06-001234 Joseph R. Gillespie And Melanie A. Gillespie vs. City Of Tallahassee And Midyette, Llc Status: Closed Recommended Order on Tuesday, October 17, 2006.

Summary: The Planning Commission should grant a deviation from the buffer zone requirements in the zoning code and approve the site plan for the 18-unit multi-family residential project. The surrounding properties are adequately buffered by fences and landscaping.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH R. GILLESPIE and MELANIE )

A. GILLESPIE, )

)

Petitioners, )

)

and )

)

MARY ANN CHAP and MICHAEL LEE )

CHAP, )

)

Intervenors, )

)

vs. ) Case No. 06 - 1234

)

CITY OF TALLAHASSEE and )

MIDYETTE, LLC, )

)

Respondents. )

)

RECOMMENDED ORDER

A final hearing was held in this case by Administrative Law

Judge T. Kent Wetherell, II, on August 24, 2006, in Tallahassee,

Florida.

APPEARANCES

For Petitioners: Joseph R. Gillespie , pro se

Melanie A. Gillespie , pro se

2030 Midyette Road

Tallahassee, Florida 32301

For Intervenors: No appearance

For Respondent City of Tallahassee (City):

Linda R. Hudson, Esquire

Office of th e City Attorney

City Hall, Box A - 5

300 South Adams Street

Tallahassee, Florida 32301

For Respondent Midyette, LLC (Midyette):

Daniel E. Manausa, Esquire

Smith, Thompson, Shaw & Manausa

3520 Thomasville Road, Fourth Floor

Tallahas see, Florida 32309

STATEMENT OF THE ISSUE

The issue is whether the Type B site plan submitted by

Midyette for an 18 - unit town home/condominium project on the

west side of Midyette Road should be approved.

PRELIMINARY STATEMENT

On February 27, 2006, the City’s Development Re view

Committee (DRC) approved the Type B site plan submitted by

Midyette for an 18 - unit , multi - family residential project called

Midyette Green Townhomes ( hereafter “ the proposed development ” ) .

On March 27, 2006, Petitioners timely fi led a Petition for

Quasi - judicial Proceedings with the Tallahassee - Leon County

Planning Commission (Planning Commission) contesting the

approval of the site plan .

On April 10, 2006, the Planning Commission referred this

matter to the Division of Administra tiv e Hearings (DOAH) to

conduct a quasi - judicial evidentiary hearing in a ccordance with

Section 2 - 138 of the City’s Land Development Code (LDC) and

Article IX of the Bylaws of the Planning Commission (Bylaws) .

The referral was received by DOAH on April 1 2, 2006, and the

case was initially assigned to Judge Johnston.

On June 20, 2006, Mary Ann Chap and Michael Lee Chap (the

Chaps) petitioned to intervene. The petition was provisionally

granted by Order dated June 21, 2006 , and on June 30, 2006,

Judge John ston issued a Determination of Standing in w hich he

found that the allegations in the Chaps’ petition to intervene

were sufficient to give them standing to participate in this

proceeding. See Bylaws, art. IX, § 1(m).

The final hearing was initially schedu led for June 26,

2006, but it was re scheduled for August 24, 2006, at the City’s

request. The case was transferred to the undersigned on

August 15 , 2006.

At the final hearing, the City presented the testimony of

Dwight Arnold, Eric Sawyer, and Roxanne Man ning ; Midyette

presented the testimony of Charles Hargraves; and Petitioners

presented the testimony of Sedita Cayson and Melanie Gillespie.

The following exhibits were received into evidence: City

E xhibits 1 through 5 ; Midyette E xhibits 1 and 2; and Joi nt

Exhibits 1 through 10, 11A through 11D, and 12 through 18.

An opportunity for public comment was provided at the final

hearing . See Bylaws, art. IX, § 4. No public comment was

presented.

The Transcript of the final hearing was filed on

September 5, 20 06. The parties requested and were given 20 days

from that date to file proposed recommended orders (PROs) . The

deadline for the PROs was extended to September 2 9, 2006, at the

City’s request.

The City and Midyette filed a joint PRO on September 28,

20 06. Petitioners filed a PRO on September 29, 2006. The Chaps

did not file a PRO. The PROs have been given du e consideration.

FINDINGS OF FACT

A. Parties

1. Petitioners own the property located at 2030 Midyette

Road . T hey reside in a single - family re sidence on that

property.

2. Midyette is the applicant for the site plan at issue in

this case. It owns the property located at 2036 Midyette Road,

Parcel ID No. 31 - 09 - 20 - 257 - 0000 (hereafter “the project site”) ,

which is the site of the proposed develop ment at issue in this

case.

3. The Chaps own the property located at 2042 Midyette

Road. There was no evidence as to whether the Chaps reside on

that property, or even if there is an occupied structure on the

property. The Chaps did not appear at the h earing.

4. The City is the local government with jurisdiction over

the proposed development. The project site is with in the City

limits.

B. The Proposed Development

(1) Generally

5. The proposed development is a multi - family residential

project con sisting of 18 town home/condominium unit s in three

two - story buildings.

6. The proposed development includes a parking lot for the

residential units and a private driveway/entrance road with

curbs and gutters connecting the parking lot to M idyette Road.

There will be a sidewalk adjacent to the driveway/entrance road.

7. The density of the proposed development is 7.76 units

per acre.

(2) The Project Site

8. The project site is 2.32 acres. It is located on the

west side of Midyette Road, between Old Sa int Augustine Road and

Capital Circle Southeast, approximately 1,050 feet north of

Capital Circle Southeast.

9. The only development currently on the project site is a

vacant house that is approximately 800 feet west of Midyette

Road and an unpaved drivew ay that runs from Midyette Road to the

structure. The project site is heavily wooded, with a number of

large oak an d pine trees along the existing driveway.

10. The project site is a n irregularly shaped “flag lot , ”

as defined in LDC Section 1 - 2. The mai n body of the project

site -- the flag portion -- is approximately 5 50 feet west of

Midyette Road, and is connected to Midyette road by a narrow

strip of property -- the flag pole portion -- that is

approximately 29 feet wide.

11. The LDC prohibits the cre ation of new flag lots for

multi - family development, but it does not preclude multi - family

de velopment on flag lots that pre date the LDC.

12. The project site was created in 1978 , prior to the

adoption of the current versions of the Tallahassee - Leon Count y

Comprehensive Plan (Plan) and the LDC.

13. Midyette purchased the project site in September 2005,

and at the time it did so, Midyette was aware t hat a deviation

from the landscape buffer standards in the LDC would be required

to develop the property wit h multi - family units .

14. The land use classification for the project site is

High Inten sity Urban Activity Center (AC). The zoning

designation is also AC.

15. The Plan permits residential development in the AC

district “up t o 45 dwelling units per acr e.”

16. The Zoning Code, which is Chapter 10 of the LDC,

permits “residential development of complimentary intensity of

16 to 45 units per acre” in the AC district.

17. The 16 - unit per acre figure in the Zoning Code is not

the minimum density allowed in the AC district . Instead,

according to Roxanne Manning, t he land use planning supervisor

for the Tallahassee - Leon County Planning Department , l ower

density multi - family development (such as th e 7.76 units per

acres proposed in this case) is allowed in th e AC district if it

is “complimentary” to the land uses on the surrounding

p roperties.

18. Single - family residential development is not a

permitted use in the AC district.

( 3 ) Zoning and Land Use on Surrounding Properties

19. Petitioners’ property is im med iately to the north of

the flag pole portion of the project site and immediately to the

east of the flag portion of the project site. Petitioners’

property is zoned single - family residential .

20. Petitioners’ home is approximately 65 feet north of

the driveway/entrance road for the proposed development.

21. The Ch aps ' property is immediately to the south of the

project site. The Chaps ' property is zoned single - family

residential.

22. The property to the south of the Chaps’ property is

zoned AC and is developed with an affordable housing apartment

complex.

23. The property to the east of the flag p ole portion of

the project site , across Midyette Road , is zoned AC and is part

of the Koger Center office complex.

24. The property to the north of the flag portion of the

project site and to the north of Petitioners’ property is zoned

AC and is developed with a multi - family condominium project with

approximately 60 units.

25. The property to the west of the project site is zone d

multi - family residential and is developed with a condominium

project with approximately 200 units.

C. The City’s Revie w and Appro val of the Proposed Development

(1 ) Land Use Compliance Certificate s

26. The initial phase of the City’s development review

process culminates in the i ssuance of a land u se compliance

certificate (LUC). The LUC indicates whether the proposed use

is generally consistent with the LDC and identifies the type of

site plan review required for the development of the proposed

use.

27. LUC No. TCC050018 was is sued for the project site in

January 2005 . Th e LUC authorized multi - family development on

the project site “at a density not to exceed 12 units per acre . ”

The LUC explained that “[t]he density cannot exceed 12 units per

acre because of the adjacency to l ow density residential to the

south.”

28. A previous LUC for the project site , No. TCC020016 ,

was issued in January 200 2. That LUC stated that the project

site “is eligible for a total of two residential dwelling units,

either two (2) single - family resid ences or one (1) duplex . ” The

LUC also stated that “[t]he parcel is a ‘flag’ lot and non -

residential or multi - family development is not allowed on a

‘flag’ lot.”

29. Dwight Arnold, the administrator of the City’s land

use and environmental services depar tment , credibly testified

that the January 2002 LUC was in error because it did not take

into account the fact that the project site was created prior to

the adoption of the LDC and, therefore, was not subject to the

prohibition of multi - family development on flag lots.

(2) Site Plan Applications and Review

30. There are four types of site plan review provided for

in t he LDC: Types A, B, C, and D.

31. Type A site p lans are reviewed and approved or denied

by the City’s growth management director. Type B site p lans are

reviewed and approved o r denied by the DRC. Types C and D site

plans are not implicated in this case.

32. The DRC is composed of department heads, or their

designees, from the public works, utilities , growth management ,

and planning de partment s . Mr. Arnold and Ms. Manning are both

members of the DRC.

33. On October 13, 200 4 , Midyette submitted a Type A site

plan application for the proposed development.

34. The proposed development was “shifted” or “bumped” to

Type B review b ecause a deviation from the applicable landscape

buffer standard in the Zoning Code was required for Midyette to

develop the project as proposed.

35. Prior to submitting the Type B site plan application,

Midyette applied for and received a variance from the

req uirement in the LDC that it provide an eight - foot perimeter

landscape area along the flagpole portion of the project site.

T he perimeter landscaping requirement that was the subject of

the variance is different from the landscape buffer standard

from whic h Midyette is seeking a deviation in this case. The

variance was issued by the Environmental Variance Board.

36. Midyette submitted the Type B site plan application

for the proposed development on January 20, 2 006 . The site plan

was materially the sa me as the Type A site plan submitted in

October 200 4 .

37. Also on January 20, 2006, Midyette submitted a request

for a deviation from the landscape buffer requirements in LDC

Section 10 - 177 for the driveway/entrance road. The deviation

request include d a narrative that addressed each of the criteria

in LDC Section 9 - 233.

38. The site plan and the deviation request were reviewed

by the City’s growth management, planning, utility, and public

works departments. Each of those departments recommended

a pproval of the site plan and deviation, with conditions

unrelated to the landscape buffer at issue in this case.

39. On February 27, 2006, the DRC approved the Type B site

plan application with the conditions recommended by the City

departments . The DRC also approved the requested deviation from

the landscape buffer requirements along the driveway/entrance

road.

40. On March 3, 2006, Midyette submitted a revised site

plan for the proposed development that incorporate d the

conditions imposed by the DRC. The revised site plan -- Joint

Exh ibit 15 and Midyette Exhibit 2 -- meets all of the conditions

imposed by the DRC.

41. On March 27, 2006, Petitioners init iated this

proceeding, which had the effect of transforming the DRC’s

approval of Midyette’s site p lan into a recommendation that goes

to the Planning Commission with this Recommended Order for final

action.

D. L andscape Buffer Standards

(1) Generally

42. Policy 1.4.11 of the Plan requires the LDC to include

provisions for buffers to limit noise an d visual impacts between

uncomplimentary land uses that are adjacent to each other.

43. The LDC includes several provisions relating to

landscape buffer s that, absent a variance or dev iation, the

applicant must meet for a site plan to be approved. If the re is

a conflict between the various buffer standards imposed by the

LDC, “t he most restrictive or that impos ing the h igher standard

shall prevail.” See LDC §§ 5 - 85(l), 10 - 177.

44. The provisions that are most relevant to the buffering

required along dr iveway/entrance road for the proposed

development are LDC Section 5 - 85(k) (“landscape requirements for

vehicular use areas” ), LDC Section 5 - 85(l) (“land use buffer

standards”) , and LDC Section 10 - 177 (“ buffer zones ” ).

45. LDC Section 5 - 85(k) requires an eight - foot - wide

landscaped area between vehicular use area s ( e.g. , parking lots ,

roads, driveways) and the side and rear property lines. This

" perimeter landscaped area " is required to include shrubs or a

berm to provide a visual screen between the vehicu lar use area

and the adjacent property. Fencing is not specifically

required.

46. LDC Section 5 - 85(l) establishes the nature and extent

of the landscaping t hat is to be installed in the buffer zones

required by the Zoning Code , LDC Section 10 - 177 . It i ncludes

specific standards for the type and placement of land scaping, as

well as specific standards for buffer fences.

47. Among other things, the buffer fence required by LDC

Section 5 - 85(l) must be a minimum of eight feet in height

“unless the applica nt can demonstrate the intent of [Chapter 5

of the LDC] will be met by a fence of lesser height ”; the side

of the fence facing the less intensive use must have a finished

appearance; and at least one - half of all required landscaping

must be placed outside of the fence, on the side facing the less

intensive use. See LDC § 5 - 85(l)(5).

48. Mr. Arnold testified that the LDC was recently amended

to require all of the required landscaping to be placed within

the fence . Mr. Arnold further testified that the a mended

requirement applies to the proposed development.

49. LDC Section 10 - 177 includes a matrix that defines the

type of buffer zone required between properties with different

zoning designations . It describes the required buffer zone as

“a landscaped s trip along parcel boundaries that serve a

buffering and screening function between uses and zoning

districts, provides an attractive boundary of the parcel or use,

or both a buffer and an attractive boundary.”

50. There are four types of buff er zones refe renced in LDC

Section 10 - 177: Types A, B, C, and D.

51. A Type D buffer is required where, as here, the

adjacent development is single - family residential and the

proposed development is multi - family residential.

52. The width of the buffer zone varies b ased upon the

amount of landscaping provided. The narrower the buffer zone ,

the more landscaping that must be provided.

53. The minimum width for a Type D buffer is 30 feet, and

in a buffer of that width, a minimum of 12 canopy trees, six

understory tr ees, and 36 shrubs must be planted for each 100

linear feet of buffer.

(2) Buffering of the Proposed Development

54. The buffer areas provided by Midyette around the

proposed multi - family buildings and parking lot on the flag

portion of the project site meet the requirements of LDC

Sections 5 - 85(k) and (l) and 10 - 177. Midyette did not request a

variance or d eviation for those buffer areas.

55. Petitioners and the Chaps did not contest the adequacy

of the buffer areas around the development on the flag p ortion

of the project site. The focus of their challenge is on the

adequacy of the buffer area aro und the driveway/entrance road o n

the flagpole portion of the site.

56. Midyette was granted a variance from the perimeter

landscaping requ irements of LDC S ection 5 - 85(k) along the

driveway/entrance road ( see Finding of Fact 35) , but it is still

required to comply with the standards in LDC Section s 5 - 85( l)

and 10 - 177 in that area.

57. Thus, absent a deviation, Midyette is required to

provide 30 - foot Type D b uffer zones along the driveway/entrance

with the landscaping and fencing required by LDC Section 5 -

85(l).

58. Midyette requested a deviation from the landscape

buffer standard along the driveway/entrance road because it is

impossible for it to provide a 6 0 - foot - wide Type D buffer -- 30

feet from Petitioners’ property to the north and 30 feet from

the Chaps ' property to the south -- in the 29 - foot - wide flagpole

portion of the project site.

59. The deviation approved by the DRC relieved Midyette

from provi ding any landscaping along the driveway/entrance road;

relieved Midyette from installing a fence south of the

driveway/entrance road adjacent to the Chaps’ property; and

required only a four - foot wood fence north of the

driveway/entrance road adjacent to P etitioners’ property.

60. At the final hearing, Mr. Arnold recommended that the

approval of the deviation be modified to require an “8 - foot

fence . . . on the north and south sides of the driveway” and to

also require that the areas adjacent to the drivew ay/entrance

road “be landscaped to the greatest ex tent possible and

practicable.”

61. Mr. Arnold acknowledged that Midyette may not be able

to get all of the required plantings in the areas adjacent to

the driveway/entrance road . To do so, Midyette would have to

plant approximately 132 canopy trees, 66 understory trees, and

400 sh rubs along the driveway/entrance road.

62. Charles Hargraves, the engineer of record for the

proposed development testified that the fences could be

constructed but that it “wou ld be difficult, if not impossible,

to provide 100 percent [of the required landscaping] in that

area.” On the latter point, Mr. Hargraves acknowledged that it

may be necessary for Midyette to request a variance from the

extent of the landscaping required by LDC Section 5 - 85(l) alo ng

the driveway/entrance road.

63. The four - foot fence shown on the site plan north of

the driveway/entrance road is approximately two feet from

Petitioners’ property line. The sidewalk is immediately

adjacent to the fence , and as a result, the only area for

landscaping along the driveway/entrance road is a two - foot area

between the sidewalk and the curb of the road. There is no

space for landscaping south of the road because the curb is less

than two feet from the Chaps’ prope rty line.

64. Mr. Hargraves testified that it is possible to locate

the fence immediately adjacent to Petitioners’ property line,

rather than two feet inside of the property line as depicted on

the site plan. Doing so would increase the planting area

bet ween the fence and the sidewalk, which is consistent with the

new requirement ( see Finding of Fact 48 ) that all of the

landscaping be placed inside of the fence. The location of the

fence in relation to the property line “doesn’t matter” to

Melanie Gilles pie, the Petitioner who testified at the hearing.

65. The details of the landscaping plan are worked out at

the envi ronmental permitting stage, and that is when a variance

might be considered. A request for a variance of the standards

in LDC Section 5 - 85 (l) would be considered by the Environmental

Variance Board, not the DRC or the Planning Commission.

66. Mrs. Gi llespie testified that the additional bufferin g

recommended by Mr. Arnold is an improvement to the site plan,

but that in her opinion it is sti ll inadequate to protect her

property from the impacts of the driveway/entrance road.

67. Mrs. Gillespie further testified that, in her opinion,

nothing short of the buffer area required by the LDC should be

required, even though she acknowledged that i t would be

impossible for Midyette to provide a 60 - foot - wide buffer in the

29 - foot - wide flagpole portion of the project site.

(3) The Contested Deviation

68. The City is authorized to grant deviations from any of

the standards in Chapters 9 and 10 of th e LDC, including the

buffer standards in LDC Section 10 - 177. The DRC is responsible

for reviewing and taking action on deviation requests.

69. The authorization to grant deviations gives the City

flexibility to resolve conflicts between different provi sions of

the LDC that, if applied literally, might preclude development

or undermine the growth management goals of the City reflected

in the Plan and the LDC. On this point, Mr. Arnold testified

that a deviation “gives the developer a means of getting th rough

the [LDC] to meet compliance with other provisions of the code.”

70. A deviation must be consistent with the Plan and may

not create an adverse impact to the general health, safety, and

welfare of the public.

71. The granting of deviations is not favored, and the

applicant must show that all seven of the criteria in LDC

Section 9 - 233 are met in order to obtain a deviation.

72. LDC Section 9 - 233(1) requires that the deviation “not

be detrimental to the public good or the surrounding

properties.”

7 3. The noise from the traffic on the driveway/entrance

road has the potential to adversely impact Petitioners’ property

because the road is approximately 65 feet from Petitioners’

home, and during the peak travel time, there is projected to be

one car tra veling along the road every four minutes.

74. The deviation, as proposed and approved by the DRC,

did not adequately mitigate the impacts of the driveway/entrance

road on Petitioners’ adjacent property because it included only

a four - foot fence and no lan dscaping between the road and

Petitioners’ property.

75. The deviation was modified at the final hearing to

include an eight - foot fence and all of the landscaping required

by LDC Section 5 - 85(l) or, if that is not possible, as much

landscaping as is pra cticable. Those modifications will

adequately mitigate the impacts of the driveway/entrance road on

Petitioners’ property and, as a result, the deviation will not

be detrimental to Petitioners’ property .

76. The a ddition of the fence between Petitioners ’

property and the project site will provide an added benefit to

Petitioners because it will provide a barrier between the two

properties. Currently, there is no fence separating

Petitioners’ property from the unpaved driveway on the flagpole

portion of t he project site.

77. LDC Section 9 - 233(2) requires the granting of the

deviation to be “consistent with the intent and purpose of

chap t ers 9 and 10 and the [Plan].”

78. The deviation, as modified at the final hearing, is

consistent with the intent and p urpose of the LDC and the Plan.

The deviation allows for the development of the property

consistent with its AC land use and zoning designations , and it

adequately buffers the proposed multi - family d evelopment from

the adjacent single - family uses with eig ht - foot fence s and

extensive landscaping .

79. LDC Section 9 - 233(3) requires the deviation to be “the

minimum deviation that will make possible the reasonable use of

the land . . . .”

80. The deviation, as proposed and approved by the DRC,

was not the min imum deviation that make s possible the reasonable

use of the land. Indeed, as recommended by Mr. Arnold and

acknowledged by Mr. Hargraves, it is possible to provide eight -

foot fences and some, if not all, of the required landscaping

along the driveway/ent rance road.

81. The deviation, as modified at the final hearing, is

the minimum deviation that will make possible the reasonable use

of the land consistent with its AC land use and zoning

designations.

82. On this issue, it is noteworthy that Petitio ners did

not identify any reasonable alternative buffer requirement that

could have been imposed, but rather they took the position that

anything short of the buffers required by the LDC would be

inadequate even though Mrs. Gillespie acknowledged that it w ould

be impossible to provide the required buffers in the 29 - foot -

wide flagpole portion of the project site.

83. LDC Sec tion 9 - 233(4) requires th at the standard from

which the deviation is requested “will create a substantial

hardship to the applicant, wh ich hardship is not self - created or

imposed.”

84. LDC Section 10 - 177 creates a hardship on Midyette

because it would be impossible to develop the project site with

multi - family units as contemplated by the site’s AC land use and

zoning designations if the buffer requirements in that Section

were applied literally to the flagpole portion of the project

site. It is im possible for Midyette to provide 60 - foot - wide

buffer as required by LDC Section 10 - 177 in an area that is only

29 feet wide.

85. Midyette wa s not responsible for the creation of the

project site as a “flag lot,” and it did not request the AC land

use and zoning designations on the property. Those conditions

existed at the time Midyette purchased the property. Thus, the

hardship created by LD C Section 10 - 177 was not self - created or

imposed.

86. It is immaterial that Midyette was aware at the time

it purchased the property that a deviation would be necessary to

develop the property with multi - family units. T he LDC

specifically provides a proc edure for obtaining a deviation and

Midyette had a reasonable expectation that it could obtain one.

87. LDC Sec tion 9 - 233(5) requires there to be “exceptional

topographic, soil, or other environmental conditions that are

unique to the property.”

88. Ther e are no topographic, soil or environmental

conditions that are unique to the flagpole portion of the

project site.

89. The project site is not the only flag lot in the City,

although it is unknown how many others there are.

90. T he pro ject site’s config uration as a flag lot,

coupled with its AC land use and zoning designations that

prohibit single - family residential us es, is an exceptional

circumstance that justifies a deviation.

91. LDC Section 9 - 233(6) requires the deviation to

“provide a creative or innovative design alternative to [the]

substantive standards and criteria.”

92. The deviation does not pro pose a creative or

innovative design alternative to the Type D landscaping

standards in LDC Section 10 - 177. However, in light of the

narrow width of the flagpole portion of the lot, the deviation,

as modified at the final hearing, is the only reasonable

alternative to the required buffer.

93. LDC Sec tion 9 - 233(7) requires the impacts associated

with the deviation to be “adequately mitigated through

a lternative measures.”

94. The deviation, as proposed and approved by the DRC,

did not adequately mitigate the impacts of the driveway/entrance

road on Petitioners’ property through alternative measures. The

mitigation provided by Midyette as a condition of the variance

from the perimeter landscaping requirements in LDC Section 5 -

85(k) -- i.e. , additional plantings in the flag portion of the

project site and the four - foot fence -- d id not adequately

mitigate the visual and noise impacts of the driveway/ent rance

road on Petitioners’ property.

95. However, as discussed above, the potential impacts of

the driveway/entrance road on Petitioners’ property is

adequately mitigated by the deviation, as modified a t the final

hearing. The driveway/entrance road will be screened from

Petitioners’ property by an eight - foot fence and extensive

landscaping.

96. If Midyette is unable to provide all of the

landscaping required by LDC Section 5 - 85(l) and requests a

variance from the Environmental Variance Board, there is n othing

to preclude that board from requiring additional mitigation --

e.g. , planting specific types of trees and/or hedges to maximize

screening , moving the sidewalk adjacent to the curb of the

driveway/entrance road (with a guardrail, if necessary) to

max imize the planting space between the sidewalk and the fence

-- in order to ensure that Petitioners’ property is adequately

screened from the driveway/entrance road . See L DC § 5 - 126(1)c.

97. In making the foregoing finding, the undersigned did

not overlo ok Mr. Arnold’s testimony that the Environmental

Variance Board is not required to, and does not typically

consider the impact on surrounding properties when considering a

variance request because the board’s focus is on the

environmental impacts of the va riance. However, the City Code

provisions governing the Environmental Variance Board requires

that a variance not be contrary to the “public interest,” which

would seem to include impacts on the surrounding properties

resulting from an elimination of land scaping required for

buffering purposes. See LDC § 2 - 197(a)(1), (2).

E . Other Issues

98. The final hearing in this case was properly noticed ,

both to the parties and the general public.

99. Notice of the final hearing was published in the

Tallahasse e Democrat on August 9, 2006.

100. An opportunity for public comment was provided at the

final hearing.

101. No public comment was offered.

CONCLUSIONS OF LAW

102. DOAH has jurisdiction over the parties to and subject

matter of this proceeding purs uant to LDC Section 2 - 138 . See

also Bylaws, art. IX, § 1.

103. Th e Planning Commission is responsible for taking

final action on Midyette’s site plan based upon the Recommended

Order issued in this case. See Bylaws, art. IX, § 1(b)1.b.

104. Midyette has the initial burden of proof in this de

novo proceeding . Bylaws, art. IX, § 5. I f Midyette establishes

its entitlement to approval of the site plan through the

submission of substantial competent evidence, the burden shifts

to Petitioner s and the Chap s to “rebut the evidence submitted by

[Midyette] .” Id.

105. Petitioners and the Chaps were pr ovisionally

determined to have standing to participa te in this proceeding,

but they were required to prove their s tanding at the final

hearing. See Bylaws, art . IX, § 1(j) and (m).

106. Petitioners proved their standing . The evidence

establishes that t h eir property is adjacent to the project site ;

their home is within 65 feet of the driveway/entrance road for

the proposed development; and without an adequate buffer, the

traffic generated by the proposed development on the

driveway/entrance road will adversely affect Petitioners’ use

and enjoyment of their property through visual and noise

impacts.

107. The Chaps did not prove their standing . They failed

to a ppear at the final hearing, and no evidence was presented

regarding the location of the residential structure , if any, on

the Chaps’ property in relation to the proposed development; no

evidence was presented regarding the Chaps’ present use of the

propert y; and no evidence was presented regarding the potential

adverse impacts of the proposed development, with or without a

buffer, on the Chaps’ use and enjoyment of their property.

108. Site plan approvals are governed by L DC Section 9 -

153, which p rovides:

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.

109. T he parties stipulated at the final hea ring that the

only issue to be decided in this case is whether Midyette should

be granted a deviation from the Type D landscape buffer

standards along the driveway/entrance road . See Transcript, at

44 - 45.

110. The effect of the parties’ stipulation is th at if it

is determined that Midyette is entitled to a deviation from the

landscape buffer standards, then it follows that the proposed

development satisfies the requirements of LDC Section 9 - 153 and

should be approved .

111. For the requested deviation to be granted, M idyette

must establish by a preponderance o f the evidence that all seven

of the criteria in LDC Section 9 - 233 have been met . The

criteria are:

(1) The deviation will not be detrimental

to the public good or to the surrounding

properties;

(2) The granting of the deviation is

consistent 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

st ructure;

(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

th rough alternative measures.

LDC § 9 - 233.

112. The preponderance of the evidence establishes that

the project site cannot be developed in a manner consistent with

its existing AC land use and zoning designations without a

deviation from the buffer width s tandards in LDC Section 10 - 177

along the driveway/entrance road ; that the installation of

eight - foot fences and extensive landscaping along the

driveway/entrance road will provide an adequate buffer for the

adjacent single - family residential uses; and that the deviation,

as modified at the final hearing to include the eight - foot

fences and the extensive landscaping, meets all of the criteria

in LDC Section 9 - 233. See Findings of Fact, Part D(3) .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Planning Commission approve the Type B

site plan application submitted by Midyette , subject to:

1. the conditions recommended by the DRC;

2. a requirement that an eight - foot fence be placed

immediately a djacent to Petitioner's property line (rather than

a four - foot fence several feet inside the property line) along

the length of the drivewa y/entrance road within the flagpole

portion of the p roject site;

3. a requirement that an eight - foot fence be placed

immediately adjacent to the Chaps' property line along the

length of the driveway/entrance road within the flagpole portion

of the p roject site ; and

4 . a requirement that the areas north of the

driveway/entrance road between the road and the fence along

Petitioners’ property line b e landscaped in accordance with LDC

Section 5 - 85(l) or , if that is not possible, that the area be

landscaped to the greatest extent practicable subject to a

variance from the Environmental Variance Board in order to

maximize th e screening of the Petitioners’ property .

DONE AND ENTERED this 17th day of October , 2006, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of October, 2006.

COPIES FURNISHED :

Roxanne Manning , Planning Commission Clerk

Tallahassee - Leon County Planning Department

300 South Adams Street, Fourth Floor

Tallahassee, Florida 32301

Joseph R. Gillespie

Melanie A. Gillespie

2030 Midyette Road

Tallahassee, Florida 32301 - 620 6

Mary Ann Chap

107 Gresham Avenue

Durham, North Carolina 27704 - 4207

Michael Lee Chap

1862 Baby Farm Circle

Tallahassee, Florida 32310 - 4418

Linda R. Hudson, Esquire

Office of the City Attorney

City Hall, Box A - 5

300 South Adams Street

Tallahassee, Flo rida 32301 - 1731

Daniel E. Manausa, Esquire

Smith, Thompson, Shaw & Manausa

3520 Thomasville Road, Fourth Floor

Tallahassee, Florida 32309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 calendar d ays from the date of this Recommended Order. See

Planning Commission Bylaws, art. IX, § 10(a). Exceptions to

this Recommended Order should be filed with the Clerk of the

Planning Commission. Id.