02-004237 Capital City Hotels, Inc. vs. City Of Tallahassee And Atg Hotels, Llc
 Status: Closed
Recommended Order on Wednesday, January 22, 2003.


View Dockets  
Summary: Height deviation from zoning code approved where applicant submitted justification for deviating from code.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CAPITAL CITY HOTELS, INC., )

13)

14Petitioner, )

16)

17vs. ) Case No. 02 - 4237

24)

25CITY OF TALLAHASSEE and AHG )

31HOTELS, LLC, )

34)

35Respondents. )

37________________________________)

38RECOMMENDED ORDER

40Pursuant to notice, a formal hearing was he ld in this

51case on December 10, 2002, in Tallahassee, Florida, before

60Donald R. Alexander, the assigned Administrative Law Judge of

69the Division of Administrative Hearings.

74APPEARANCES

75For Petitioner: Charles R. Gardner, Esquire

81Gardner, Wadsworth, Duggar,

84Bist & Weiner, P.A.

881300 Thomaswood Drive

91Tallahassee, Florida 32308 - 7914

96For Respondent: Linda R. Hurst, Esquire

102(City) City Hall, Second Floor

107300 South Adams Street

111Tallahassee, Florida 32301 - 1731

116For Respondent: James Marshall Conrad, Esquire

122(AHG) Ausley & McMullen

126Post Office Box 391

130Tallahassee, Flori da 32302 - 0391

136STATEMENT OF THE ISSUE

140The issue is whether AHG Hotels, LLC's application for a

150Type B site plan and deviation should be approved.

159PRELIMINARY STATEMENT

161This matter began on September 11, 2002, when the

170Development Review Committee of Res pondent, City of

178Tallahassee, approved a site plan filed by Respondent, AHG

187Hotels, LLC, which authorizes the construction of a 122 - room,

198five - story hotel on a 2.23 - acre parcel located just southeast

211of the intersection of Interstate 10 and Thomasville Roa d in

222Tallahassee, Florida. The Development Review Committee also

229approved a deviation from the development standards found in

238the Zoning Code and allowed the applicant to exceed a four -

250story height limitation.

253On October 10, 2002, Petitioner, Capital City Hotels,

261Inc., which owns a hotel near the site of the proposed

272construction, filed its Petition for Formal Proceedings with

280the Tallahassee - Leon County Planning Commission challenging

288the deviation decision. Pursuant to that entity's By - Laws,

298the matter was then referred to the Division of Administrative

308Hearings on October 24, 2002, with a request that an

318Administrative Law Judge be assigned to conduct a formal

327hearing.

328The matter was scheduled for a final hearing on

337December 10, 2002, in Tallahasse e, Florida. At the final

347hearing, Petitioner presented the testimony of Cochran A.

355Scott, Jr., its managing partner. Respondent, AHG Hotels,

363LLC, presented the testimony of Thomas C. O'Steen, a land

373planning consultant; Timothy C. Metzner, owner of the

381p roperty; and Royce J. Carter, a principal in AHG Hotels, LLC.

393Also, it offered Applicant's Exhibits 1 - 10, which were

403received in evidence. In addition, by agreement of counsel,

412Applicant's Exhibit 11 was received in evidence after the

421hearing had ended. Respondent, City of Tallahassee, presented

429the testimony of Dwight R. Arnold, Jr., environmental services

438administrator in the growth management department, and Wade L.

447Pitts, III, land use administrator in the growth management

456department. Also, it offe red City Exhibits 1 - 12, which were

468received in evidence.

471The Transcript of the hearing was filed on December 27,

4812002. Proposed Findings of Fact and Conclusions of Law were

491filed by Respondents and Petitioner on January 13 and 14,

5012003, respectively, and they have been considered by the

510undersigned in the preparation of this Recommended Order.

518FINDINGS OF FACT

521Based upon all of the evidence, including the stipulation

530of counsel, the following findings of fact are determined:

539a. Background

5411. On Sept ember 11, 2002, the Development Review

550Committee (DRC) of Respondent, City of Tallahassee (City),

558approved a Type B site review application authorizing the

567construction of a Hampton Inn & Suites by Respondent, AHG

577Hotels, LLC (AHG). The DRC also granted A HG's request for a

589deviation from development standards contained in Section

59610.6RR of the City's Zoning Code by allowing AHG to exceed the

608four - story height limitation and to add a fifth floor to the

621structure. Two other deviation requests by AHG were

629determined to be either inapplicable or exempt from Zoning

638Code requirements because of vesting, and thus they are not at

649issue here.

6512. On October 10, 2002, Petitioner, Capital City Hotels,

660Inc. (Petitioner), which owns and operates a Hilton Garden Inn

670nea r the proposed construction, timely filed a Petition for

680Formal Proceedings to contest the approval of the deviation

689request. On October 15, 2002, a determination of standing as

699to Petitioner was issued by the Tallahassee - Leon County

709Planning Commission ( Commission), which will issue a final

718order in this matter.

7223. As stipulated by the parties at hearing, the only

732issue is whether AHG failed to satisfy three of the seven

743criteria that must be met in order for the DRC to grant a

756deviation. Those dispute d criteria are found in paragraphs

765(iii) - (v) of Section 23.3 of the City's Code of Ordinances

777(Code) and provide as follows:

782(iii) The deviation requested is the

788minimum deviation that will make possible

794the reasonable use of the land, building,

801or struct ure; and

805(iv) The strict application of the

811requirements of this chapter will

816constitute a substantial hardship to the

822applicant, which hardship is not self -

829created or imposed; and

833(v) There are exceptional topographic,

838soil, or other environmental condi tions

844unique to the property;

848The parties agree that all other criteria for the site plan

859and deviation have been satisfied by AHG. In addition, a

869related request by AHG for a technical amendment to the

879boundaries of the parcel will be granted by the DRC , assuming

890that AHG obtains a favorable ruling in this case.

899b. History of the Property

9044. The property which is the subject of this case is

915identified as lot of record 454 and fronts on the west side of

928Lonnbladh Road, lies south of Raymond Diehl Road a nd several

939hundred feet east of Thomasville Road, and is just southeast

949of the major intersection of Interstate 10 and Thomasville

958Road in Tallahassee. The zoning for the property is

967Commercial Parkway (CP), a mixed - use zoning district which

977applies to ar eas exhibiting an existing development pattern of

987office, general commercial, community facilities, and

993intensive automotive commercial development abutting urban

999area arterial roadways with high traffic volumes. Among the

1008numerous permitted uses in that land use category are hotels

1018and motels.

10205. The property is part of a 7.1 - acre site originally

1032owned by Kingswood Land Partners, Ltd. (Kingswood). In

1040January 1990, Kingswood obtained from the City a minor

1049subdivision approval, dividing the 7.1 acres in to three lots

1059of record, including lot of record 454. The three lots

1069consisted of a 2.44 - acre lot running along most of the western

1082portion of the property with the exception of a small area on

1094the southern end, a 1.68 - acre lot on the northeast portion of

1107the property, and a 2.98 - acre lot on the southeast portion of

1120the property (lot of record 454).

11266. In November 1990, Kingswood received from the City a

1136verification of vested status (vested rights certificate) for

1144the 7.1 - acre site. The vested rights c ertificate provided

1155that the 7.1 - acre site was exempt from the consistency and

1167concurrency provisions of the Tallahassee - Leon County

1175Comprehensive Plan (Plan) and was vested for an 89,887 gross

1186square foot commercial non - medical office building and a 135 -

1198unit hotel/motel.

12007. In 1991, Kingswood utilized the vesting for a 135 -

1211unit, five - story hotel and constructed what is now known as

1223the Cabot Lodge on the 2.44 - acre lot. It also constructed on

1236part of the southeastern 2.98 - acre lot a paved area with

1248park ing places.

12518. In 1992, Kingswood conveyed to Twin Action Hotels,

1260Inc. (Twin Action) the 2.44 - acre lot which included the Cabot

1272Lodge Hotel, but not the paved parking area on the 2.98 - acre

1285lot. The same year, Kingswood also conveyed to New Horizons

1295Unl imited, Ltd. (New Horizons) the remaining two lots, which

1305two lots were vested for a commercial non - medical office six -

1318story building of 89,887 gross square feet.

13269. At the time of the conveyances of the New Horizons

1337property and the Cabot Lodge propert y to New Horizons and Twin

1349Action, respectively, these parties entered into a Grants of

1358Reciprocal Easements dated June 23, 1992, recorded in Official

1367Records Book 1570, at page 1072 of the Public Records of Leon

1379County, Florida.

138110. Around 1994, the Flor ida Department of

1389Transportation acquired .333 acres of the northernmost lot

1397owned by New Horizons for a project which included realigning

1407and four - laning Raymond Diehl Road and relocating the

1417eastbound entrance ramp to Interstate 10, immediately in front

1426of the Cabot Lodge lot. This acquisition reduced the New

1436Horizons 1.68 - acre lot to 1.347 acres.

144411. On October 14, 1998, the City approved a vested

1454rights transfer request submitted by New Horizons, which

1462provided that the New Horizons property could b e used for a

1474107 - room, four - story business hotel and 59,162 gross square

1487feet of commercial non - medical offices, instead of the vested

149889,887 gross square feet of commercial non - medical offices.

150912. Since the acquisition by New Horizons of the two

1519remaini ng lots, that property has remained vacant and

1528unimproved with the exception of the westernmost portion

1536immediately south of the Cabot Lodge building, on which is

1546located pavement and parking spaces. The parking spaces are

1555not legally available to Cabot L odge for use.

156413. The property located immediately west of the Cabot

1573Lodge 2.44 - acre lot is property which is referred to as the

1586Thomasville Road Executive Park (Executive Park) property. On

1594an undisclosed date, this property was divided into three

1603separ ate lots by a minor subdivision approval consisting of

1613Parcel A on which was constructed the Unisys Building and

1623parking spaces, Parcel B which is now improved with a Hilton

1634Garden Inn owed by Petitioner, and Parcel C which remains

1644undeveloped.

164514. In 199 6, Petitioner filed its site plan application

1655to develop Parcel B. Included in the site plan application

1665was a request for a technical amendment to adjust the boundary

1676lines between Parcels A and B of the Executive Park property.

1687Like AHG has done here, Petitioner also requested a deviation

1697to the then height limitation of 45 feet, requesting that the

1708City allow it to build the building 50 feet high, rather than

1720the required 45 feet. Although the property on which the

1730Hilton Garden Inn is now located was vested for a three - story

1743commercial office building, subject to CP zoning, the City

1752agreed that the vesting could also be used for a hotel use

1764consisting of four stories rather than three stories.

177215. The City granted Petitioner's request to allow it to

1782build a four - story hotel on Parcel B. It also granted

1794Petitioner a height deviation so that the midpoint or peak of

1805the roof would be not higher than 50 feet. However, the top

1817of the roof is 59 feet, 6 inches. The facility has 99 rooms.

183016. No objecti on was made by Cabot Lodge, Unisys, or New

1842Horizons to Petitioner's application for approval of its site

1851plan, the technical amendment adjustment to boundary parcels,

1859the use of the property for a four - story hotel instead of a

1873three - story office building, or the granting of a height

1884deviation.

188517. In April 2002, AHG entered into a contract with New

1896Horizons for the purchase of 2.23 acres of the southeastern

1906property owned by New Horizons for approximately $1.5 million.

1915The 2.23 acres is part of the 2.98 - acre lot of record known as

1930lot 454.

1932c. The application

193518. On July 5, 2002, AHG filed with the DRC its site

1947plan application to construct a 122 - room, five - story hotel on

1960the 2.98 - acre lot. On the same day, it filed a Deviation from

1974Development Standard Request asking that it be allowed to

1983construct a five - story hotel on the parcel rather than being

1995limited to a four - story hotel, as required by the development

2007standards for the CP zoning district in which the property is

2018located.

201919. New Horizons has al so requested a technical

2028amendment to the boundaries of the 1.68 - acre lot and the 2.98 -

2042acre lot that would result in the 2.98 - acre lot on which the

2056hotel will be built being reduced to 2.23 acres. The DRC

2067intends to approve that request, assuming that AHG prevails in

2077this proceeding.

207920. AHG's site plan uses the largest footprint for

2088construction of the hotel building that is allowed under

2097current applicable Code restrictions relating to the amount of

2106impervious surface allowed to be constructed on a 2.23 - acre

2117lot, as well as the required amount of green space which must

2129be maintained.

213121. If current zoning rules and regulations are strictly

2140applied, AHG would be unable to have more than approximately

2150107 rooms in the hotel, utilizing the maximum foot print and

2161only four stories on the 2.23 acres. The only way to

2172accommodate the construction of 122 rooms is to obtain a

2182deviation from the current restriction of four floors and

2191allow a fifth floor to be built.

219822. The proposed height of construction of the five -

2208story hotel will be 53 feet, 10 inches, except for several

2219small areas of parapet walls which will be no higher than 58

2231feet, 4 inches.

223423. The subject site is relatively flat, with no

2243excessive slopes, and it has no remarkable features from an

2253environmental standpoint. It is unique in the sense that it

2263is flat, barren land. It does not have wetlands, pristine

2273water bodies, or other protected conditions. Also, it has no

2283endangered plant species requiring special protection, no

2290patriarch trees , no protected trees, and no native forests.

2299d. Should the Deviation be Approved ?

230524. A deviation under Section 23.3 is an amendment to a

"2316set requirement" in the Code, such as a setback or height

2327restriction. Between 60 and 75 percent of all applicat ions

2337filed with the DRC for a site plan approval are accompanied by

2349a request for a deviation from a development standard, which

2359are standards prescribed for each zoning district in the Code.

2369One such development standard for the CP District is a four -

2381sto ry height limitation on structures found in Section 10.6RR

2391of the Zoning Code.

239525. The DRC is a four - person committee comprised of

2406representatives from the City's Utility Department, Public

2413Works Department, Growth Management Department, and Planning

2420De partment; it is charged with the responsibility of deciding

2430whether to grant or deny a deviation request. For at least

2441the last six years, and probably much longer, the DRC has

2452consistently applied and interpreted the deviation standards

2459in Section 23.3 i n the same manner.

246726. Although Section 23.3 provides that "the granting of

2476deviations from the development standards in this chapter is

2485not favored," they are not discouraged since more than half of

2496all applicants cannot meet development standards due to site

2505characteristics or other factors. Rather, the intent of the

2514provision is to prevent wholesale deviations being submitted,

2522project after project. Requests for a deviation are always

2531approved, when justified, in order to give both the City and

2542the applicant more flexibility in the development process.

2550Here, AHG's application was treated the same as any other

2560applicant. This case represents the first occasion that an

2569approval of a deviation has been appealed.

257627. After an application for a deviati on is filed, it is

2588forwarded to all appropriate City departments as well as

2597members of the DRC. Each reviewing agency is requested to

2607provide information to the DRC members on whether or not the

2618request should be recommended for approval. In this case, n o

2629adverse comments or recommendations were made by any City

2638Department. After reviewing the Department comments, and the

2646justification submitted by AHG, the DRC approved the

2654deviation.

265528. Under Section 5.1 of the Code, the City's land use

2666administrato r, Mr. Pitts, has the specific responsibility to

2675interpret all zoning and development approval regulations,

2682including Section 23.3, which provides the criteria for

2690granting a deviation. That provision has an apparent

2698inconsistency between the first two se ntences: the first

2707sentence includes a phrase that all criteria set forth

2716thereafter must be met to approve a deviation while the second

2727sentence appears to provide that only the conditions necessary

2736to granting a particular deviation must be met.

274429. In resolving this apparent inconsistency, Mr. Pitts

2752does not construe the Section as requiring that all seven

2762criteria must be met in every case. Instead, even though all

2773criteria are reviewed by the DRC, only those that are

2783applicable must be satisfied. If this were not true, the DRC

"2794would grant very few deviations as part of [its] site plan or

2806subdivision regulation [process]," and the intent of the

2814Section would be undermined. For example, in order to justify

2824a deviation, the DRC does not require tha t an applicant show

2836that there are exceptional topographical soil features if, as

2845here, there are no exceptional environmental features on the

2854property. This interpretation has been consistently followed

2861over the years, is a reasonable and logical constr uction of

2872the language, and is hereby accepted.

287830. As a part of its application, AHG submitted a

2888narrative justifying the granting of a deviation under each of

2898the seven criteria. To satisfy the first disputed criterion,

2907AHG indicated in its application that "[t]his deviation is the

2917minimum allowed to make reasonable use of the property and to

2928compete with adjacent hotels who enjoy the same height

2937opportunity."

293831. AHG's use of the property is consistent with

2947adjoining developments, including the neig hboring Cabot Lodge,

2955which is five stories high and has 135 rooms, and the Hilton

2967Garden Inn, which was originally vested for an office

2976building, but was allowed by the DRC to construct a four - story

2989hotel.

299032. There is no other property available to AHG at this

3001site on which to construct a hotel. The evidence shows that

3012New Horizons initially offered to sell AHG only 2.05 acres;

3022when AHG advised that anything less than 2.23 acres would

3032render the project financially unfeasible, New Horizons "very

3040reluct antly" agreed to sell an additional .18 acres. Because

3050New Horizons intends to build a restaurant on its remaining

30602.097 acres, any further reduction in the acreage would reduce

3070its highest and best use of the property. Thus, AHG does not

3082have the option of purchasing more property to expand its

3092hotel laterally, as Petitioner suggests, rather than by adding

3101a fifth floor.

310433. In addition, AHG does not have the ability to reduce

3115the size of its hotel rooms in order to squeeze more rooms out

3128of a four - st ory structure. This is because Hampton Inn (the

3141franchisor) will not grant a franchise for a new hotel unless

3152the franchisee agrees to build a hotel with prototypical room

3162sizes. The present design of the hotel meets the minimum size

3173required.

317434. The re is no evidence that there is any other minimum

3186deviation that could be granted which would make possible the

3196use of the property for construction of 122 rooms under the

3207standards set forth by Hampton Inn, the franchisor. Thus, the

3217only practical adjust ment that can be made is to obtain a

3229height deviation. Accordingly, the criterion has been

3236satisfied.

323735. To satisfy the second disputed criterion, AHG stated

3246in its narrative that "[t]he strict application of this

3255requirement would place this property a nd proposed hotel at a

3266competitive disadvantage by a lower number of available

3274rooms."

327536. Through testimony of an AHG principal, it was

3284established that in order for AHG to make reasonable use of

3295its property, the addition of a fifth floor is necessary . The

3307evidence shows that as a general rule, a developer can only

3318afford to pay approximately $10,000.00 per room for land cost.

3329In this case, based on the 2.23 acres, at a purchase price of

3342$1,500,000.00 and a hotel with 122 rooms, the projected land

3354co st is $12,000.00 per room. This is the maximum that can be

3368paid for land and still make AHG's project economically

3377feasible. The strict application of the Zoning Code will make

3387the project financially unfeasible, which will create a

3395substantial hardship to AHG. The hardship is not self - created

3406or imposed.

340837. At hearing, Petitioner's representative contended

3414that "there are some companies who would find it financially

3424feasible" to construct a four - story hotel with fewer rooms on

3436the same site. Howeve r, the more persuasive evidence on this

3447issue was presented by the AHG principal and shows the

3457contrary to be true.

346138. The evidence further shows that the granting of the

3471deviation will result in an almost equal efficiency factor of

3481the total square fo otage of building versus the total square

3492footage of the site when comparing AHG's proposed project to

3502the neighboring Cabot Lodge. On the other hand, strict

3511application of the Zoning Code could result in a substantially

3521less and disproportionate efficien cy factor of AHG's property

3530as compared to the adjoining Cabot Lodge. This is because the

3541highest point of the proposed Hampton Inn and Suites is 58

3552feet, 6 inches, with the majority of the hotel being 51 feet

3564high. The adjoining five - story, 135 - room Cab ot Lodge has its

3578highest point at 55 feet, 6 inches, with the majority of the

3590building at 46 feet high. The Hilton Garden Inn has the

3601highest roof with its maximum height at 59 feet, 6 inches,

3612which runs across the entire peak of the roofline.

362140. To s atisfy the final disputed criterion, AHG

3630indicated in its application that "[t]he absence of any

3639environmental features on this property, or any adjacent

3647environmental features that might be impacted[,] help support

3656the deviation."

365842. As noted above, t he property in question is unique

3669in the sense that it is flat, treeless, and has no remarkable

3681environmental features. If a site is devoid of environmental

3690features, as it is here, the DRC has consistently interpreted

3700this provision as having no applicat ion in the deviation

3710process. This is the same interpretation used by the DRC when

3721it approved Petitioner's application for a height deviation in

37301996 to construct the Hilton Garden Inn. Like AHG's property,

3740Petitioner's property was also devoid of envir onmental

3748features. Therefore, this criterion does not apply.

375543. Even assuming arguendo that this provision applies,

3763the addition of a fifth story to a four - story building has no

3777impact whatsoever on the environmental characteristics of the

3785site.

378644. Finally, there is no evidence that the deviation

3795request is inconsistent with the Plan, or that the deviation

3805will have any adverse impact to the general health, safety,

3815and welfare of the public. Indeed, as to any Plan

3825implications that might arise throu gh the construction of a

3835hotel, the evidence shows that the project is wholly

3844consistent with the purpose and intent of the CP land use

3855category, which is to promote higher intensity and density in

3865CP - zoned land and to discourage urban sprawl.

3874CONCLUSIONS OF LAW

387745. The Division of Administrative Hearings has

3884jurisdiction over the subject matter and the parties hereto

3893pursuant to Article XXIV, Sections 24.1 et. seq. , Tallahassee

3902Code of Ordinances.

390546. Section 24.3.C. provides in part that a decision of

3915t he DRC

3918become[s] final fifteen (15) calendar days

3924after [it is] rendered unless a party files

3932a notice of intent to file a petition for

3941formal proceedings in accordance with the

3947bylaws and completes the application by

3953filing a petition for formal proceedi ngs

3960within thirty (30) calendar days after the

3967decision is rendered.

397047. Here, a Petition for Formal Proceedings was timely

3979filed by Petitioner. Once a standing determination is made,

3988as it was here, Section 24.3.C. provides that the Commission

3998shall "conduct [ de novo ] quasi - judicial proceedings in

4009accordance with section 24.6 below." Therefore, a decision on

4018whether the application should be approved should not be based

4028solely on the evidence considered by the DRC on September 11,

40392002, as Petitioner implicitly suggests, but rather it must be

4049based on all evidence presented at the de novo hearing.

405948. Among other things, Section 24.6.B. authorizes the

4067Commission to "contract with the Division of Administrative

4075Hearings for [administrative law judge s] to conduct hearings

4084on petitions for formal proceedings filed pursuant to

4092subsection 24.3.C. above." In this case, the Commission has

4101opted to refer the matter to the Division of Administrative

4111Hearings.

411249. While Section 24.6. fails to address the bu rden of

4123proof in a Commission site plan proceeding, Section 23.3 does

4133provide that the "applicant shall have the burden of

4142demonstrating through a preponderance of the evidence that all

4151conditions necessary to granting the deviation have been met."

4160This i s consistent with the general rule that the party

4171seeking the affirmative of the issue should logically bear the

4181burden of proving by a preponderance of the evidence that it

4192is entitled to the requested relief. See , e.g. , Durward

4201Neighborhood Assoc., Inc. et al. v. City of Tallahassee et

4211al. , DOAH Case No. 98 - 4234 (City of Tall. - Leon Cty Plan.

4225Comm., October 5, 1999). Thus, AHG is required to present a

4236prima facie case of entitlement to a deviation, taking into

4246account the objections raised by Petitioner.

425250. Article XXIII of the Code (Sections 23.1, 23.2, and

426223.3) governs the process for obtaining a deviation to

4271development standards. Relevant to this controversy are the

4279following provisions of Section 23.3 of the Code:

4287The granting of deviations from the

4293development standards in this chapter is

4299not favored and such requests may only be

4307granted upon a showing that all criteria

4314set forth below have been met. The

4321applicant shall have the burden of

4327demonstrating through a preponderance of

4332the evidence tha t all conditions necessary

4339to granting the deviation have been met.

4346The entity with the authority to approve,

4353approve with conditions, or deny a

4359subdivision or site plan shall grant a

4366deviation under this section only upon

4372demonstration that:

4374* * *

4377(iii) The deviation requested is the

4383minimum deviation that will make possible

4389the reasonable use of the land, building,

4396or structure; and

4399(iv) The strict application of the

4405requirements of this chapter will

4410constitute a substantial hardship to the

4416ap plicant, which hardship is not self -

4424created or imposed, and

4428(v) There are exceptional topographic,

4433soil, or other environmental conditions

4438unique to the property;

4442* * *

444551. In addition, Section 23.1 provides in part that a

4455deviation "shall be g ranted only upon demonstration and a

4465finding of consistency with the Comprehensive Plan and no

4474adverse impact to the general health, safety, and welfare of

4484the public."

448652. The preponderance of the evidence supports a

4494conclusion that AHG has satisfied all criteria for a

4503deviation, and that the deviation is consistent with the

4512Comprehensive Plan and will not adversely impact the general

4521health, safety, and welfare of the public. This being so,

4531AHG's applications for a Type B site plan and a height

4542deviation should be approved.

4546RECOMMENDATION

4547Based on the foregoing Findings of Fact and Conclusions

4556of Law, it is

4560RECOMMENDED that the Tallahassee - Leon County Planning

4568Commission enter a final order granting AHG's Type B site plan

4579review application and its application for a deviation from

4588the height restriction for the CP land use category.

4597DONE AND ENTERED this 22nd day of January, 2003, in

4607Tallahassee, Leon County, Florida.

4611___________________________________

4612DONALD R. ALEXANDER

4615Administrative Law Judge

4618Division of Administrative Hearings

4622The DeSoto Building

46251230 Apalachee Parkway

4628Tallahassee, Florida 32399 - 3060

4633(850) 488 - 9675 SUNCOM 278 - 9675

4641Fax Filing (850) 921 - 6847

4647www.doah.state.fl.us

4648Filed with the Clerk of the

4654Division of Administrative Hearings

4658this 22nd day of January, 2003.

4664COPIES FURNISHED:

4666Charles R. Gardner, Esquire

4670Gardner, Wadsworth, Shelfer,

4673Duggar & Bist, P.A.

46771300 Thomaswood Drive

4680Tallaha ssee, Florida 32308 - 7914

4686Linda R. Hurst, Esquire

4690City Hall, Second Floor

4694300 South Adams Street

4698Tallahassee, Florida 32301 - 1731

4703John Marshall Conrad, Esquire

4707Ausley & McMullen

4710Post Office Box 391

4714Tallahassee, Florida 32302 - 0391

4719Jean Gregory, Clerk

4722Tallahassee - Leon County Planning Commission

4728City Hall

4730300 South Adams Street

4734Tallahassee, Florida 32301 - 1731

4739NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4745All parties have the right to submit written exceptions within

475510 days from the date of this Recommended Order. Any

4765exceptions to this Recommended Order should be filed with the

4775agency that will issue the final order in this matter.

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Date
Proceedings
PDF:
Date: 01/30/2003
Proceedings: Respondents` Notice of No Exceptions (filed via facsimile).
PDF:
Date: 01/22/2003
Proceedings: Recommended Order
PDF:
Date: 01/22/2003
Proceedings: Recommended Order issued (hearing held December 10, 2002) CASE CLOSED.
PDF:
Date: 01/22/2003
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 01/14/2003
Proceedings: (Proposed) Recommended Order filed by Petitioner.
PDF:
Date: 01/13/2003
Proceedings: Joint Proposed Recommended Order by City of Tallahassee and AHG Hotels, LLC filed.
PDF:
Date: 01/02/2003
Proceedings: Order issued. (the parties agreed motion to set day certain for filing proposed recommended order is granted, and the parties shall have until January 13, 2003, in which to make their filings)
PDF:
Date: 12/30/2002
Proceedings: Motion to Set Day Certain For Filing Proposed Recommended Order filed by J. Conrad.
Date: 12/27/2002
Proceedings: Transcript filed.
Date: 12/10/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 12/06/2002
Proceedings: (Joint) Prehearing Stipulation (filed via facsimile).
PDF:
Date: 11/22/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 11/22/2002
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for December 10, 2002; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 11/18/2002
Proceedings: Letter to Judge Alexander from J. Conrad requesting rescheduling of hearing date filed.
PDF:
Date: 11/14/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 11/14/2002
Proceedings: Notice of Hearing issued (hearing set for December 4, 2002; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 11/12/2002
Proceedings: Joint Response to Scheduling Order (filed by Respondent via facsimile).
PDF:
Date: 11/04/2002
Proceedings: Order issued. (the parties shall confer and advise the undersigned within 7 days from the date of this order whether they wish to have the hearing conducted no later than December 10, 2002, of whether they will "stipulate in writing to later hearing date")
PDF:
Date: 10/31/2002
Proceedings: Motion for Entry of a Procedural Order filed by Petitioner.
PDF:
Date: 10/31/2002
Proceedings: Notice of Appearance (filed by J. Conrad).
PDF:
Date: 10/24/2002
Proceedings: Tallahassee-Leon County Planning Commission Determination of Standing filed.
PDF:
Date: 10/24/2002
Proceedings: Petition for Formal Proceedings filed.
PDF:
Date: 10/24/2002
Proceedings: Agency referral filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
10/24/2002
Date Assignment:
10/31/2002
Last Docket Entry:
01/30/2003
Location:
Tallahassee, Florida
District:
Northern
Agency:
Contract Hearings
 

Counsels