting at Cabot Drive tends to be fairly-well spread out. Students beginning to arrive from 7:30 a.m. for the extended day program up through the beginning of the official school day at 9:30 a.m., spaced at an average of 2- to 5-minute intervals, but with a more concentrated peak traffic between 8:45 and 9:30 a.m. In the afternoon and evening, students seemed to be picked up between 3:30 and 6 p.m., with two separate peaks, one between 3:30 and 4 p.m. and another between 5:30 and 6 p.m., but otherwise sporadically. A certain amount of noise generated by SAS's operations impacts at least parts of the neighborhood. There was some evidence to suggest that the proposed two-story addition would add to noise impacts of the basketball court and play area on the western end of the campus by adding to the echo chamber effect of existing building being added to (identified as the former parsonage of the Epiphany Lutheran Church). But at the hearing, SAS committed to construction in accordance with plan elevations placed in evidence as SAS Exhibit j, so that the proposed two- story addition would be attached to the east side of the existing building with a roofline that matches the roofline of the existing building to the west. As a result, while the significant noise impacts to the residents in the home to the immediate west of SAS are not to be taken lightly, the second story of SAS's proposed addition would not add to noise impacts. Because the proposed addition is not anticipated to increase the student population, the addition itself is not expected to increase traffic impacts--either through additional traffic or a different traffic pattern. For the same reason, the addition itself is not expected to increase noise impacts or other disturbances to the Leewood Neighborhood. However, it should be recognized that the purpose of the addition is to enable SAS to better accommodate an increase in student population from 175 when it first opened to 225 under the cap, which was allowed under the LUCC issued in January 1999. For this reason, for the protection of the Leewood Neighborhood, it is imperative that the 225 cap be strictly enforced. The evidence suggested that one way to do this would be to require SAS to report to the appropriate City enforcement officials if enrollment ever exceeds the 225 cap. Visual Impacts and Buffers As for alleged visual impacts from the addition on the residents in the home to the immediate west of SAS (especially from their second story), if constructed in accordance with SAS Exhibit j, not only would the second story of SAS's proposed addition not add to noise impacts, it would not be visible at all from the west. From the south (from sightlines along Covington Drive), even if no eight-foot wooden fence has been erected in that location, the existing vegetation buffer would remain and provide some visual buffer--approximately the same visual buffer that the vegetation was providing for the existing building (the old parsonage). To the extent that Petitioner raised a question as to efficacy of the vegetation buffer in that location, there was no persuasive evidence that the vegetation buffer was inadequate for the addition. From sightline through SAS's driveway access at Cabot Drive, the addition would be visible, but the existing building (the old parsonage) also is visible along those sightlines. A question also was raised as to the SAS's compliance with the vegetation buffer requirements--specifically, that some of the buffer has been removed improperly. Vegetation was removed in the area of the kindergarten playground, but that vegetation buffer was replaced by a privacy fence acceptable to the adjacent resident and by additional vegetation buffer farther to the east. Some vegetation also was removed incidental to installation of a privacy fence in the vicinity of the basketball court.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission approve SAS's site plan application, with the conditions recommended by the DRC, together with additional conditions: to report to the appropriate City code enforcement officials if SAS's student enrollment ever exceeds 225; and to limit the height of the proposed addition to the roofline of the existing building, as depicted in SAS Exhibit j. DONE AND ENTERED this 21st day of October, 2004, 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 21st day of October, 2004.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In June 1990, petitioner was a candidate on section 4 of the landscape architect examination, having previously passed the other five sections on the examination. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Landscape Architecture (Board). On October 8, 1990, DPR issued a written uniform grade notice advising petitioner that he had received a grade of 65.7 on the examination. A grade of 75 is necessary to pass this section of the examination. The Board has adopted a rule authorizing an unsuccessful candidate to attend a post-examination review session in Tallahassee for the purpose of challenging his grade. Under this procedure, a candidate may request another grader to regrade the challenged portions of the examination. In this case, petitioner opted to use this procedure and challenged various problems in section 4. Two other graders regraded the examination and, while raising some scores, the graders also lowered others, which resulted in an overall scale score of 73. By letter dated March 31, 1991, petitioner requested a formal hearing to contest his grade. In his letter, Delate generally contended he was entitled to a passing grade because his examination solutions were graded in a "careless and inconsistent nature", the instructions given at the examination were "very confusing and interruptive", the regrading of his examination was improper because it resulted the in lowering of the original scores on some problems, three multiple choice questions were arbitrarily thrown out after the examination was given, the passing grade was arbitrarily raised by the Board from 74.5 to 75, and he did not receive appropriate credit on ten problems. The June 1990 examination was a uniform national examination used in approximately thirty-eight states, including Florida. With the exception of one section, all sections on the examination were prepared by the Council of Landscape Architectural Registration Boards (CLARB), a national organization of which the Florida board is a member. The examination is blind graded by volunteer licensed landscape architects who receive training from and are "standardized" by master graders prior to the test. On this examination, the solutions by all candidates from the southeastern region of the United States, including Florida, were placed in one group and graded by the same persons. The graders used an evaluation guide prepared by CLARB which contained guidelines and criteria for assigning scores. Since two parts of section 4 are graded subjectively, it is not unusual for two graders to reach a different conclusion with respect to a particular problem. There is no evidence that the first or second graders who reviewed Delate's examination were arbitrary, inconsistent or careless as he has alleged. Section 4 of the examination involves the subject matter of design implementation and consists of parts 4a and 4b. Part 4a had four factors (problems) while part 4b had seven factors. Each factor is assigned points which may range from zero for no credit to as high as eight, depending on the number of items in the factor. In this case petitioner has challenged the score he received on all four factors in part 4a and factors one through six in part 4b. In order to maintain the confidentiality of the specific problems on this examination, it is suffice to say that the candidate on section 4 was required to prepare a large drawing for each part, one being a "layout and dimensioning" drawing, that is, he was required to lay out fixed and proposed elements (e.g., sidewalks, drains, paving detail) and to locate their dimensions, and the other being a "detail and specification" drawing which required the candidate to draw the details and specifications for such things as walls, pavement, decking and the like. Petitioner's drawings have been received in evidence as respondent's exhibits 4 and 5. Each party presented evidence regarding the appropriate grade that should have been assigned to the problems in dispute. Petitioner testified on his own behalf and presented the testimony of another candidate on the same examination and an engineering technician. Although the undersigned allowed the witnesses to express opinions regarding the examination, none were qualified or accepted as experts, and none were familiar with the specific grading criteria for this examination. The Board presented the testimony of a long-time licensed landscape architect, C. Michael Oliver, who is a master grader for CLARB and has been grading the national examination for a number of years. As a master grader, Oliver trains other graders on the national examination. Petitioner's contention that Oliver's testimony is irrelevant has been rejected. 1/ Oliver regraded parts 4a and 4b on petitioner's examination and concluded that Delate was not entitled to a passing grade. He reached this conclusion as to part 4a because the candidate had missing or incorrect dimensions, inaccurately located elements, and poorly communicated plan layout. The expert also reached the same conclusion with respect to part 4b because the candidate had a lack of dimension, missing elements, an unsound structure, and poor communicative skills. This testimony is found to be more credible and persuasive than that offered by petitioner and is hereby accepted. Therefore, it is found that petitioner was not entitled to have his grade raised on parts 4a and 4b. Petitioner also contended that he would have received a passing grade if the Board had not thrown out three multiple choice questions after the examination was given. However, the evidence shows that if the questions had been used, the passing grade (based upon the difficulty of the examination) would have been raised and petitioner would still not achieve a scale score of 75. Petitioner next contended that the Board acted improperly during the regrading process because the second graders lowered the scores from the original grade on some of the challenged questions. In other words, the second graders not only raised certain scores, but they also lowered others resulting in a revised grade of 73, still short of the required 75. Delate complained this was unfair and that no prior notice was given to him regarding this procedure. However, it was established that this process, which is not codified by rule, is an accepted testing procedure, is used on all professional examinations administered by DPR, and never results in the revised score being reduced below the original overall score. Therefore, the agency's policy is found to be justified and adequately explicated. Delate also contended that the review session graders were given unlimited time to grade the examination in contrast to the original graders who had a compressed time schedule and numerous examinations to review. Even so, this can hardly be deemed to be arbitrary or unfair since the second graders raised petitioner's grade by some seven points. Petitioner's next contentions concerned "confusing and interruptive" instructions allegedly given at both the examination and regrading session and an allegation that the Board acted arbitrarily by changing (on an undisclosed date) the required grade for passing from 74.5 to 75. However, there was no evidence to support the allegation that these matters prejudiced petitioner, and in any event, all original and review session candidates would have been subject to the same interruptions, time constraints and passing grade requirements. Further, if the change in the passing grade (from 74.5 to 75) occurred after the examination was given, petitioner's grade (73) was still too low to be affected by that change. Finally, petitioner cited the fact that he will lose his job as a landscape architect with Collier County if he does not receive a passing grade. While this factor obviously has profound economic and personal ramifications for petitioner, it is not a consideration in the grading process.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a final order confirming petitioner's grade of 73 on section 4 of the June 1990 examination. DONE and ENTERED this 20th day of September, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of September, 1991.
Findings Of Fact Petitioner is a licensed architect in the State of Michigan. He began working in this field in 1964 as a designer-draftsman. He later served as a job captain, supervising draftsmen and designers. He began practicing architecture as a principal in February, 1974, and has been active as an architect since that time. Petitioner began his education in architecture at the University of Oklahoma in 1960, but did not obtain an architectural degree. He began graduate studies at the University of Detroit in 1974 and was awarded a Masters of Architecture Degree in December, 1975. Petitioner was originally registered as an architect in Michigan on February 2, 1975. He obtained his registration without an architectural degree on the basis of his training, experience and national examination results.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent enter a Final Order affirming its denial of Petitioner's application for licensure by endorsement. DONE and ENTERED this 28th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1983.
Findings Of Fact In June 1987, petitioner, Karl T. Christiansen, was an examinee on Sections 3, 4 and 5 of the Uniform National Examination for landscape architects. He had previously passed Sections 1 and 2 in the June, 1986 examination. The test is administered by the Office of Examination Services of the Department of Professional Regulation, and licensure is granted by respondent, Board of Landscape Architects. The examination in question is a uniform multi-state examination adopted for use in Florida. The questions are prepared by the Council of Landscape Architectural Registration Boards. The same organization also prepares a comprehensive Evaluation Guide for use by graders in scoring the test. All Florida graders must be professional landscape architects with at least five years' experience. In addition, they are given training by the Office of Examination Services before grading the examination. After the examination was completed by the candidates, all examinations, including that of Christiansen, were blind-graded by the graders using the Evaluation Guide as a tool. By notice dated October 23, 1987, petitioner was advised by the Office of Examination Services that he had received the following scores on Sections 3, 4 and 5 of the examination: Design Application 84.4 PASS Design Implementation 70.8 FAIL Florida Section 76.2 PASS On December 14, 1987, petitioner was given an opportunity to meet with Board representatives in Tallahassee and present objections concerning his score on Section 4 of the examination. Because of Christiansen's concerns, the Board regraded his examination a second time and raised his overall score from 70.8 to 72.4. This was still short of the 74.5 needed for passing. After being given the results of the second grading, petitioner requested a formal hearing. At hearing petitioner lodged objections to scores received on twenty- one questions in Subparts A, B and C of Section 4 of the examination. These objections are contained in joint composite exhibit 1 received in evidence. It was Christiansen's position that the graders had used subjective standards in evaluating his solutions, and that they had failed to take a sufficient amount of time to evaluate his answers. In addition, Christiansen contended that the examiners had failed to note a number of correct answers for which he was not given credit. Other than his own testimony, petitioner did not present any other evidence to support his contentions. Indeed, his own witness, a Fort Lauderdale landscape architect with thirty years experience, concluded that the Board was correct in failing Christiansen and that Christiansen had not demonstrated adequate competence on the examination to justify a passing grade. In support of its position, respondent presented an expert, Michael Oliver, a longtime registered landscape architect with three years experience in grading this type of examination. In preparation for the hearing, Oliver reviewed the examination, instruction booklet and grader's Evaluation Guide. He then regraded petitioner's examination and assigned it a score of 73.4, which was a failing grade. In doing so, Oliver assigned higher scores than did the previous two graders to certain questions but lower scores to others, for an overall average of 73.4. Through a detailed analysis, Oliver pointed out the infirmities in each of Christiansen's objections and why an overall failing grade was appropriate. It was demonstrated by a preponderance of evidence that, where petitioner had not received the desired grade, he had misinterpreted the instructions, prepared unsafe designs, failed to satisfy all criteria, or gave incorrect answers. Therefore, petitioner's grade should not be changed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Board denying petitioner's request to receive a passing grade on section 4 of the June, 1987 landscape architecture examination. DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988.
