07-001884 Parkside-Park Terrace Neighborhood Association vs. Stephen B. Skipper And City Of Tallahassee Status: Closed Recommended Order on Wednesday, November 7, 2007.

Summary: The type B site plan for a 78-unit townhome project complies with the applicable criteria in the City`s Land Development Code. Petitioner did not rebut the evidence presented by the develper and the City. Recommend approval with additional conditions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PARKSIDE - PARK TERRACE )

NEIGHBORHOOD ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1884

)

STEPHEN B. SKIPPER and CITY OF )

TALLAHASSEE, )

)

Respondents. )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on September 24 -

25, 2007, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph T. O'Neil

Parkside - Park Terrace Neighborhood

Association

720 Voncile Avenue

Tallahassee, Florida 32303

For Respondent Stephen B. Skipper (Skipper):

Charles R. Gardner, Esquire

Murray Wadsworth, Jr., Esquire

Gardner, Wadsworth, Duggar, Bist &

Wiener, P.A.

1300 Th omaswood Drive

Tallahassee, Florida 32308

For Respondent City of Tallahassee (City):

Linda R. Hudson, Esquire

Office of the City Attorney

City Hall, Box A - 5

300 South Adams Street

Tallahassee, Florida 32301 - 1731

STATEMENT OF THE ISSUE

T he issue is whether the Type B site plan for the 78 - unit

townhome/condominium project known as Park Terrace Townhomes

should be approved.

PRELIMINARY STATEMENT

On March 26, 2007, the City’s Development Review Committee

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

Skipper for the 78 - unit townhome/condominium project known as

Park Terrace Townhomes (the project). On April 24, 2007,

Parkside - Park Terrace Neighborhood Association (Association)

timely filed a Petition for Quasi - judicial Procee dings with the

Tallahassee - Leon County Planning Commission (Planning

Commission) contesting the approval of the site plan.

On April 27, 2007, the Planning Commission referred this

matter to the Division of Administrative Hearings (DOAH) to

conduct a hearin g pursuant to 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 30, 2007.

The final hearing was initially scheduled to begin on

July 31, 200 7, but it was rescheduled for September 24 - 25, 2007,

at the request of the parties. At the hearing, the City

presented the testimony of Dwight Arnold, Mary Jean Yarbrough,

Olu Sawyerr, and James Lee Thomas; Skipper presented the

testimony of Roger Wynn (e xpert in civil engineering) and Wade

Pitt (expert in local land use planning); and the Association

presented the testimony of Rodney Cassidy, Robert Morrison,

Joseph O’Neil, and Don Merkel.

The following exhibits were received into evidence: Joint

Exhibit s J1, J2, J3 - a through J3 - d, J4 through J8, J9 - a through

J9 - c, J10 - a through J10 - d, and J11 through J14; City’s Exhibits

1 through 7; Skipper’s Exhibits 1 and 2; and Petitioner’s

Exhibits 1 through 3, 7, 8, 10 through 13, 16, 19 through 21,

and 26 through 31. Petitioner’s Exhibits 4 through 6, 9, 14,

15, 17, 18, and 22 through 25, were offered into evidence, but

were not received.

The parties filed a Prehearing Stipulation on September 14,

2007. The stipulated facts in that filing are interspersed

through out the Findings of Fact set forth below.

An opportunity for public comment was provided at the final

hearing as required by the Bylaws. Public comment in opposition

to the project was presented by 16 neighboring property owners:

Joyce Keuling, Nancy Har per, Ralph Frisch, Mary Moody, Dennis

Canfield, Kathy Canfield, Elizabeth Kozumplik, Kai Parker,

Martin Guttenplan, Charles E.M. Watson, Amanda Lewis, Greg

Brown, Marie Bailey, Bob Lutz, Brigid Freeman, and Cheryl Rigby.

The three - volume Transcript of the final hearing was filed

on October 9, 2007. The parties were given 10 days from that

date to file proposed recommended orders (PROs). The City and

Skipper filed a joint PRO on October 19, 2007. The Association

filed a PRO on that same date. The PROs ha ve been given due

consideration.

FINDINGS OF FACT

A. Parties

1. Skipper is the applicant for the Type B site plan at

issue in this proceeding, No. TSP060026.

2. Skipper owns the property on which the project will be

developed, Parcel ID No. 21 - 23 - 20 - 41 7 - 000 - 0 (the project site).

3. The City is the local government with jurisdiction over

the project because the project site is located within the City

limits.

4. The Association is a voluntary neighborhood association

encompassing 343 lots in an establ ished single - family

residential neighborhood generally located to the northeast of

the Tharpe Street/Old Bainbridge Road intersection, adjacent to

the project site.

5. The purpose of the Association is to “preserve and

enhance the quality of life in [the] neighborhoods by taking

coordinated action on matters which advance the c ommon good of

all residents,” and one of the Association’s objectives is to

“protect[] the neighborhood from incompatible land use and

rezoning.”

B. The Project Site

(1) Generally

6. The project site is located to the north of Tharpe

Street, to the east of Old Bainbridge Road, and to the west of

Monticello Drive .

7. The project site is bordered on the south by the Old

Bainbridge Square shopping center. It is bordered on the north ,

east, and west by the residential neighborhood represented by

the Association.

8. The project site consists of 13.91 acres. The western

11.11 acres of the project site are zoned R - 4, Urban

Residential. The eastern 2.8 acres of the project site are

zon ed RP - 1, Residential Preservation.

9. The project site is roughly rectangular in shape. It

is 300 feet wide (north to south) and approximately 2,100 feet

long (east to west).

10. The project site is located within the Urban Service

Area (USA) boundary. The Tallahassee - Leon County Comprehensive

Pl an specifically encourages infill development within the USA.

11. The project site is designated as Mixed Use A on the

future land use map in the Comprehensive Plan. Residential

development of up to 20 units p er acre is allowed within the

Mixed Use A land use category.

12. The project site has been zoned R - 4/RP - 1 since 1997

when it was rezoned from Mixed Use A as part of the City - wide

rezoning of all mixed use properties. Multi - family residential

was an allow able use under the Mixed Use A zoning district, as

was small - scale commercial.

13. The R - 4 zoning is intended to function as a

“transition” between the commercial uses to the south of the

project site and the single - family residential uses to the north

of the project site. The R - 4 zoning district allows a wide

range of residential development at a density of up to 10 units

per acre .

(2) Surrounding Zoning and Uses

14. The property to the north, east, and west of the

project site is zoned RP - 1, and is de veloped with single - family

residences.

15. The neighborhood adjacent to the project site is

stable and well established. Most of the homes are owner -

occupied, and many of the residents are retirees.

16. The property to the south of the project site is z oned

UP - 1, Urban Pedestrian, and is developed with commercial uses,

namely the Old Bainbridge Square shopping center.

17. There is a n existing stormwater pond located on the

northwest portion of the shopping center parcel, adjacent to the

southern boundar y of the project site.

(3) Environmental Features on the Project Site

18. The project site is vacant and undeveloped, except for

several concrete flumes and underground pipes located in the

drainage easements that run north/south across the site. The

project site has been impacted by the surrounding development in

that household and yard trash has been found on the site.

19. The vegetative community on the project site is

considered to be upland hardwood forest. There are a number of

large trees on t he project site, including pecan, cherry, pine,

gum, and various types of oak trees. There are also various

exotic plants species on the site, such as kudzu. The

vegetative density is consistent throughout the project site.

20. The land in the general v icinity of the project site

slopes from south to north. The elevations along Tharpe Street

to the south of the project site are in 220 to 230 - foot range,

whereas the elevations in the neighborhood to the north of the

project site approximately one - quarter of a mile north of Tharpe

Street are in the 140 to 160 - foot range.

21. The elevations across the R - 4 zoned portion of the

project site range from a high of 214 feet on the southern

boundary to a low of 160 feet on the northern boundar y . The

southern pro perty boundary is consistently 30 to 40 feet higher

than the northern property boundary across the entire R - 4 zoned

portion of the project site.

22. The slopes are the main environmental feature of

significance on the project site. There are a total of 7 .32

acres (319,110 square feet) of regulated slopes -- i.e. , severe

or significant grades -- on the project site, which is more than

half of the total acreage of the site.

23. Th ere is a ravine that runs in a north weste rly

direction across the RP - 1 zoned portion of the project site.

The ravine is considered to be an altered wetland area and/or

altered watercourse.

24. The regulated slopes and altered wetland /watercourse

areas on the project site were depicted on a Natural Features

Inventory (NFI) submitt ed in September 2005, prior to submittal

of the site plan.

25. The Cit y’s biologists reviewed the original NFI, and

it was approved by the City on October 13, 2005.

26. A revised NFI was submitted in March 2007. The

revised NFI removed the man - made slop es from the regulated slope

areas, and made other minor changes based upon comments from the

staff of the G rowth M anagement D epartment .

27. The City ’s biologists reviewed the revised NFI, and it

was approved by the City on August 24, 2007.

28. The Associ ation questioned the change in the amount of

regulated slopes identified on the project site, but it did not

otherwise co ntest the accuracy of the NFI s .

29. Roger Wynn, the eng ineer of record for the project,

testified that the amount of regulated slopes on the proje ct

site changed because the man - made slopes were initially included

in the calculation but were later removed. That testimony was

corroborated by the James Lee Thomas, the engineer who

coordinated the G rowth M anagement D epartment’s review of t he

project.

C. The Project

(1) Generally

30. The project consists of 78 townhome/condominium units

in 14 two - story buildings.

31. It was stipulated that t he density of the project is

7.02 units per acre , which is considered “ low density ” under the

Comp rehensive Plan and the LDC. Th e stipulated density is

calculated by dividing the 78 units in the project by the 11.11

acres o n the project site in the R - 4 zoning district. If the

entire acreage of the project site was used in the calculation,

the project ’s density would be 5.61 units per acre.

32. All of the buildings will be located on the R - 4 zoned

portion of the project site. Five of the buildings (with 21

units) will have access to Monticello Road to the east by way of

Voncile Avenue. The remaining nine buildings (with 57 units)

will have access to Old Bainbridge Road to the west by way of

Voncile Avenue. There is no vehicular interconnection between

the eastern and western portions the project.

33. There is no vehicular access to the project from the

north or south. However, pedestrian interconnections are

provided to the north and south.

34. The only development on the RP - 1 zoned portion of the

project site is the extension of Voncile Avenue onto the site.

The remainder of the RP - 1 zoned prope rty will be placed into a

conservation easement.

35. The Voncile Avenue extension will end in a cul - de - sac

at the eastern boundary of the R - 4 zoned portion of the project

site. The extension will be constructed to meet the City’s

standards for public roa ds, and it will comply with the City’s

Street Paving and Sidewalk Policy.

36. The other streets shown on the site plan are

considered private drives because they are intended to serve

only the project. Those streets a nd the internal cul - de - sacs

have been designed to allow for the provision of City services -

– e.g. , trash, recycling, fire - – but they do not have to meet

the City’s Street Paving and Sidewalk Policy.

37. It was stipulated that the project is consistent with

the City’s Driveway and Street Co nnection Regulations, Polic i es

and Procedures.

38. It was stipulated that the project is consistent with

the City’s Parking Standards. The City’s Parking Standards

Committee approved tandem parking spaces and an increase in the

number of parking spaces i n the project.

39. It was stipulated that the project is consistent with

the City’s concurrency policies and regulations. A preliminary

certificate of concurrency was issued for the project on

March 9, 2007.

40. It was stipulated that the project is con sistent with

the City’s requirements for utilities -- e.g. , water, sewer,

stormwater, electricity, gas, cable -- and infrastructure for

those utilities. However, t he Association st ill has concerns

regarding various aspects of the project’s stormwater mana gement

system. See Part D(3), below.

(2) Site Plan Application and Review

41. O n August 4, 2005, the City issued Land Use Compliance

Certificate (LUCC) No. TCC060219, which determined that 94

multi - family residential units could be developed on the R - 4

zone d portion of the project site.

42. The LUCC noted that the RP - 1 zoned portion of the

project site “is not eligible for multi - family development,” and

that the “[a]ttainment of the full 94 units on the R - 4 zoned

property may be limited by the presence of regulated

environmental features that will be determined via an approved

Natural Features Analysis [sic] .”

43. On March 10, 2006 , Skipper submitted a Type B site

plan application for the project. The initial site plan

included 82 multi - family units in 13 buildings; an extension of

Heather Lane onto the project site to provide vehicular access

to the north; vehicular access to the west by way of Voncile

Avenue; and no vehicular access to the east.

44. The Tallahassee - Leon County Planning Department

(Pl anning Department) and other City departments expressed

concerns about the initial site plan in memoranda prepared in

advance of the April 10, 2006, DRC meeting at which the site

plan was to be considered.

45. A number of neighboring property owners sub mitted

letters to the DRC and other City departments detailing their

concerns about the project. A number of neighboring property

owners also sent “petitions” to Skipper urging him to reduce the

density of the project and to construct single - family detach ed

units rather than multi - family units.

46. The DRC “continued” -- i.e. , deferred consideration of

-- the site plan at its April 10, 2006, meeting as a result of

the concerns expressed by the City d epartments. The site plan

was also “continued” by the D RC at each of its next 10 meetings.

47. Skipper submitted a revised site plan in February 2007

that reduced the number of units in the project from 82 to 78;

eliminated the extension of Heather Lane onto the project site;

added the connection to Voncile A venue on the east ; and made

other changes recommended by City staff .

48. It is not unusual for a site plan to be revised during

the DRC review process. Indeed, Mr. Wynn testified that it is

“very uncommon” for the initial version of the site plan to be

approved by the DRC and that the approved site plan is typically

an “evolution” of the initial site plan. That testimony was

corroborated by the testimony of Dwight Arnold, the City’s land

use and environmental services administrator.

49. The City depart ments that reviewed the revised site

plan -- growth management, planning, public works, and utilities

-- each recommended approval of the site plan with conditions.

A total of 21 conditions were recommended, many of which were

standard conditions imposed on all site plans.

50. The DRC unanimously approved the site plan with the 21

conditions recommended by the City departments at its meeting on

March 26, 2007.

51. The DRC was aware of the neighborhood’s objections to

the project at the time it approved t he site plan. Mr. Arnold,

testified that the Growth M anagement D epartment was

“extraordinarily careful” in its review o f the site plan as a

result of the neighbor hood ’s concerns.

52. The site plan received into evidence as Joint Exhibit

J13 is an updated version of the revised site plan submitted in

February 2007. It incorporates all of the DRC conditions that

can be shown on the site plan. For example, the updated site

plan shows the “stub - out” at the southern prop erty boundary and

the pedestrian inter connections requested by the Planning

Department as well as the appropriately designated handicapped

parking spaces requested by the P ublic Works D epartment.

53. The site plan review process typically takes six

months, but Mr. Arnold testified that the pr ocess can take

longer depending upon the number of issues that need to be

addr essed. Mr. Arnold testified that there is nothing unusual

about the one - year period in this case between the submittal of

the site plan and its approval by the DRC.

D. Issues Raised by the Association

54. The primary issues raised by the Association in

opposition to the project are the alleged incompatibility of the

proposed multi - family development with the surrounding single -

family neighborhood; concerns about increased traf fic in and

around the neighborhood; concerns relating to the design of the

project’s stormwater management system and the potential for

stormwater run - off from the project to cause flooding in the

neighborhood; and the alleged inadequate protection of the

environmental ly sensitive features on the project site.

55. The public comment presented at the final hearing

generally focused on these same issues , but concerns were also

raised regarding the potential for increased crime and decreased

property values i n the neighborhood if college - aged students

move into the proposed multi - family units on the project site .

(1) Compatibility

56. Protecting the integrity of existing residential

neighborhoods from incompatib le development is a specifically

emphasized “ g rowth management strategy ” in the Land Use Element

of the Comprehensive Plan.

57. Policy 2.1.1 [L] of the Comprehensive Plan promotes

the protection of “existing residential areas from encroachment

of incompatible uses that are destructive to the characte r and

integrity of the residential environment.”

58. Paragraph (c) of Policy 2.1.1 [L] requires the

adoption of land development regulations to limit future higher

density residential development adjoining low density

residential areas. Such limitations “are to result in effective

visual and sound buffering (either through vegetative buffering

or other design techniques) between the higher density

residential uses and the low density residential uses; [and] are

to discourage vehicular traffic to and from higher density

residential uses on low density residential streets.”

59. These Comprehensive Plan provisions are implemented

through the buffe ring requirements in LDC Section 10 - 177, which

requires landscaping and fencing to be installed between

potentia lly incompatible land uses. The width of the buffer and

the amount of the landscaping required vary depending upon the

proposed and existing land uses.

60. The multi - family development proposed in the project

at 7.02 units per acres is not inherently in compatible with the

existing single - family neighborhood surrounding the project

site. Indeed, as noted above, b oth uses are considered low

density under the LDC and the Comprehensive Plan.

61. Multi - family residential development on the project

site fur thers the intent of the R - 4 zoning district in that it

provides for a “transition” between the commercial uses in the

Old Bainbridge Square shopping center to the south of the

project site and the single - family residential neighborhood to

the north of the project site.

62. The Planning Department expressed concerns about the

initial site plan’s compatibility with the surrounding

neighborhood in its March 24, 2006, memorandum to the DRC. The

memorandum recommended that the project be redesigned -- with a

lower density and/or clustered single - family lots or townhomes -

- in an effort to make it more compatible with the surrounding

neighborhood. The Planning Department does not have the

authority to require a project to be redesigned; it can only

recommend t hat the developer consider alternative designs.

63. The Planning Department does not have compatibility

conc erns with the revised site plan. Indeed, Mary Jean

Yarbrough, a senior planner with 10 years of experience with the

Planning Department, testifie d that “the site plan has changed

significantly from the first submittal” and that it now “meet[s]

the compatibility requirements of the comprehensive plan.”

64. Similarly, Wade Pitt, an expert in local land use

planning , testified that the project mee ts the compatibility

requirements in the Comprehensive Pla n and the LDC. Mr. Pitt

also testified the project furthers the intent of the R - 4 zoning

district by providing a transition between the commercial uses

to the south of the project site and the sing le - family

residential uses to the north of the project site.

65. Some of the changes in the site plan mentioned by Ms.

Yarbrough that led to the Planning Department no longer having

compatibility concerns with the project were the elimination of

the Heat her Lane interconnection; the reduction in the number of

units in the project; the reduction in the size of the eastern

stormwater pond; the inclusion of buffer s in the project; and

the elimination of the road through the project, which allowed

for more ex tensive conservation areas in the central portion of

the project site .

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

existing use is single - family and the proposed use is multi -

family. The width of a Type D buffer can range from 30 to 100

feet, bu t the wider the buffer, the less landscaping that is

required.

67. The site plan includes a 30 - foot wide buffer along the

project site's northern and western property lines , as well as

along the eastern border of the R - 4 zoning district on the

project si te . 1

68. The 30 - foot Type D buffer is require d to contain at

least 12 canopy trees, six understory trees, and 36 shrubs for

every 100 linear feet of buffer. The northern boundary of the

R - 4 zoned portion of the project site is approximately 1,600

feet lo ng, which means that there will be approximately 864

plants -- 192 canopy trees, 96 understory trees, and 576 shrubs

-- in the buffer between the proposed multi - family units and the

neighborhood to the north of the project site .

69. The Association conten ds that a 60 - foot Type D buffer

should have been required . However, Ms. Yarbrough persuasively

testified that the 60 - foot buffer actually provides less

buffering because it is not required to be as densely vegetated

as the 30 - foot buffer provided on the s ite plan.

70. Portions of t he buffer shown on the site plan overlap

the designated conservation areas that will be subject to the

conservation easement on the project site. Mr. Arnold testified

that it is not uncommon for buffer s to overlap conservation

areas.

71. The conservation areas will be disturbed in those

areas where the trees and shrubs are planted to comply with the

landscaping requirements for the buffer.

72. An eight - foot high fence will be constructed along the

northern and western prope rty lines. The site plan shows the

fence several feet inside the property line, within the

designated conservation areas. However, Mr. Arnold and City

biologist Rodney Cassidy testified that the fence w ill have to

be placed outside of the conservation ar eas along the property

lines.

73. LDC Section 10 - 177(f)(5) does not impact the placement

of the fence on the property line as the Association arg ues in

its PRO . That code section requires planting materials to be

located on the outside of the fence “[w]h en residential uses

buffer against other uses.” Here, the residential uses on the

project are not being buffered against “other uses” ; they are

being buffered against the same type of use, residential.

74. None of the six buildings on the northern side of the

project site directly abut the buffer. Only one of the

buildings is closer than 40 feet from the northern property

line, and three of the buildings are as much as 80 feet from the

northern property line.

75. The only development actually abutting the 30 - foot

buffer is the retaining walls for the stormwater management

ponds. The walls will be covered with vines to minimize their

aesthetic impact on the adjacent properties.

76. It is not necessary that the trees and shrubs in the

buffer reach mat urity before a certificate of occupancy is

issued; all that is required is that the appropriate type a nd

number of trees and shrubs are planted.

77. The project is adequately buffered from the existing

single - family residences to the north and west of th e project

site. The buffer requirements in the LDC have been met.

78. I n addition to the l andscaped buffer and fence,

impacts of the project on the surrounding neighborhood have been

mitigated by the placement of parking on the interior of the

site and by the elimination of the Heather Road interconne ction

that was in the initial site plan, which would have directed

more traffic from the project onto the neighborhood streets.

79. In sum, the more persuasive evidence establishes that

the project is not inherently incompatible with the surrounding

single - family uses and that its impacts on the surrounding

neighborhood have been mitigated as required by the LDC. Thus,

there is no basis to deny the site plan based upon the

incompatibility concerns raised b y the Association.

(2) Traffic Concerns

80. There is currently considerable traffic on Old

Bainbridge Road, particularly during rush hour. This makes it

difficult for residents of the neighborhood north of the project

site to turn left onto Old Bainbri dge Road from Joyner Drive.

81. The amount of traffic on Old Bainbridge Road is in no

way unique. There are many streets in the City that have

similar amounts of traffic, particularly during rush hour.

82. Vehicles leavi ng the project will utilize Von cile

Avenue, Joyner Drive, and Monticello Drive to access Old

Bainbridge Road or Tharpe Street. Those streets a re considered

collector roads, not local streets.

83. The number of vehicles expecte d to utilize the local

streets in the neighborhood to the n orth of the project site

will not be significant from a traffic engineering perspective.

84. The initial version of the site plan showed Heather

Lane being extended onto the project site and connected with a

street running through the project. This inter connection, which

is no longer part of the site plan, would have increased the

amount of traffic on the surrounding neighborhood streets

because Heather Lane runs through the middle of the neighborhood

to the north of the project site.

85. There are expe cted to be less than 50 trips entering

the eastern portion of the project during the afternoon peak

hour, and less than 20 trips entering the western portion of the

project during the afternoon peak hour. The exiting trips

during the afternoon peak hour a re expected to be about half

those amounts.

86. The number of trips generated by the project fall

below the one percent or 100 trip threshold in the City’s

concurrency regulations.

87. A preliminary certificate of concurrency,

No. TCM060026, was issue d for the project on March 9, 2007,

indicating that th ere will be adequate capacity of roads (and

other infrastructure) to serve the pro ject . No credible

evidence to the contrary was presented.

88. LDC Section 10 - 247.11 requires properties in the R - 4

zo ning district to have vehicular access to collector or

arterial streets if the density is greater than eight units per

acre. Where, as here, the density of the project is less than

eight units per acre, vehicular access to local streets is

permitted. In any event , as noted above, access to the project

site is by way of Voncile Avenue , which is considered a

collector road.

89. In sum, there is no basis to deny the site plan based

upon traffic concerns because the project satisfies the City’s

traffic conc urrency requirements.

(3) Stormwater Management/Flooding Concerns

90. Currently, stormwater run - off from the project site

flows uncontrolled across the site, down the slope towards the

neighborhood to the north that is represented by the

Association.

91 . The neighborhood had severe flooding problems in the

past. The City resolved those problems by reconfiguring the

stormwater management system and constructing several stormwater

ponds in t he neighborhood.

92. The Association is concerned that the stor mwater run -

off from the project will cause flooding in the neighborhood.

The Association also has concerns regarding the design of the

stormwater ponds and their proximity to the neighborhood.

93. The project site is located in the upper reaches of a

clo sed basin. As a result, the project’s stormwater management

system is subject to the additional volume control standards in

LDC Section 5 - 86(e), which requires the volume of post -

development stormwater run - off from the site to be no greater

than pre - devel opment run - off.

94. The project’s stormwater management system provides

volume control, rate control , and water quality treatment. The

system complies with all of the design standards in LDC Section

5 - 86, including the additional closed basin standards in

paragraph (e) of that section.

95. The project will retain all post - development

stormwater run - off on site by capturing it and routing it to two

stormwater ponds located in the north central portion of the

project site. Stormwater run - off will be capt ured by roof

collectors on the buildings and inlets on the streets and then

routed to the stormwater ponds through underground pipes.

96. The two stormwater ponds are designed with retaining

walls on their north/downhill sides. The walls will have a

spre ad footing, which was a design change recommended by Mr.

Thomas to improve the functioning of the ponds. The walls will

be eight to nine feet at their highest point, which is less than

the 15 - foot maximum allowed by LDC Section 5 - 86(f)(7), and they

will b e covered with vegetation as required by that section.

97. Access to the stormwater ponds for maintenance is

provided by way of the 20 - foot wide “pond access” easements

shown on the site plan for each pond. These easements meet the

requirements of LDC Se ction 5 - 86(g)(2).

98. The stormwater p onds are roughly rectangular in shape,

rather than curvilinear. The shape of the ponds is a function

of the retaining walls that are required becaus e of the sloping

project site.

99. The stormwater ponds have been visually integrated

into the overall landscape design for the site “to the greatest

extent possible” as required by LDC Section 5 - 86(f)(10). The

south side of the ponds will be contoured with landscaping, and

the walls around the ponds will be covered wi th vegetation.

100. The final design of the stormwater ponds and the

retaining walls is evaluated during the permitting phase, not

during site plan review. The walls must be designed and

certified by a professional engineer, and the construction plans

su bmitted during the permitting phase will include a detailed

analysis of the soil types on the site to determine the

suitability of the walls and to ensure the proper functioning of

the ponds.

101. The project’s stormwater management system will also

colle ct and control the overflow stormwater run - off from the

existing stormwater pond on the Old Bainbridge Square shopping

center site. That run - off currently over flows out of an

existing catch basin on the eastern portion of the project site

and flows uncont rolled across the project site, down the slope

at a rate of 6.7 cubic feet per second (CFS). After the project

is developed, that run - off will flow out of a redesigned c atch

basin at a rate of 0.5 CFS, down the slope through a

conservation area , to a grad ed depression area or “s ump ” on the

northern property line, and ultimately to the existing

stormwater management system along Heather Lane.

102. Mr. Arnold and Mr. Cassidy testified that the reduced

flow down the slope will benefit the conservation area b y

reduci ng erosion on the slope. Mr. Cassidy further testified

that he was not concerned with the flow through the conservation

easement forming a gully or erosion feature or otherwise

alter ing the vegetation in that area, and that potential impacts

cou ld be addressed in a management plan for the conservation

area, if necessary.

103. T he stormwater ponds and other aspects of the

project’s stormwater management system w ill be privately owned

and maintained. However, t he operation and maintenance of th e

system will be subject to a permit from the City, which must be

renewed every three years after an inspection. The City can

impose special conditions on the permit if deemed necessary to

ensure the proper maintenance and function of the system.

104. Th e more persuasive evidence establishes that the

project’s stormwater management system meet s all of the

appli cable requirements in the LDC. On th is issue, t he

testimony of Mr. Thomas and Mr. Wynn was more persuasive than

the stormwater - related testimony p resented on behalf of the

Association by Don Merkel. Mr. Merkel, a former engineer,

“eyeballed” the project site and the proposed stormwater

management system ; he did not perform a detailed analysis or any

calculations to support his criticisms of the pro ject’ s

stormwater management system.

105. In sum, there is no basis to deny the site plan based

upon the stormwater management/flooding concerns raised by the

Association.

(4) Protection of Environmental Features on the Project Site

106. The NFI is requ ired to depict all of the regulated

environmental features on the site, including the regulated

slopes. The revised NFI approved by the City in August 2007

accurately depicts the environmentally sensitive features on the

project site.

107. The environmen tal features regulated by the City

include “severe grades,” which are slopes with grades exceeding

20 percent, and “significant grades,” which are slopes with 10

to 20 percent grades.

108. The project site contains 5.74 acres (250,275 square

feet) of “sig nificant grades ” and 1.58 acres (68,835 square

feet) of “severe grades .” Those figures do not include man - made

slopes in the existing drainage easements across the site, which

are not subject to regulation.

109. There are 0.76 acres (33,056 square feet) of severe

grades on the R - 4 portion of the project site that are regulated

as significant grades because of their size and location. Thus,

there are a total of 6.50 acres (283,331 square feet) of slopes

regulated as significant grades on the project site.

110. LDC Section 5 - 81(a)(1)d. provides that 100 percent of

severe grades must be protected and placed in a conservation

easement, except for severe grades that are less than one -

quarter of an acre in size and located within an area of

significant grades that are regulated as significant grades.

111. LDC Section 5 - 81(a)(2)d. provides that a minimum of

50 percent of significant grades must be left undisturbed and

placed in a conservation easement.

112. LDC Section 5 - 81(a)(2)d.1. provides that t he

sign ificant grades to be protected are those areas “that provide

the greatest environmental benefit as determined by the director

[of growth management] (i.e., provides downhill buffers,

protects forested areas, buffers other protected conservation or

preserva tion areas, or provides other similar environmental

benefits).”

113. The Environmental Impact Analysis (EIA) included with

the site plan shows that 100 percent of the severe slopes that

are regulated as such are protected and will be placed in a

conserva tion easement.

114. The EIA shows that a total of 3.05 acres (133,002

square feet) of the significant grades on the project site will

be impacted. That figure is 46.9 percent of the total

significant grades on the project site, which means that 53.1

per cent of the significant grades will be undisturbed and placed

into a conservation easement.

115. It is not entirely clear what environmental benefit

is provided by some of the smaller conservation areas shown on

the site plan, such as those between sever al of the buildings,

but Mr. Cassidy testified that he took the criteria quoted above

into consideration in determining that the site plan meets the

applicable code requirements and is “approvable ." Moreover, Mr.

Arnold testified that similar “small pocke ts” of conservation

areas are located in other areas of the City and that fencing or

other appropriate measures can be taken to ensure that the areas

are not disturbed.

116. The EIA will be approved simultaneously with, and as

part of the site plan.

117 . The conservation easement is not required during site

plan review. Rather, LDC Section 5 - 81(b) requires the easement

to be recorded no later than 30 days after commencement of site

work authorized by an environmental permit.

118. LDC Section 5 - 81(a)(2 )d.1. provides that d evelopment

activity in the area subject to the conservation easement is

prohibited, except for “vegetation management activities that

enhance the vegetation and are specifically allowed in a

vegetation management plan approved by the d irector [of growth

management].”

119. LDC Section 5 - 81(b) provides that a management plan

for the area subject to a conservation easement “may be approved

provided the activity does not interfere with the ecological

functioning of the conservation or pres ervation area and the

activities are limited to designs that minimize impacts to the

vegetative cover.” That section further provides that the

management plan is to be approved “during the [EIA].”

120. Mr. Cassidy testified that an approved management

pl an is required in order to plant trees in a conservation area.

He further testified that impacts related to the construction of

the buffer fence could be addressed in the management plan, if

necessary.

121. No management plan has been prepared or approve d for

the project even though there will be planting in the

conservation areas that overlap the 30 - foot Type D buffer.

122. In sum, more persuasive evidence establishes that the

regulated environmentally sensitive features on the project site

a re accurate ly depicted in the NFI; that the required amounts of

regulated slopes are protected on the site plan; and that ,

subject to approval of a management plan for the plantings in

the buffer as part of the EIA, the project complies with the

requirements of the L DC relating to the protection of

environmentally sensitive features.

E. Other Issues

123. The final hearing was properly noticed, both to the

parties and the general public. Notice of the final hearing was

published in the Tallahassee Democrat on Sept ember 9, 2007.

124. An opportunity for public comment was provided at the

final hearing, and 16 neighboring property owners spoke in

opposition to the project.

125. A number of the concerns raised by the Association

and the neighboring property owners wh o spoke at the hearing are

permitting or construction issues, not site plan issues. For

example, issues related to the engineering specifications for

the stormwater pond retaining walls and issues related to the

protection of the conservation areas from c onstruction impacts

will be addressed and monitored as the project moves through the

permitting process. Mr. Arnold tes tified that Association and

neighboring property owners are free to provide input and

express concerns on those issues to the appropriat e City

departments as the project moves thro ugh permitting and

construction.

CONCLUSIONS OF LAW

126. DOAH has jurisdiction over the parties to and subject

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

also Bylaws, art. IX, § 1.

127. The P lanning Commission is responsible for taking

final action on the site plan for the project based upon the

record developed at the final hearing and this Recommended

Order. See Bylaws, art. IX, § 1(b)1.b.

128. Skipper has the initial burden of proof in th is de

novo proceeding. See Bylaws, art. IX, § 5. If Skipper presents

competent evidence supporting approval of the site plan, then

the burden shifts to the Association to “rebut the evidence

submitted by [Skipper].” Id.

129. I n order to “rebut” the e vidence submitted by

Skipper, i t is not enough for the Association to simply present

competent evidence in support of its position. Rather, to meet

its burden of proof under the Bylaws, the evidence presented by

the Association must be found more persuasi ve than the evidence

presented by Skipper and the City in support of the project .

130. The Association was provisionally determined to have

standing to participate in this proceeding, but it was required

to prove its standing at the final hearing. See By laws, art.

IX, § 1(j) and (m).

131. The Association proved its standing. The evidence

presented at the final hearing establishes that members of the

Association own property abutting the project site; that traffic

from the project will utilize the street s in and around the

neighborhood represented by the Association; that the

neighborhood is immediately downhill from the project site and

could be at risk for flooding if stormwater run - off is not

properly retained on the project site; and that the relief

s ought by the Association in this proceeding is consistent with

the purpose of the Association and is of the type appropriate

for a neighborhood association to seek on behalf of its members.

See also Respondents’ Joint PRO, at ¶ 68 (“Petitioners [sic]

prov ed their standing at hearing.”)

132. Site plan approvals are governed by LDC Section 9 -

153, which provides:

In deciding whether to approve, approve with

conditions, or deny a site plan, the entity

with authority to render such a 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 spe cific requirements on site plans

and development have been met.

133. With respect to LDC Section 9 - 153(1), the more

persuasive evidence establishes that the site plan meets the

applicable zoning standards and requirements. The project is

low density inf ill development located within the USA; its

density is less than the maximum allowed in the R - 4 zoning

district; and it contains the required buffers.

134. With respect to LDC Section 9 - 153(2), the more

persuasive evidence establishes that the site pla n m eets the

applicable environmental management criteria in LDC Chapter 5.

The environmentally sensitive features on the project site were

properly identified on the revised NFI; all of the severe grades

and more than 50 percent of the significant grades on the

project site are being preserved, as required; conservation

easements will be placed on all of the environmentally sensitive

areas not impacted by the proposed development , including almost

the entire RP - 1 zoned portion of the site; and the stormwater

management system meets the closed basin requirements in that

post - development run - off from the project site will not exceed

the pre - development run - off.

135. That said, the approval of the site plan should be

further conditioned on the approval of a mana gement plan for the

conservation areas that will be disturbed through the plantings

required in the Type D buffer. See LDC § 5 - 81(b) (requiring the

management plan to be approved as part of the EIA, which

according to Mr. Arnold, is approved simultaneousl y w ith the

site plan) .

136. With respect to LDC Section 9 - 153(3), the more

persuasive evidence establishes that the site plan meets the

requirements of all other regulations applicable at this stage

of development review . For example, t he project is cons istent

with the City’s concurrency policies and regulations; the City’s

Driveway and Street Connection Regulations, Polic i es and

Procedures; the City’s parking standards; and the City’s

requirements for utilities and infrastructure.

137. In sum, Skipper m et its burden to prove that the site

plan meets the requirements of LDC Section 9 - 153. The evidence

presented by the Association in opposition to the project failed

to rebut the evidence presented by Skipper and the City .

138. That said, the undersigned is not unsympathetic to

the concerns raised by the Association and the neighboring

property owners who spoke at the final hearing. Certainly, it

would have been better for all concerned if the parties could

have reached an amicable resolution of this case . However, it

is not the undersigned’s role to craft an alternative site plan

or some other sort of equitable resolution of the parties’

dispute where the evidence establishes that the site plan put

forth by Skipper meets the applicable regulatory require ments.

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 for the Park Terrace Townhomes project, subject to the

21 conditions recommended by the DRC and additional conditions

requiring:

1. the eight - foot high buffer fence to be located on the

property lines, outside of the designated conservation areas;

and

2. a management plan to be approved for the conservation

areas that will be disturbed through the plantings required in

the Type D buffer.

DONE AND ENTERED this 7th day of November, 2007, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

Th e DeSoto 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 7th day of November, 2007.

ENDN OTE

1 / A 10 - foot wide buffer is proposed on the southern property

line, adjacent to the Old Bainbridge Square shopping center.

The Association did not take issue with that buffer, and it

appears to be consistent with t he Type B buffer standards

required between new multi - family development and existing

commercial uses.

COPIES FURNISHED :

Roxanne M. Manning

Tallahassee - Leon County Planning Department

300 South Adams Street, 4th Floor

Tallahassee, Florida 32301 - 1721

C hris H. Bentley, Esquire

Rose, Sundstrom & Bentley, LLP

Post Office Box 1567

Tallahassee, Florida 32302 - 1567

Linda R. Hudson, Esquire

Office of the City Attorney

City Hall, Box A - 5

300 South Adams Street

Tallahassee, Florida 32301 - 1731

Murray Wadsworth , Jr., Esquire

Gardner, Wadsworth, Duggar, Bist

& Wiener, P.A.

1300 Thomaswood Drive

Tallahassee, Florida 32308

Joseph T. O'Neil

Parkside - Park Terrace

Neighborhood Association

720 Voncile Avenue

Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 calendar days 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 Cle rk of the Planning

Commission. Id.