04-001840 Maye R. Walker vs. Tallahassee-Leon County Planning Department And School Of Arts And Sciences Status: Closed Recommended Order on Thursday, October 21, 2004.

Summary: The site plan for an addition to an existing school met the criteria for approval.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAYE WALKER, )

)

Petitioner, )

)

vs. ) Case No. 04-1840

)

CITY OF TALLAHASSEE and SCHOOL )

OF ARTS AND SCIENCES FOUNDATION, )

INC., )

)

Respondents. )

_________________________________ )

RECOMMENDED ORDER

On August 30, September 3, and September 8, 2004, a hearing

was held in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings, acting as the hearing officer in a formal proceeding

under Chapter 2, Article III, Division 2, Subdivision II, of the

Tallahassee Land Development Code (LDC)(2003).

APPEARANCES

For Petitioner Maye Walker:

Maye Walker, pro se

1305 Covington Drive

Tallahassee, Florida 32312-2504

For Respondent City of Tallahassee:

Linda R. Hurst, Esquire

Office of the City Attorney

City of Tallahassee

City Hall

300 South Adams Street

Tallahassee, Florida 32301-1731

For Respondent School of Arts and Sciences Foundation, Inc.:

Cari L. Roth, Esquire

201 South Monroe Street, Suite 500

Tallahassee, Florida 32301

Wellington H. Meffert, II, Esquire

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

STATEMENT OF 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.

PRELIMINARY STATEMENT

On August 9, 2002, SAS filed an application with the City of

Tallahassee for approval of a site plan for a 1,043 square-foot

addition to a building on its campus at 3208 Thomasville Road,

Tallahassee, Florida. (The building is to have two floors, so

the additional floor area was twice the square-footage of the

building, actually 2,238 square feet. 1 ) The City's staff

processed and reviewed the site plan application as a Type B site

plan. 2

On January 27, 2003, the City's Development Review Committee

(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 was approved by the DRC,

with conditions, on March 23, 2004. 3

On April 21, 2004, Maye Walker and the Leewood Hills

Neighborhood Association filed a Petition for Quasi-Judicial

Proceedings (Petition) with the Planning Commission. The

Planning Commission's Attorney made a Determination of Standing

that the Petition's allegations as to standing were insufficient,

and an Amended Petition was filed adding standing allegations.

On May 11, 2004, a Second Determination of Standing was issued

finding standing as to Maye Walker but no standing as to the

Leewood Hills Neighborhood Association.

On May 21, 2004, the City referred the matter to the

Division of Administrative Hearings (DOAH) for assignment to a

DOAH Administrative Law Judge (ALJ) to act as the hearing officer

in a formal quasi-judicial proceeding. A hearing was scheduled

for August 30, 2004. As ordered by the ALJ, a Pre-Hearing

Stipulation was filed on August 20, 2004. In addition, SAS filed

a Motion to Strike and Motion in Limine on August 24, 2004.

Those motions were heard by telephone, and an Order was entered

on August 27, 2004, which further narrowed the issues.

Based on the Amended Petition, Pre-Hearing Stipulation, and

Order entered on August 27, 2004, the following issues were to be

heard at the hearing in this case: whether Petitioner has

standing; whether the revised site plan, with the DRC's

conditions, will increase traffic and noise in the neighboring

residential area; and whether the revised site plan, with the

DRC's conditions, is compatible with neighboring residential

properties and in compliance with land use plan and zoning

provisions in light of any increased noise, traffic, and other

resulting impacts (as opposed to impacts from existing conditions

and operations), but not considering impacts from misbehavior of

students or temporary noise and traffic impacts from construction

of the addition (which were ruled not relevant to a site plan

review).

As required by Section 2-138(g)(3), LDC, the hearing was

duly noticed on August 15, 2004, in the Tallahassee Democrat .

During the hearing, the order of presentation set out in Section

2-138(g)(7), LDC, generally was followed, with some exceptions

due to availability of witnesses and other considerations.

There were four public witnesses: Sally R. Johnson;

Kathy Berger; Tyson Waters; and Dino Kaklamanos. One Public

Exhibit also was received.

SAS called four witnesses: James M. Croteau, Ph.D., Acting

Assistant Superintendent for Business Services and Executive

Director for Planning and Policies for Leon County Public

Schools, who was accepted as an expert in school planning;

Debo Powers, Principal of the School of Arts and Sciences;

Rick Moore, P.E., who was accepted as an expert in engineering,

permitting, and planning; and Jane Wofford, Assistant Principal

and Finance Officer of the School of Arts and Sciences. SAS also

had its Exhibits a, c through g and j admitted in evidence. (SAS

Exhibit b, which was part of City Exhibit 6, was identified but

not moved into evidence.)

The City called four witnesses: Allen Secreast, P.E.,

Assistant City Traffic Engineer, who was accepted as an expert in

traffic engineering; Dwight R. (Roy) Arnold, Jr., the City's Land

Use and Environmental Services Administrator; David "Wayne"

Tedder, AICP, Director of the Tallahassee-Leon County Planning

Department, who was accepted as an expert in urban planning; and

Wade L. Pitt, III, Land Use Administrator in the City's Growth

Management Department. The City also had its Exhibits 1 through

7 and 9 through 16 admitted in evidence.

Petitioner testified and called five witnesses: Ava Ruth

(spelled Aberuth in the Transcript) Johnson; Patricia Johns;

Keely Waters-Kaklamanos; Joseph Phillip Shook, Senior Planner in

the City's Growth Management Department; and Gordon Hansen

(spelled Hanson in the Transcript), also a Senior Planner in the

City's Growth Management Department. Petitioner identified

several exhibits during the course of her presentation without

offering them into evidence, including Petitioner's Exhibits E, G

(which also was part of City Exhibit 6), J, K, and DD.

Petitioner's Exhibits A, P, V, and W were offered and admitted

into evidence. Objections to Petitioner's Exhibit N were

sustained. Rulings on objections to Petitioner's Exhibits D, M,

S, AA, BB, and CC were reserved.

Respondents objected on grounds of relevance to Petitioner's

proffered exhibits D, AA, BB, and CC, all of which regard a 1992

site plan application in which Epiphany Lutheran Church sought to

build an addition to its Day School. In the Order dated

August 27, 2004, it was ruled that "because Petitioner asserts

that the 1992 application (which was denied because it was

incompatible with the neighborhood) is almost identical to the

application filed here, she may make inquiry on that subject."

But those documents established that the 1992 application was

more different than it was similar to the SAS application at

issue here. (Specifically, while not indicating the student

census at the time, the documents indicated that the addition

proposed by Epiphany Lutheran in 1992 was expected to increase

classroom space by 25% and add 35 car trips to and from the

school each morning and afternoon, approximately a 30% increase.)

At this time, the objections are sustained, and those exhibits

are excluded from evidence.

Respondents also objected to admission of Petitioner's

Exhibit M, which consisted of a series of e-mails documenting

Petitioner's attempts to acquire a copy of the original permit

for the driveway cut which gave access from the subject property

to Cabot Drive. These documents are irrelevant because

Petitioner did not raise or preserve any issue as to the legality

of the existing driveway access, or the need for a driveway

permit as part of the SAS site plan at issue. At this time, the

objections are sustained, and the exhibit is excluded from

evidence.

Respondents also objected to admission of Petitioner's

Exhibit S, which consisted of a series of e-mails between the

City's Counsel and Counsel for SAS, which Petitioner proffered as

proof of bias on the part of the City in this proceeding. At

this time, the objections are overruled, and the exhibit is

admitted in evidence.

After presentation of evidence, the Respondents requested a

transcript of the final hearing and 15 days from the filing of

the transcript to file proposed recommended orders (PROs), which

was granted. The Transcript was filed (in four volumes) on

September 20, 2004, making PROs due October 5, 2004. The

Respondents timely-filed PROs, which have been considered.

Petitioner did not file a PRO.

FINDINGS OF FACT

A. Petitioner and Leewood Neighborhood

1. 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.

B. School of Arts and Sciences

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.)

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

C. SAS's First Addition Proposal

13. 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

14. 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.

15. 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.

16. 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

17. 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.

D. SAS's Second Addition Proposal (at Issue)

18. 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.

19. 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.

20. 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.

21. 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.

22. 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).

23. 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.

E. School Siting Provisions Inapplicable

24. 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.

25. 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.

Faffic and Noise Impacts of Proposal at Issue

26. 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).

27. 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.

28. 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.

29. 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.

G. Visual Impacts and Buffers

30. 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.

31. 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).

32. 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.

33. 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.

CONCLUSIONS OF LAW

H. Jurisdiction

34. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. §§ 2-133(a), 2-138, and 9-155(9)i., LDC; and

§ 120.65(7), Fla. Stat. (2003).

I. Nature of Proceedings

35. Section 9-155(9)i., LDC, provides in part that a

decision of the DRC on a Type B site plan becomes final 30

calendar days after it is rendered unless a party files a

petition for formal proceedings in accordance with the LDC and

Planning Commission bylaws. Under Section 2-135(a), LDC, when a

petition is filed, formal proceedings on the petition are de

novo . Therefore, a decision on whether the application at issue

should be approved should be based on all evidence presented at

the de novo hearing, not solely on the information considered by

the DRC.

J. Burden of Proof

36. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in a proceeding before the Division of Administrative

Hearings. Antel v. Department of Professional Regulation , 522

So. 2d 1056 (Fla. 5th DCA 1988); Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino

v. Department of Health and Rehabilitative Services , 348 So. 2d

249 (Fla. 1st DCA 1977).

37. In this proceeding, Petitioner is asserting the

affirmative on the issue of her standing. In addition, while

Section 2-137, LDC, provides that the Planning Commission's

Attorney determines standing, it also states:

The determination of standing is only a

preliminary determination that the petitioner

has alleged sufficient facts in the petition

to establish standing. A petitioner will

still be required to prove standing in the

formal evidentiary hearing to be conducted in

the matter, unless waived by the parties.

For these reasons, Petitioner bears the burden of proof as to her

standing.

38. On the main issue (whether the City should approve

SAS's site plan application), SAS is asserting the affirmative

(that it should be approved). In addition, Section 5, Article

IX, Planning Commission Bylaws, states:

In de novo quasi-judicial proceedings, the

initial burden of proof shall be on the

applicant. Once the applicant establishes

his or her entitlement to approval by

submittal of competent, substantial evidence

supporting the approval (referred to by the

courts of this state as a "prima facie

case"), the burden of proof will shift to the

petitioner(s) to rebut the evidence submitted

by the applicant. The decision under appeal

will be treated as a staff report.

K. Standing

39. Standing to participate in this proceeding is governed

by Section 2-134, LDC. Standing is recognized for the

"applicant," the "local government," and for:

any persons who will suffer an adverse effect

to an interest protected or furthered by the

comprehensive plan, including interests

related to health and safety, police and fire

protection service systems, densities or

intensities of development, transportation

facilities, health care facilities, equipment

or service, or environmental or natural

resources. The alleged adverse effects to an

interest may be shared in common with other

members of the community at large, but shall

exceed in degree the general interest in

community good shared by all persons.

40. Petitioner proved that she has an interest in this

matter that exceeds in degree the general interest in community

good shared by all persons. As a resident on Covington Drive of

the Leewood neighborhood adjacent to SAS, Petitioner has an

interest in ensuring that any development of SAS's property is

consistent with applicable development requirements and

compatible with her neighborhood. See Allapattah Community

Association, Inc. v. City of Miami , 379 So. 2d 387, 392 (Fla. 3d

DCA 1980).

L. Applicable Review Criteria

41. Section 9-153, LDC, provides:

In deciding whether to approve, approve with

conditions, or deny a site plan, the entity

with authority to render such decision shall

determine:

(1) Whether the applicable zoning

standards and requirements have

been met.

(2) Whether the applicable

criteria of chapter 5 of this Code

have been met.

(3) Whether the requirements of

other applicable regulations or

ordinances which impose specific

requirements on site plans and

development have been met.

Chapter 5 of the LDC relates to environmental requirements, which

are not at issue in this proceeding. At issue in this proceeding

are provisions relating to the compatibility of the proposed site

plan with the neighboring residential area.

42. SAS presented a more-than-adequate prima facie showing

of entitlement to approval of its site plan application, taking

into account the objections raised by Petitioner. See Snyder v.

Board of County Commissioners of Brevard County , 595 So. 2d 65

(Fla. 5th DCA 1991), aff'd , 627 So. 2d 469 (Fla. 1993). The

burden then shifted to Petitioner to prove the allegations of her

petitions. Id. The evidence presented by Petitioner in support

of her petition was required to be of at least equivalent quality

to the evidence presented by SAS. See Hoffert v. St. Joe Paper

Company , 12 F.A.L.R. 4972 (Fla. Dept. of Env. Reg. 1990). Except

for the need for a building height limitation and for monitoring

student enrollment, Petitioner failed to meet her burden.

43. It is clear that, for several reasons, the site plan

could not be approved if it provided for the initial

establishment of a school on the property. First, such a site

plan would require a special exception under today's code. Under

Section 10-170(b)(4), LDC, community services such as schools are

an allowable use in a residential preservation zone; under

Section 10-241(1), LDC, they are allowed there by special

exception. Special exception procedures have not been followed

in this case. Second, under the Development Standards Schedule

found in Section 10-178, a PUD approval would be required. PUD

procedures have not been followed in this case. Third, current

school siting provisions would apply, and SAS's property would

not meet all of those requirements if it were being sited for the

first time, including requirements for street access. (An

initial street access from the property to Cabot Drive would

require a separate permit under Section 8-31.) But all of these

requirements would apply to new development, not to a preexisting

school and driveway access.

44. For a preexisting school, the issue is whether the site

plan under review would expand or intensify the preexisting use

so as to make the school less compatible than before. In this

case, the preexisting use was for a school with a student

enrollment of approximately 225 students (the approximate student

enrollment at the start of the 2002/2003 school year). If

conditioned on an enrollment cap of 225, the site plan

application at issue would not expand or intensify the

preexisting use in terms of traffic or noise impacts. However,

for monitoring and enforcement purposes, an additional condition

should require SAS to report to the appropriate City code

enforcement officials if SAS's student enrollment ever exceeds

the 225 cap.

45. As for visual impacts, there should not be any adverse

impacts so long as the roofline of the proposed addition matches

the existing building, which also should be a condition of

approval.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of October, 2004.

ENDNOTES

1/ This was the second site plan application filed by SAS for

the addition. The first time SAS filed, City staff initially

indicated that its application would be denied because it was

inconsistent with the City's Comprehensive Plan provisions for

school siting. After discussions, the City's staff agreed that

those provisions did not apply to SAS since it operated an

existing school. Nonetheless, the City required SAS to re-file

its application.

2/ As part of the review, the City's staff also considered two

applications for deviations from development standards: one, to

allow fewer bicycle parking spaces; and a second, to construct an

eight-foot high wood fence along a portion of SAS's southern

boundary in lieu of some required vegetation buffer. Neither of

these applications is at issue in this proceeding.

3/ The DRC denied the applications for development standard

deviations, but members of its Parking Standards Committee

approved the reduction in bicycle parking spaces. While denying

the elimination of the required vegetation buffer, the DRC

allowed the vegetation buffer to be moved further east to be

added to the vegetation buffer already required there along SAS's

southern property line. As previously indicated, neither of

these actions is at issue in this proceeding.

4/ There was no direct evidence of this application, but the

evidence suggested that it was very similar if not identical to

the subsequent application, which is at issue in this case, at

least as to the dimensions of the proposed addition.

5/ Handicapped ramping also has been added to improve access to

the school grounds.

COPIES FURNISHED:

Maye Walker

1305 Covington Drive

Tallahassee, Florida 32312-2504

Linda R. Hurst, Esquire

Office of the City Attorney

City of Tallahassee

City Hall

300 South Adams Street

Tallahassee, Florida 32301-1731

Cari L. Roth, Esquire

201 South Monroe Street, Suite 500

Tallahassee, Florida 32301

Wellington H. Meffert, II, Esquire

227 North Bronough Street, Suite 5000

Tallahassee, Florida 32301

Cherie Bryant, Clerk

Tallahassee-Leon County Planning Commission

City Hall

300 South Adams Street

Tallahassee, Florida 32301-1731

NOTICE OF RIGHT TO SUBMIT OBJECTIONS

All parties have the right to submit specific written objections

to the Recommended Order within 10 days from the date this

Recommended Order is served. Any objections to this Recommended

Order should be filed with the Clerk of the Planning Commission.

All objections must include appropriate references to the record

in this matter.