02-004236 Dan Gilbertson vs. City Of Tallahassee And Tallahassee-Leon County Planning Commission Status: Closed Recommended Order on Friday, May 2, 2003.

Summary: Petitioner demonstrated that his application and requested deviation to Tallahassee Code should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAN GILBERTSON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4236

)

CITY OF TALLAHASSEE and )

TALLAHASSEE - LEON COUNTY )

PLANNING COMMISSION, )

)

Respondents. )

)

RECOMMENDED ORDER

This case was heard on December 9, 2002, in Tallahassee,

Florida, before William R. Pfeiffer, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Dan Gilberts on, pro se

459 West College Avenue

Tallahassee, Florida 32301

For Respondent City of Tallahassee:

Linda R. Hurst, Esquire

City Attorney's Office

300 South Adams Street

City Hall, Box A - 5

Tallahassee, Florida 32301 - 1731

STATEMENT OF THE ISSUE

The issue in this matter is whether Petitioner's

application for a Type - A site plan should be approved.

PRE LIMINARY STATEMENT

On August 29, 2002, Petitioner, Dan Gilbertson, filed a

Type - A Site Plan Application with the City of Tallahassee's

Growth Management Department (Department) seeking approval to

construct moderate additions to two adjacent eating/drinkin g

establishments located at the intersection of College Avenue and

Macomb Street, in the City of Tallahassee, Florida. As part of

the application, Petitioner seeks to deviate from the 25 - foot

minimum building setback requirement codified in

Section 10.3.O .2.d.3 of the City of Tallahassee's Zoning, Site

Plan, and Subdivision Regulations (Tallahassee Code) and

construct a deck behind Potbelly's. Petitioner also seeks to

construct a deck behind The Painted Lady, for which the

Department admits does not requi re a deviation from development

standards.

On September 12, 2002, the Department denied the requested

deviation to the minimum building setback and denied the site

plan application, stating that the site plan is inconsistent

with the standards and requir ements of the City of Tallahassee's

Environmental Management Ordinance, the Tallahassee Code, and

the 2010 Comprehensive Plan.

On October 11, 2002, Petitioner timely filed a Petition for

Formal Administrative Proceedings challenging the denial of the

de viation request and site plan. A Determination of Standing

was issued on October 15, 2002, and on October 24, 2002, the

Petition for Formal Proceedings was transferred to DOAH to

conduct the formal proceedings. By Order entered herein on

October 31, 2002 , and the published Notice of Hearing, the

matter was scheduled for formal hearing on December 9, 2002. On

December 2, 2002, the parties filed a joint pretrial statement.

At the formal hearing, Respondent presented the testimony

of City employees Anoch La nh, Senior Planner, Growth Management

Department; Karen Brown, Administrative Sergeant, Tallahassee

Police Department; Michael E. Sprayberry, Engineer II, Traffic

Engineering Division; David Wayne Tedder, Chief, Land Use

Division of Planning Department; an d Wade L. Pitt, II, Land Use

Administrator, Growth Management Department. The City offered

11 exhibits which were accepted into evidence.

Petitioner appeared pro se , cross - examined each of the

Respondent's witnesses, and testified on his own behalf.

Peti tioner offered seven exhibits which were accepted into

evidence.

Petitioner claims that the denial of the deviation and site

plan prevents improvement, enhancement, and revitalization of

the property; and prevents him from providing handicap

accessibility and improved bathroom conditions on the site. In

addition, Petitioner alleges that the Department improperly

considered unsubstantiated information.

The two - volume Transcript of the hearing was filed on

January 13, 2003. Respondent filed a Proposed Recom mended Order

on February 5, 2003, and Petitioner filed a Proposed Recommended

Order on February 21, 2003, which have been duly considered in

rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Dan Gilbertson, has owned and operated

Potbelly' s restaurant, a student - oriented eating/drinking

establishment, located at 459 West College Avenue, since 1994.

Petitioner also operates a similar establishment known as The

Painted Lady located directly adjacent and to the east of

Potbelly's.

2. Potbe lly's and The Painted Lady are within the

Institutional, Cultural, and University Transitional (DI) Zoning

District. Surrounding uses to Petitioner's property include a

Florida State University parking lot across Macomb Street to the

west of the site, a p rivately owned parking lot across College

Avenue to the north, a fraternity house to the east, and an

apartment complex to the south.

3. The existing Potbelly's and Painted Lady structures

were constructed prior to the adoption of a 25 - foot minimum

buil ding setback from Macomb Street codified in Section

10.3.O.2.d.3, Tallahassee Code. The Potbelly's building is

partially within the 25 - foot setback and is considered a pre -

existing, nonconforming structure.

4. Potbelly's is licensed to operate a full s ervice

kitchen while The Painted Lady is authorized to serve previously

prepared food. Both parties agree that Potbelly's and The

Painted Lady are licensed to serve alcohol within the premises

identified in Respondent's supplemental exhibit.

5. Respond ent, The Tallahassee - Leon Planning Commission,

is the legal entity responsible for reviewing and approving or

denying applications for site plans.

6. In September 2002, Petitioner submitted a site - plan

application seeking to add a deck, handicap ramp, a nd bathrooms

in the southwest area of the Potbelly's property and a deck

behind The Painted Lady. The site plan application for the

additional deck, restrooms, and handicap ramp behind Potbelly's

seeks a deviation from the 25 - foot setback requirement.

7. In its application, Petitioner included architectural

drawings of the premises but did not attach engineering

drawings. Petitioner also enclosed a copy of a previously

issued order dated June 14, 2001, from the Tallahassee - Leon

County Board of Adjustment and Appeals granting a variance to

the setback requirement for an existing deck on the west side of

Potbelly's.

8. Pursuant to Section 23.1, Tallahassee Code, Respondent

may grant the deviation request to development standards only if

it is consistent wi th the comprehensive plan and creates no

adverse impact on the general health, safety, and welfare of the

public.

9. Petitioner's site plan application addresses less than

60,000 square feet and is subject to Type - A site plan review.

Accordingly, Petit ioner's application was reviewed by City staff

including members from the Growth Management Department,

Planning Department, Fire Department, Police Department,

Utilities Department, and Public Works Department including

Solid Waste and Traffic Engineering . Upon review, in October

2002, the Department advised Petitioner that his application had

been denied. Petitioner timely appealed the decision.

Code Deviation Criteria

10. Pursuant to Section 23.3, Tallahassee Code, a request

for deviation from the exi sting development standards is

generally not favored and may only be granted upon a showing by

the applicant that seven specific criteria have been met by a

preponderance of the evidence.

11. First, the applicant must demonstrate that the

deviation wil l not be detrimental to the public good or to the

surrounding properties. The evidence in this case demonstrated

that, although the Tallahassee Police Department (TPD) reported

that it received approximately 17 complaints over a two - year

period for noise, physical disturbances, underage alcohol

consumption, and other offenses, approximately 1 every 50 days,

the frequency and severity of complaints has significantly

declined. Further, Petitioner employs significant private

security to curtail adverse incid ents and has routinely

attempted to hire off - duty TPD officers, but to no avail. There

has been inadequate showing that a reasonable increase in the

size and occupancy of Petitioner's premises will be detrimental

to the public good or to the surrounding p roperties.

12. Second, Petitioner must demonstrate that the requested

deviation is consistent with the intent and purpose of the

Zoning Code and the Comprehensive Plan. Respondent admits that

"the intent of the DI zoning district is to provide a transi tion

between downtown and the two universities, and to encourage

pedestrian friendly or pedestrian oriented activities and

development." Respondent further acknowledges that the intent

of the 25 - foot setback from Macomb Street and the 35 - foot

setback from College Avenue is to provide a transition for

pedestrian activities along the roadways, a reduced scale of

buildings along the pedestrian accesses and room for landscaping

for enhancement of pedestrian activities.

13. The evidence demonstrated that Peti tioner's adjacent

restaurant/bars primarily target and attract college students in

the area and are pedestrian friendly. While the structures

preceded the setback requirements, Petitioner has comported with

the intent of the Tallahassee Code and Comprehen sive Plan by

enhancing vehicular and pedestrian access to the premises and

improving their visual aesthetics.

14. Third, Petitioner must demonstrate that the requested

deviation is the minimum deviation that will make possible the

reasonable use of the la nd, building, or structure. While the

restaurant/bars maintain consistent business, additional patrons

and/or a diversified, multi - use eating/drinking establishment,

given the area, is a reasonable use of the land. Petitioner's

deviation request is the m inimum deviation necessary to garner

the additional and diversified business.

15. Fourth, Petitioner must demonstrate that strict

application of the zoning requirements would constitute a

substantial hardship that is not self - created or imposed.

Stric t application and unreasonable adherence to the 25 - foot

setback requirement, given the minimal external expansion

requested and the fact that the existing structures currently

extend into the setback, create a substantial and unnecessary

hardship upon Peti tioner's expanding business.

16. Fifth, Petitioner must demonstrate whether there are

any exceptional topographic, soil, or other environmental

conditions unique to the property. The parties stipulate that

there are no such environmental features on th e site and the

criterion is not relevant to Petitioner's application.

17. Sixth, Petitioner must demonstrate that the requested

deviation would provide a creative or innovative design

alternative to substantive standards and criteria. Petitioner

has sh own that he intends to moderately expand the student -

oriented, pedestrian friendly, eating/drinking establishment in

the college campus area utilizing a consistent, creative, and

attractive design alternative to the setback requirement.

18. Finally, Pe titioner must demonstrate that the impacts

associated with the deviation will be adequately mitigated

through alternative measures. Any impacts associated with the

deviation are de minimus , however, Petitioner has agreed to

adequately mitigate such impact s. First, Petitioner has

constructed noise insulators on the south fence of the property

to filter out excess sound to the apartment dwellers.

Petitioner has also agreed to provide additional security when

necessary and plans to significantly improve the visual

aesthetics on the southwest side of the building.

19. Respondent argues that Section 14.6 of the Zoning Code

requires one loading berth for any site up to 8,000 square feet

receiving goods and merchandise via motorized vehicle. The

evidence de monstrates that Petitioner's property contains two

parking spaces, identified as a loading berth, located directly

in front of Potbelly's.

20. Respondent, however, persuasively argues that the

existing dumpster on the Potbelly's site does not comply wit h

the City's Solid Waste requirements. Solid Waste and the

Tallahassee Code require each site to provide sufficient space

for a dump truck to enter the site, collect the refuse, and exit

the site without backing into traffic. Although Waste

Management em pties the refuse at approximately 3:00 a.m., the

current location of the dumpster presents a significant safety

hazard which Petitioner must eliminate.

21. Respondent argues that it cannot determine whether

Petitioner's proposal meets the Floor Area Rat io requirements

for the DI zoning district. The evidence presented during the

hearing demonstrates that Petitioner's proposal satisfies the

requirements.

22. While the Tallahassee - Leon County Board of Adjustments

and Appeals of Petitioner's previous appr oval of the existing

deck variance is interesting, it is not relevant to this case.

23. The formal proceeding before the Administrative Law

Judge was properly noticed in the Tallahassee Democrat on

November 24, 2002.

CONCLUSIONS OF LAW

Jurisdiction

24. Pursuant to Section 24.3.C., Tallahassee Code, the

decision of the Growth Management Director becomes final

15 calendar days after it is rendered unless a party files a

notice of intent to file a petition for formal proceedings in

accordance with th e bylaws and completes the application by

filing a petition for formal proceedings within 30 calendar days

after the decision is rendered. In this case, Petitioner timely

filed a Petition for Formal Proceedings and has standing to

contest the decision.

25. Pursuant to the same section, DOAH has jurisdiction

over the subject matter and the parties hereto and must conduct

a de novo quasi - judicial proceeding to determine whether the

application should be approved or denied.

Burden of Proof

26. While Section 24.6, Tallahassee Code, fails to

specifically address the burden of proof in a Commission site

plan proceeding, Section 23.3, Tallahassee Code, provides that

the "applicant shall have the burden of demonstrating through a

preponderance of the evide nce that all conditions necessary to

granting the deviation have been met." The requirement is

consistent with the general rule that the party seeking the

affirmative of the issue should logically bear the burden of

proving by a preponderance of the evide nce that it is entitled

to the requested relief. See , e.g. , Durward Neighborhood

Assoc., Inc., et al. vs. City of Tallahassee, et al. , DOAH Case

No. 98 - 4234 (City of Tall. - Leon Cty. Plan. Comm., October 5,

1999).

27. Accordingly, Petitioner is require d to present a prima

facie case of entitlement to a deviation, at which time the

burden shifts to the Respondent to demonstrate sufficient proof

that the deviation should not be granted.

28. The evidence presented in this case supports a

conclusion that P etitioner has demonstrated by a preponderance

of the evidence that the requested deviation is appropriate and

satisfies the 7 criteria within Section 23.3, Tallahassee Code.

The requested deviation is not inconsistent with the Zoning Code

provisions for t he DI Zoning District related to pedestrian

corridors nor the Comprehensive Plan. There is no credible

evidence that the proposed deviation will adversely impact the

general health, safety, and welfare of the public.

29. It should be noted, however, that Petitioner's current

dumpster location violates the City's Solid Waste requirements

and is a very real and present danger that requires immediate

attention.

30. Pursuant to Section 24.5, Tallahassee Code, the

Planning Commission shall make a final determination relating to

the proposed deviation upon review and consideration of the

Recommended Order by the Administrative Law Judge.

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 approving Petitioner's Type - A

site plan and requested deviation contingent upon Petitioner's

safe and acceptable relocation of the dumpster.

DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee,

Le on County, Florida.

___________________________________

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of May, 2003.

COPIES FURNISHED :

Sylvia Morell Alderman, Esquire

Katz, Kutter, Haigler, Alderman,

Bryant & Yon, P.A.

Post Office Box 18 77

Tallahassee, Florida 32302

Dan Gilbertson

459 West College Avenue

Tallahassee, Florida 32301

Linda R. Hurst, Esquire

City Attorney's Office

300 South Adams Street

City Hall, Box A - 5

Tallahassee, Florida 32301 - 1731

Jean Gregory, Clerk

Tallahassee - L eon County Planning Commission

City Hall

300 South Adams Street

Tallahassee, Florida 32301 - 1731

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any ex ceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.