04-003918 Boardwalk At Appleyard, Llc vs. Tallahassee-Leon County Planning Department Status: Closed Recommended Order on Tuesday, January 18, 2005.

Summary: The applicant proved that the proposed site plan deviations for a 312-unit multi-family complex located north of West Tennessee Street should be approved, with conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARDWALK AT APPLEYARD, LLC, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3918

)

CITY OF TALLAHASSEE and WOOD )

PARTNERS, )

)

Respondents, )

)

and )

)

LEONI, LLC, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on

December 16 - 17, 2004, in Tallahassee, Florida, before Charles A.

Stampelos, the assigned Administrative Law Judge of the Division

of Administrative Hear ings.

APPEARANCES

For Petitioner: Robert A. Lash, Esquire

Moody & Salzman, P.A.

Post Office Drawer 2759

Gainesville, Florida 32602

For Respondent City of Tallahassee:

Linda R. Hurst, Esquire

Office of the City Attorney

City Hall, Box A - 5

300 South Adams Street

Tallahassee, Florida 32301 - 1731

For Respondent Wo od Partners and Intervenor Leoni, LLC:

Silvia Morell Alderman, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Wood Partners' application for a Type

B site plan (TSP040060) and deviations should be approved in

light of the Joint Post - Hearing Stipulation of issues remaining

for consideration.

PRELIMINARY STATEMENT

This matter began on September 13, 2004, when the

Development Review Committee (DRC) of Respondent, City of

Tallahassee (City), approved a Type B site plan requested by

Respondent, Wood Partners. Wood Partners proposes to construct

a 312 - unit multi - family complex on a 20.01 - acre site located

north of West Tennessee Street, approximately 1,200 feet east of

Appleyard Drive. The DRC also approved two deviations from the

City of Tallahassee Land Development Code (LDC) in order to

reduce the rear building set back from 2 5 feet to 15 feet on the

northern boundary line, and to reduce the 30 - foot Type D buffer

requirement to a 15 - foot Type B buffer on north property line.

The DRC action approved both deviations and the site plan, with

conditions.

On October 12, 2004, Peti tioner, Boardwalk at Appleyard,

LLC (Boardwalk), filed a Petition for Formal Proceedings with

the Tallahassee - Leon County Planning Commission (Planning

Commission) challenging the DRC's decision. 1

On or about October 18, 2004, Intervenor, Leoni, LLC,

(Le oni), filed a Petition for Formal Proceedings with the

Planning Commission and alleged that it was the owner of the

property subject to the site plan application approved by the

DRC. In the alternative, Leoni asked to intervene in the

proceeding. On Octo ber 25, 2004, the Planning Commission's

attorney determined that the allegations in Leoni's petition did

not allege sufficient facts to establish entitlement to a quasi -

judicial proceeding. However, there was no ruling on Leoni's

request for recognition a s an intervenor.

Pursuant the Planning Commission's By - Laws, on October 29,

2004, the Planning Commission Clerk referred the matter to the

Division of Administrative Hearings (DOAH) requesting the

assignment of an administrative law judge to conduct a he aring

pursuant to Section 2 - 138, LDC.

The matter was scheduled for a hearing on December 13,

2004, in Tallahassee, Florida.

After a telephone hearing held on November 18, 2004, it was

determined that the City was a proper party respondent rather

than the Planning Commission and the City was substituted as a

party Respondent. It was also determined that Leoni may appear

as an intervenor subject to proof of standing.

On November 24, 2004, Wood Partners requested that

Boardwalk file a more definite statem ent with respect to

provisions of the LCD, which Boardwalk contended required

reversal or modification of the DRC's determination.

On November 30, 2004, Boardwalk filed a motion to continue

the hearing scheduled for December 13, 2004. Wood Partners and

Leoni opposed a continuance.

After a telephone hearing on December 1, 2004, Wood

Partners' motion for more definite statement was granted, as was

their motion to reduce the time for Boardwalk to respond to Wood

Partners' first request to produce document s. Also, the hearing

was continued to commence on December 16, 2004.

On December 7, 2004, Boardwalk filed a response to the more

definite statement. On December 9, 2004, Wood Partners filed a

motion to strike portions of Boardwalk's more definite

state ment.

A telephone hearing was held on December 14, 2004, to

consider Wood Partners' motion to strike, which was ultimately

denied, subject to several agreements of the parties regarding

the scope of the more definite statement. Furthermore, ruling

was d eferred on Wood Partners' motion to strike Boardwalk's

allegations with respect to traffic - related issues. (During the

hearing, Boardwalk withdrew its challenge based on traffic -

related issues.)

On December 14, 2004, the City, Wood Partners, and Leoni

f iled a document entitled Pre - Hearing Stipulation. On the same

date, Boardwalk also filed a document entitled Pre - Hearing

Stipulation. Neither was actually a stipulation. During the

telephone hearing held on December 14, 2004, the parties were

requested to file an amended pre - hearing stipulation and the

parties did so on December 15, 2004. The Amended Pre - Hearing

Stipulation replaced the unilateral pre - hearing statements

previously filed, and the hearing was conducted pursuant to the

Amended Pre - Hearing Stipulation.

During the hearing, Wood Partners presented the testimony

of Clay Campbell, P.E., and also called Mr. Campbell as a

rebuttal witness. Leoni presented the testimony of Russell Dean

Minardi as a standing witness. Wood Partners and Leoni's

Ex hibit 1, the deposition of John Frith, P.E., was admitted into

evidence, for the limited purpose of establishing the scope of

Mr. Frith's expert opinions. Wood Partners and Leoni adopted

the City’s case, and Leoni adopted Wood Partners’ case.

The City o ffered the testimony of Dwight R. Arnold, Jr.,

Cherie Bryant, Thomas Printy, and Craig Barkve, P.E. The City's

Exhibits 1 - 8 were admitted into evidence. After the hearing,

the City filed an executed copy of the Recommended Order in

Capital City Hotels, I nc. v. City of Tallahassee and AHG Hotels,

LLC , Case No. 02 - 4237 (DOAH January 22, 2003), admitted into

evidence as the City’s Exhibit 3, and requested permission to

substitute the executed copy. Without objection, the executed

copy of the Recommended Ord er is admitted into evidence (City

Exhibit 3) in lieu of the unexecuted copy.

Boardwalk offered the testimony of Mr. Frith, and recalled

Mr. Arnold as a witness. Boardwalk had several exhibits

admitted into evidence, which were later withdrawn.

The p arties stipulated to the admissibility of Joint

Exhibits (JE) 1 - 11, including subparts, e.g. , (JE 8F1), which

were admitted into evidence without objection. These exhibits

appear in Volumes one through three.

The three - volume Transcript (T) of the heari ng was filed

with DOAH on December 21, 2004.

On December 27, 2004, the parties filed a Joint Post -

Hearing Stipulation, narrowing the issues to be decided in this

proceeding. Boardwalk dismissed its objections to several

issues such as traffic concurrenc y and distribution; road

widths, parking space dimensions and turnarounds; water and

sewer concurrency; applicability and satisfaction of flood

hazard requirements, preliminary plat requirements, and the

requirements of Sections 5 - 10 and 5 - 11 of the LDC; a nd

stormwater concurrency. Boardwalk’s remaining objections are:

1. The placement of a stormwater inlet under

the trash compactor and related issues

resulting from overflow of the stormwater

pond on to Boardwalk’s property.

2. The approval of deviations to bui lding

setbacks and buffer standards.

3. Due Process.

4. Whether the site plan could have been

altered so as to avoid the need for

setback and buffer deviations.

On January 5, 2005, the Respondents and Intervenor filed a

joint motion to strike portions of Boar dwalk’s Proposed

Recommended Order pertaining to references to Sections 5 - 10 and

5 - 11, LDC, in relation to issues raised regarding the placement

of the stormwater inlet under the trash compactor. A telephone

hearing was held on January 7, 2005, and Respon dents and

Intervenor, without opposition, were allowed to file

supplemental proposed findings of fact and conclusions of law

regarding these issues.

Each party filed a Proposed Recommended Order, which has

been considered in the preparation of this Recom mended Order.

Boardwalk included a memorandum of law within its Proposed

Recommended Order. Wood Partners and Leoni filed a Memorandum

of Law, which was adopted by the City, which has also been

considered. Wood Partners, Leoni, and the City filed a

Supp lemental Proposed Recommended Order, which has also been

considered.

FINDINGS OF FACT

Parties

1. Petitioner, Boardwalk at Appleyard, LLP, is the owner

and operator of a multi - family housing project on the property

immediately east and adjacent to the propos ed Alta Seminole

project.

2. Respondent, City of Tallahassee, is a municipal

corporation organized under the laws of the State of Florida.

The City is the entity with authority to approve site plans

within the City limits. The City conditionally approved t he

site plan for the Alta Seminole project through the action of

the DRC. The City is a party by definition. See § 1 - 2, LDC;

Art. IX, § 1(g) Tallahassee - Leon County Planning Commission

Bylaws (Bylaws).

3. Respondent, Wood Partners, is the applicant for the Alta

Seminole project site plan. The applicant is a party by

definition. Id. Wood Partners has a contract to buy the Alta

Seminole site, which is the subject of this proceeding.

4. Intervenor, Leoni, is the current owner of the property,

which is the subj ect of this proceeding.

The Alta Seminole Project Site and Adjacent Area

5. Wood Partners submitted a Type B site plan application

to construct a 312 - unit multi - family complex on a 20.01 acre

site located north of West Tennessee Street, approximately 1,200

feet east of Appleyard Drive (project site). The proposed

project is a student housing complex, consisting of 11

buildings, i.e. , nine apartment buildings, one leasing office,

and one maintenance building. The project will offer 876

bedrooms and 935 park ing spaces, including handicapped spaces.

The density of the project is 15.6 units per acre.

6. The project site was recently used as a mobile home

park. As such, the proposed project is a redevelopment.

7. The current zoning for the project site is MR - 1, me dium

density residential, which allows the land use proposed in the

site plan application.

8. To the north of the project site, from its east property

line to 300 to 400 feet west are single - family homes currently

used as student rental properties, now zon ed MR - 1. A railroad

right - of - way was abandoned in the area between the single - family

homes and the project site. (JE 5F4).

9. The project site is also bounded on the east by MR - 1

zoning designation, and the Boardwalk property, medium density

and multi - fami ly residential. To the west and northwest of the

project site is an area of industrial uses ( e.g. , Mackenzie Tank

Lines) zoned CP, commercial parkway. The property to the south

of the project site is zoned CP and has commercial parkway and

commercial use s. West Tennessee Street, an arterial highway, is

south of, but not adjacent to, the project site. Access to the

project site is from a driveway off of West Tennessee Street.

(JE 5F4).

Alta Seminole Site Plan Application Process

A. General

10. The City’s LDC provides for review of site plans as

Types A - D, according to characteristics set forth in the LDC.

Wood Partners applied for a Type B site plan approval for the

project site. Type B site plans are governed by Sections 9 - 151

through 9 - 153 and 9 - 155 o f the LDC. Deviations to Type B site

plans are governed by Sections 9 - 231 through 9 - 233, LDC.

11. Prior to submitting a site plan, an applicant must

obtain a Land Use Compliance Certificate and may attend a pre -

application conference. (The project received a land use

compliance certificate.)

12. Upon Submittal of a Type B site plan, the site plan is

distributed for review to four City departments, i.e. , the

Growth Management Department, the Public Works Department, the

Utility Services Department, and the Planni ng Department. Each

reviewing department reviews the parts of the site plan under

its purview and submits a report with comments and

recommendations and findings of fact on the site plan to the DRC

members prior to the DRC meeting on the application.

Rep resentatives from each department comprise the DRC.

B. Alta Seminole Site Plan Application

13. On or about August 6, 2004, Wood Partners submitted a

Type B site plan application for the project site. The

application addresses numerous requirements of the LDC . Only

those portions of the application at issue in this proceeding

are discussed herein.

C. Deviations: Buffers and Setback

14. In its site plan application, Wood Partners requested

two deviations from the City’s buffer and setback requirements

found in Ch apter 10, LDC. Wood Partners requested a reduction

from the required 30 - foot Type D buffer along the north property

line in the vicinity of buildings 4, 5, 8, and 10, to a 15 - foot

Type B buffer with opaque fencing (ultimately of eight feet in

height) in t hese areas. The second deviation was to reduce the

required rear - building setback from 25 to 15 feet along the

north property line in the vicinity of buildings 4, 5, 8, and 10

only. No deviations are requested to the east or south of the

project site. S ee (JE 5F4, JE 2C, and JE 2D). 2

15. Deviations from the development standards found in

Chapter 10, LDC, may be granted by the DRC pursuant to Sections

9 - 231 through 9 - 233, LDC.

16. A developer may request deviations from the

development standards found in Chapter 10, LDC, specifically,

Sections 10 - 177 and 10 - 250, LDC. Wood Partners submitted a

narrative for both requested deviations, addressing the seven

criteria for deviations found in Section 9 - 233, LDC. (The seven

criteria and rationale for meeting them apply to the requested

buffer and building setback deviations.)

17. Section 9 - 233, LDC, lists seven criteria for a

deviation:

(1) The deviation will not be detrimental

to the public good or to the surrounding

properties;

(2) The granting of the deviation is

co nsistent with the intent and purpose of

chapters 9 and 10 and the comprehensive

plan;

(3) The deviation requested is the

minimum deviation that will make possible

the reasonable use of the land, building,

or structure;

(4) The strict application of the

requirements of chapters 9 and 10 will

constitute a substantial hardship to the

applicant, which hardship is not self -

created or imposed;

(5) There are exceptional topographic,

soil, or other environmental conditions

unique to the property;

(6) The deviation requested would provide

a creative or innovative design

alternative to substantive standards and

criteria; and

(7) The impacts associated with the

deviation requested are adequately

mitigated through alternative measures.

18. Deviations mu st be consistent with the Comprehensive

Plan and may not create an adverse impact to the public health,

safety, and welfare. § 9 - 231, LDC. The applicant has the

burden to prove by a preponderance of the evidence that all

conditions necessary to granting the deviations have been met.

§ 9 - 233, LDC.

19. On September 8, 2004, Cherie Bryant, Acting Chief,

Land Use/Current Planning Division, of the Tallahassee - Leon

County Planning Department, issued a Memorandum to the DRC

members providing recommendations re garding the buffer and rear

setback deviations. (JE 8F1). The Planning Department found in

part “that the proposed reduced buffer could not sufficiently

mitigate compatibility impacts of the proposed development upon

adjoining duplex residential residenc es so long as the opaque

fencing was no less than 8 feet in height.” The Planning

Department recommended approval of this deviation subject to the

condition that the buffer “include opaque fencing composed of

durable material; the opaque fencing shall ext end a minimum of 8

feet in height; vegetation shall be located on the external side

of the opaque fencing ( i.e. , closest to the duplex residences);

and vegetation shall be maintained by the property owner.” Id.

20. The Planning Department also found that “alt hough the

reduced setback does increase the potential for incompatible

impacts upon the adjoining duplex residential residences to the

north, the proposed reduced buffering, if provided consistent

with the Planning Department’s recommended conditions, coul d

sufficiently mitigate these impacts. Consequently, the Planning

Department recommends approval of this deviation subject to the

condition that the Planning Department’s conditions pertaining

to the buffer deviation request are adopted (included in the

d evelopment order).” The Planning Department also offered a

“Preferred Design Alternative”: “The site plan shall be revised

to include the following annotation: ‘Prior to the commencement

of construction activities on site, trees shall be protected

throu gh the construction of a hog - wire boundary fence anchored

with steel posts located at or beyond the critical protection

zone of these trees.’” (JE 8F2).

21. On September 13, 2004, the DRC conditionally approved

the buffer and setback deviation requests. Th e buffer deviation

request was granted conditioned upon an eight - foot opaque fence

of durable material being built and vegetation placed outside

the opaque fence (closest to the duplex residences) and

maintained by the property owner. (JE 8G2).

22. The introd uctory sentence in Section 9 - 233, LDC,

states that the granting of deviations from development

standards is not favored and may only be granted if all of the

seven criteria are met. However, Dwight R. Arnold, Jr., the

City’s Land Use and Environmental Ser vices Administrator,

testified that deviations are provided to allow departments to

have flexibility to address conflicts with the LDC and to

provide a way to balance conflicting provisions.

23. Boardwalk offered the testimony from its engineer,

John Frith, P .E., that the site plan could have been designed

differently, obviating the need for the deviations, i.e. , by

tightening up some of the spacing between the buildings and

minimizing landscaping between the sidewalks and buildings.

(The widening or narrowin g of buffers in between the drive lanes

would impact the ability for trees to be able to grow in those

areas, which is a primary criterion.) However, Mr. Frith did

not present an alternative design.

24. The deviation will not be detrimental to the public

good or to the surrounding properties because the uses located

to the north of the Alta Seminole project are comparable with

the proposed use. § 9 - 233(1), LDC. The property to the north

is used as student housing, similar to the Alta Seminole

project, wh ich is intended to serve students. In addition,

there will be a 15 - foot buffer, with an eight - foot opaque fence

and plantings in the buffer. But see Endnote 2. Also, along

the north property line where the deviation is being requested,

there is an aband oned railway right - of - way with grading, a storm

structure, a conveyance structure, and utilities.

25. Along the west boundary, there are existing trailer

pads and trailers and cleared areas where the deviation is being

requested. Industrial uses are also l ocated west of the project

site.

26. The granting of the deviation is consistent with the

intent and purpose of Chapters 9 and 10 of the LDC and the

Comprehensive Plan so long as the impact is mitigated by the

opaque fence and plantings. § 9 - 233(2), LDC. T he purpose of

buffers is to protect uncomplimentary land uses. As noted, the

uses to the north and west will not be adversely affected by the

proposed use on the project site. (While the deviation

requested is to buffer width, plantings in the remaining area

will be done comparable to what would have been planted without

the deviation, and opaque fencing along the northern deviation

strip will increase opacity between the uses. Plantings will

provide four and a half canopy trees per 100 feet, 1.8 under -

s tory trees and 18 shrubs.)

27. Mr. Campbell testified that the deviations requested

are the minimum to make possible the reasonable use of the land

and have a project feasible for the developer. § 9 - 233(3), LDC.

The deviations enable the developer to provid e green space,

protect trees, meet stormwater requirements, and provide larger

interior landscape islands than most student complexes in the

City. The project is also designed to have the number of units

feasible to the developer.

28. Further, a reasonabl e use of the land in this zoning

district is 16 units per acre or 320 units. Wood Partners

proposes 312 units. To reduce the size of the deviation

requests, Wood Partners obtained a reduction in drive - out widths

and compact spaces from the Parking Standa rds Committee prior to

applying for the site plan approval. This reduced the need to

further encroach on setbacks and buffers.

29. The requested deviations are the minimum that will

make possible the reasonable use of the land, building or

structure.

30. The stri ct application of the buffer and setback

requirements will constitute a substantial hardship to the

applicant that is not self - created. § 9 - 233(4), LDC. The

developer is working with a redevelopment site and is required

to preserve existing urban forest, and provide parking spaces

adequate for the project, landscaping, and stormwater

management.

31. The lack of urban forest available on the

redevelopment site makes it difficult to meet urban forest

criteria. As a redevelopment site, 6.85 percent of the proje ct

site must be delineated as urban forest. The site plan meets

this requirement. (Mr. Firth felt that the urban forest

requirements for the project site could be mitigated for greater

flexibility of site design. However, mitigation is only

available if urban forest requirements cannot be met, which are

met in this case.) Wood Partners had to be creative in the

placement of buildings and other facilities in order to maintain

the required urban forest areas. The weight of the evidence

indicates this req uires some encroachment into setbacks and

buffers.

32. Moreover, the City’s LDC was recently revised to

require internal landscaped islands to be a minimum of 12 feet

wide when there are more than 14 parking spaces nose to nose.

It makes the internal portion of the project greener, but also

requires developments to be spread out. The deviations make it

possible for the developer to meet the City’s requirements for

the number of parking spaces and landscaping in the parking

areas.

33. The City reviews hardships by looking at the request

in light of whether one provision of the LDC is a hardship on

the development in relation to another provision. If the

deviations are approved, the number of units that are

economically feasible can be constructed, together with adequate

parking, necessary landscape islands, and necessary stormwater

management. Meeting the strict requirements of the City’s

buffer and setback regulations would be a hardship that is not

self - imposed.

34. The fact that the site is a redevelopment sit e and

must preserve existing urban forest is an exceptional

environmental condition unique to the property. § 9 - 233(5),

LDC. See also Finding of Fact 31. It is difficult to set aside

the requisite portion of the property as urban forest when a

site is b eing redeveloped. In this case, it was 59,976 square

feet. The areas where the deviations are being requested were

previously developed, and are now developed. The proposed

development was designed around existing trees, preserving them

to satisfy the u rban forest criteria.

35. Wood Partners proposes to construct three - story

buildings, even though two stories would be less expensive to

construct. This causes the units to be compacted, thus allowing

the provision of required parking. The preservation of exi sting

trees, opaque fencing, and planting provide a creative design

alternative. § 9 - 233(6), LDC.

36. The impacts associated with the requested deviations

are adequately mitigated by the opaque fence and vegetation.

§ 9 - 233(7), LDC.

37. Based on the weight of the evidence, Wood Partners

satisfied the LDC requirements for the two deviations. Wood

Partners demonstrated, by a preponderance of the evidence, that

it has met the seven criteria for the deviations. Boardwalk did

not present persuasive evidence that Wood Partners had failed to

meet its burden or that the deviations are inconsistent with the

Comprehensive Plan or would have any discernible impact on the

public health, safety, or welfare, including either the

residents on Boardwalk’s property to the eas t or the residents

to the north of the project site or the land uses to the west

and northwest of the project site.

D. Stormwater Inlet and Compactor Placement

38. Wood Partners proposes to install a stormwater inlet

under a rectangular trash compactor (not a dumpster) for the

project. The compactor is located on the southern border of the

project site and approximately 60 feet from and west of the

entrance to the project site. (JE 5F4 and JE 5F6).

39. It is standard practice to install such an inlet at

this location to help with wash down of those facilities after

the solid waste from the compactors is picked up.

40. Stormwater, and other fluids or substances which may

be generated from debris inside the compactor, flow in an east -

to - northeast manner through a s mall collection pipe located

under the eastern portion of the compactor into the main

stormwater conveyance system which ultimately empties into the

stormwater basin (pond) located in the southeast portion of the

project site. Id. (The pond is a rate att enuation pond with

stormwater treatment, including a sand filtered system. It

provides detention and treatment. 3 )

41. Although not required by the City, Wood Partners plans

to install a trash or collection basket in the inlet (in the

immediate vicinity of the compactor) to capture large debris

that might enter into the inlet before it gets into the system.

Small particles can flow through the device into the pond, but

it has not caused problems for pond maintenance. Mr. Campbell’s

firm has designed two other projects within two years, both

student housing complexes, with compactors and inlets in the

vicinity of the compactor. No problems have been identified.

42. The collection basket is not shown on the site plan,

but Mr. Campbell represented that it will be d one.

43. The LDC does not expressly prohibit a stormwater inlet

in a compactor pad from discharging into a stormwater pond.

44. There is a difference between a dumpster and a

compactor. Some compactors contain all debris and would not

create leachate, others do.

45. Mr. Barkve explained that sometimes drainage inlets at

compactors or dumpsters are connected to sanitary sewer lines;

sometimes they are connected to the storm drain. (Mr. Barkve is

a registered professional engineer employed by the City in the

Growth Management Department. He reviews site plans for

compliance with the City’s stormwater concurrency regulations.)

46. For the Alta Seminole project, it is Mr. Barkve’s

personal feeling “that is better to put the drainage from the

dumpster pad, where there w ould be leachate leaving the

dumpster, that leachate be routed to the sanitary sewer and not

the stormwater facility.” (Wood Partners does not propose to

install a dumpster. See Finding of Fact 38.)

47. Mr. Barkve explained that if effluent from the inlet

l ine flows directly into the pond, “[i]t is a degradation of the

water quality.”

48. If the pond fills up completely and overflows above

the flood stage level, the water, and potentially effluent,

would flow to the south toward commercial property and to the

Boardwalk property to the east. 4 See Endnote 7.

49. Mr. Barkve would probably recommend routing the

drainage from the dumpster pad to the sanitary sewer line later

during the permitting of the project; not at this time when the

site plan is being considere d. Mr. Barkve further explained

that recommendations regarding the connections of the inlet to

sewer or stormwater would come after a review of greater detail.

This occurs at the environmental permit stage.

50. The City is working on regulations to provid e

standards for dealing with drainage from dumpster and compactor

pads, but no rule currently exists.

51. Further, the application includes pre - development and

post - development drainage maps. (JE 3J16 - 17). The project site

has a ridge line running approxi mately north to south through

the middle of the property. (JE 5F6). In the pre - development

condition, east of the ridge line, the stormwater generally

flows south and east. West of the ridge line, the stormwater

generally flows to the south and west. T he stormwater must be

managed in both directions. Pertinent here, Wood Partners was

required to build a pond that will manage the runoff leaving the

east side of the ridge. Id.

52. At this stage of the process, concurrency requirements

require an applicant t o show that the 25 - year storm event 5 does

not cause an increase in the elevation along the channel

depicted on Joint Exhibit 3J16. In the current (pre -

development) condition, some site water flows east. With

respect to post - development projected conditio ns, the proposal

is to collect some of the water that will be in the parking lots

and route it to the stormwater pond. (The project site is not

in an area of special flood hazard.)

53. Mr. Barkve stated that the project’s stormwater

management plan meets si te plan requirements. 6 (In fact, it will

slightly reduce the flow coming off the project site going in an

easterly direction.)

54. There is no persuasive evidence indicating that the

stormwater pond is likely to overflow or that there would be

adverse impa cts to the Boardwalk property that might result if

the stormwater pond overflows. Also, there is no persuasive

evidence indicating that the proposed stormwater inlet, as shown

on the site plan, is not appropriate or does not otherwise

comply with site pla n requirements. 7

E. Due Process Considerations

55. Boardwalk contends that it was not afforded due

process because the public, including Boardwalk, was not

provided with recommendations regarding the Wood Partners’

project (site plan) one business day prior to the DRC meeting on

September 13, 2004; by failing to base the DRC’s approval of the

project only on the written staff recommendations; and by

approving the deviations and site plan without requiring updated

written recommendations and findings of fact, after receiving

additional responses from the applicant.

56. Section 9 - 155(9)f., LDC, provides for “Development

review committee meetings” for Type B review, such as the Wood

Partners’ site plan.

57. DRC meetings “are administrative in nature and not

subject to the quasi - judicial provisions of state statutes. No

testimony may be received from any applicant or member of the

public during the course of the [DRC] meeting.” Id. A DRC

member may ask questions of the applicant at the meeting on

technical issues rela ted to the site plan, limited to inquiries

seeking clarification of material in the application. Members

of the public have the opportunity to speak on the same

technical issues. Id. Pertinent here,

[E]ach member of the [DRC] is responsible

for provid ing proposed written findings of

fact which identify whether a development

meets the applicable criteria and standards

of this section and those imposed by other

codes, regulations, and adopted standards of

the city. The proposed written findings

shall be transmitted to other members of the

[DRC], the applicant, and made available for

public inspection at least one day prior to

consideration be the [DRC]. The proposed

written findings shall be the basis for a

recommendation by each department review

commi ttee member to the other development

review committee members to approve, approve

with conditions, deny, or continue

consideration of an application to a date

and time certain.

Id.

58. The DRC considered the Alta Seminole site plan during

its meeting held on September 13, 2004. 8 Prior to this meeting,

staff reports were submitted by the Growth Management Department

on September 3, 2004 9 ; the Utility Services Department on

August 26, 2004; the Public Works Department on September 7,

2004; and the Planning D epartment on September 8, 2004. (JE 8C -

F). Each staff report contained, in substance, findings of

fact. Id. Each report was available for public inspection more

than one day prior to the September 13, 2004, DRC meeting.

59. Upon receipt of the staff repo rts, the applicant may

contact staff in each reviewing department to address any

comments and/or recommendations in the Department’s staff

report. Members of the public may also discuss their comments

with staff or they can do so in writing prior to the D RC

meeting. Typically, comments received by the City after

proposed DRC findings have been issued are communicated to DRC

members by e - mail. If an applicant for, e.g. , a Type B site

plan, provides information to staff prior to a DRC meeting, they

are typ ically taken to the growth management office and

distributed to its DRC members. The new information may cause

staff to change their recommendation, which is then brought up

at the DRC meeting. This is typically done after a report has

been written.

60. The City maintains that the reviewing departments are

not required to prepare written comments or responses to

information presented to the departments after the written staff

reports are prepared and that the reviewing departments are not

required to pre pare more than one set of written findings, as in

this case.

61. By e - mail dated September 8, 2004, Mr. Campbell sent

Ms. Linda Dunning, P.E., responses to proposed DRC comments. (JE

5A). By letter dated September 8, 2004, (date stamped received

by “Growth Ma nagement” on September 9, 2004), Mr. Campbell, in

response to the pre - DRC comments, provided Mr. Barkve with the

revised stormwater analysis for the project. “The changes

included modification to the model to reflect the existing

stormwater facilities at the Boardwalk complex for both the pre

and post developed conditions. Review of the output data from

the revised model concludes the proposed project has no adverse

impact to the downstream conveyance system.” (JE 3J1).

62. Mr. Barkve stated that there was no written

recommendation regarding the revised stormwater study available

prior to the DRC meeting. Rather, he made a verbal

recommendation following his review of the revised study.

63. On September 13, 2004, the DRC convened and approved

the requested rear - building setback and buffer deviations and

the site plan application, with conditions. The DRC’s decision

is memorialized in a letter to Mr. Campbell of September 17,

2004. (JE 8G).

64. Any party with standing, as defined in Section 1 - 2,

LDC, such as Board walk, may seek formal proceedings on a Type B

site plan pursuant to Section 9 - 155(9)i., LDC, within 30 days of

the rendering of the DRC action.

65. In this case, Boardwalk filed a Petition for Formal

Proceedings on October 12, 2004, and after a determination of

standing was made, the matter was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge and a de novo hearing, which was held in this case.

The DRC decision is treated as a staff report. Art. IX, § 5,

ByLaws.

66. Proposed written findings and recommendations were

timely transmitted to the members of the DRC and made available

to the applicant and the public more than one day prior to the

DRC meeting. However, it appears that the written findings were

not the only bases for recommendations. It appears that

recommendations were made during the DRC meeting based on

supplemental information provided to staff by the applicant.

Nevertheless, even if this is a procedural defect, it did not

deprive Boardwalk of due process in light of Boardwalk’s

participation in the de novo hearing. See In Re: Mallard Pond

Subdivision , (Planning Commission July 28, 1997, Findings of

Fact and Order)(JE 11A1).

CONCLUSIONS OF LAW

Jurisdiction

67. The Division of Administrative Heari ngs has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 2 - 138, LDC.

Standing

68. All of the parties in this case have proven their

standing to participate in this proceeding. § 2 - 134, LDC.

Burden of Proof

69. Arti cle IX, Section 5, of the Planning Commission

Bylaws, addresses the presentation and acceptance of evidence at

the hearing. The administrative law judge is not bound by

strict rules of evidence, but may exclude irrelevant,

immaterial, incompetent, or undu ly repetitious testimony or

evidence. Hearsay evidence will be accepted, but the

administrative law judge shall not make a finding based solely

on hearsay, unless the hearsay would be admissible under the

Florida Evidence Code.

70. Article IX, Section 5, of the Planning Commission

Bylaws, also addresses the burden of proof: “[T]he 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. . .,

the burden of proof will shift to the petitioner(s) to rebut the

evidence submitted by the applicant. The decision under appeal

[here the DRC decision] will be treated as a staff report.” The

applicant has “the burden of demonstrating thr ough a

preponderance of the evidence that all conditions necessary to

granting [deviations] have been met.” § 9 - 233, LDC.

Approval of the Site Plan and Deviations

71. The preponderance of the evidence in this matter

supports the conclusion that the Wood Part ners’ Type B site plan

for a 312 - unit multi - family project, is consistent with the

Comprehensive Plan and meets all applicable regulations in the

Land Development Code.

72. Boardwalk has failed to present persuasive evidence

that the proposed Type B site plan for the Alta Seminole

project, including the buffer and setback deviations, see

Section 9 - 233(1) - (7), LDC, does not meet the criteria in the

Land Development Code or that it is inconsistent with the

Comprehensive Plan.

73. With respect to Boardwalk’s due proc ess claims, the

process leading up to the DRC’s decision to approve the Alta

Seminole site plan did not deprive Boardwalk of due process.

The DRC meeting was “administrative in nature and not subject to

the quasi - judicial provisions of state statutes.” § 9 - 155(9)f.,

LDC. The DRC meeting was properly noticed and there is no

evidence that Boardwalk did not have adequate notice and an

opportunity to provide City staff and the DRC with comments and

recommendations regarding the Alta Seminole site plan. Furt her,

in light of Boardwalk’s challenge, the decision of the DRC is

“treated as a staff report.” In other words, there is no

presumption of correctness attached to the DRC decision. See

Boca Raton Artificial Kidney Center, Inc. v. Florida Department

of He alth and Rehabilitative Services , 475 So. 2d 260, 262 (Fla.

1st DCA 1985). Boardwalk is entitled to, and did participate as

a party, in the quasi - judicial de novo hearing conducted in this

case. Boardwalk did not prove that it has been deprived of due

pr ocess.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered approving the

Type B site plan and deviations, with conditions.

DONE AND ENTERED this 18th day of January, 2005, in

Talla hassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of January, 2005.

ENDNOTES

1 / On October 19, 2004, the Pla nning Commission's attorney

determined, based on the allegations in the Petition, that

Boardwalk had standing subject to proof of standing in the

quasi - judicial evidentiary hearing.

2 / Mr. Campbell explained that the reduced setbacks are located

in the a reas marked A and B on the “geometry plan” (JE 5F4).

(T24 - 25). He marked the reduced buffers on the “geometry plan,”

as areas C and D. Id. (T26 - 27, 24). The “geometry plan”

provides for a 10 - foot Type B buffer in the area marked C, which

should be a 15 - foot Type B buffer. (JE 5F4).

3 / The pond is appropriately sized.

4 / Mr. Barkve stated that “[s]omething above the 25 - year event

may cause it to overflow.” He stated that the potential for

overflow of the pond would be “done in permitting.” See also

Findings of Fact 51 - 52 for more details regarding potential

impacts to the Boardwalk property that might result from

stormwater pond overflow.

5 / Wood partners submitted documentation showing pre - and post -

development models using synthetic r ainstorms with durations of

1, 2, 4, 8, and 24 hours and frequencies of 2, 5, 10, 25, and

100 years. The modeling indicated that the proposed development

will have no adverse off - site stormwater impacts. As noted

above, something above the 25 - year event may cause the pond to

overflow. There was no evidence indicating the level of storm,

which would likely cause the pond to overflow. According to Mr.

Barkve, this issue will be analyzed during permitting.

6 / Mr. Barkve also stated that the proposed st ormwater

management plan will be required to comply with the

“environmental management requirements” when Wood Partners

applies for a permit for construction of the project. Mr.

Arnold stated that the project met the City’s regulations for a

preliminary c oncurrency certificate, including meeting all

requirements for stormwater concurrency at the site plan review

phase of the development.

7 / Nevertheless, it is recommended that the applicant design and

construct the inlet/compactor unit so that effluent, if any,

leaving the inlet/compactor unit, would not degrade the quality

of the water, leading to and within the pond and potentially

leaving the project site to the east and south.

8 / Notices of Type B site plans must be mailed to property

owners within 500 feet of the project’s property lines. Notices

of the Alta Seminole Type B site plan were mailed to property

owners within 525 feet of the project’s property lines.

Boardwalk was on the mailing list to receive notice of the DRC

meeting when the Alta Seminole project was scheduled for review

and action. Notice of the DRC meeting was also published in the

newspaper and the City posted a sign on the property. See ,

e.g. , (JE8C4)(City Exhibit 2).

9 / The Growth Management Department recommended “conti nuance of

the site plan application, in order to allow the applicant to

address stormwater concurrency issues. The Department’s

recommendation is based upon the finding that the application

has not yet demonstrated consistency with the applicable

provisio ns of Chapters 4, 5, 9, and 10 of the” LDC. (JE8C4).

See also (JE 8E3). Boardwalk dismissed its objection to the

project based on “stormwater concurrency.” Joint Post - Hearing

Stipulation, paragraph 1.g.

COPIES FURNISHED :

Cherie Bryant, Planning Commi ssion Clerk

Tallahassee - Leon County Planning Department

300 South Adams Street, 4th Floor

Tallahassee, Florida 32301

Robert A. Lash, Esquire

Moody & Salzman, P.A.

Post Office Drawer 2759

Gainesville, Florida 32602

Linda R. Hurst, Esquire

Office of the City Attorney

City Hall, Box A - 5

300 South Adams Street

Tallahassee, Florida 32301 - 1731

Silvia Morell Alderman, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Chris Bentley, Esquire

Planning Commission

2548 Blairstone Pines Drive

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the entity that

will issue the Final Order in this matter.