07-002467 Timber Homeowners` Association Inc., Brian Moran, And Christy Baldwin vs. City Of Tallahassee And Department Of Environmental Protection Status: Closed Recommended Order on Monday, June 2, 2008.

Summary: The applicant proved in City`s quasi-judicial proceeding, if still available, that it is in the public`s interest to abandon portion of Mission Road to protect pedestrians and for other reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMBER HOMEOWNERS' ASSOCIATION )

INC., BRIAN MORAN, and CHRISTY )

BALDWIN, )

)

Petitioners, )

)

vs. ) Case No. 07-2467

)

CITY OF TALLAHASSEE and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On March 19, 20, and 26, 2008, a quasi-judicial hearing was

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

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: William H. Davis, Esquire

Dobson, Davis & Smith

610 North Duval Street

Tallahassee, Florida 32301-1149

For Respondent: City of Tallahassee:

Linda R. Hudson, Esquire

Jonathan P. Sanford, Esquire

Office of the City Attorney

300 South Adams Street, Box A-5

Tallahassee, Florida 32301-1731

For Respondent: Department of Environmental Protection:

Lisa M. Raleigh, Esquire

Jonathan Alan Glogau, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether the application filed by

the Florida Department of Environmental Protection (DEP) for

abandonment of a segment of Mission Road, from the Ocala Drive

intersection to a point east of Yonview Drive, should be granted;

and, if so, what conditions should be placed on the abandonment.

PRELIMINARY STATEMENT

On March 29, 2007, Wilson Miller Engineering filed the

pending application for abandonment on behalf of DEP and the

Florida Department of State, which own and operate Mission San

Luis ("the Mission"), a National Historic Landmark and

archeological site and park that borders the length of roadway

subject to the abandonment application on both the north and

south side of Mission Road.

On or about May 15, 2007, Notice of the proposed abandonment

was provided. Under the version of Section 8-1, Land Development

Code (LDC), in force and effect at the time, abandonment

applications were subject to requests for quasi-judicial

proceedings. Petitioners filed a Petition for Quasi-Judicial

Proceedings with the Planning Commission on May 25, 2007.

The matter was referred to DOAH, and a final hearing was

scheduled for September 20-21, 2007. After two continuances

agreed to by all parties, the hearing was re-scheduled for

February 26-27, 2008. On February 14, 2008, Petitioners filed an

Emergency Motion for Continuance, which included a request for

sanctions against DEP, on grounds that DEP intended to present

evidence that had not been disclosed in discovery. Both the City

and DEP opposed the Emergency Motion for Continuance, which was

heard on February 15, 2008. Based on the oral arguments

presented and the matters discussed during the hearing, the

Emergency Motion for Continuance was granted, and the final

hearing was re-scheduled for March 19-20, 2008. Ruling on the

request for sanctions was reserved. When the final hearing could

not be completed in the time allotted, March 26, 2008, was

scheduled for completion of the final hearing.

As required by the Order of Pre-Hearing Instructions entered

on July 9, 2007, and subsequently modified, the parties filed a

Pre-Hearing Stipulation on March 13, 2008.

At the final hearing, the following exhibits were admitted:

Joint Exhibits 1, 3, 22-28, 30–34, 37 (excerpts), 38, 39

(deposition exhibits 3, 4, 8, 10, 14 and 15 only), 41, 45

(deposition exhibits 1 and 3 only), 47 (deposition exhibits 1, 3,

6 and 8 only), 49-51, 54, 55, 57, 58, 59, 60, 61 and 64;

Petitioners' Exhibit 1; and City Exhibits 1–11. DEP called: the

Mission's Executive Director, Bonnie McEwan, Ph.D., and Chris

Brockmeier, an expert traffic engineer. The City called: its

Fire Chief, Cynthia Dick; its City Attorney, James English;

Police Department Captain Kenneth Sumpter; Wayne Tedder, its

Director of Planning; and Gabriel Menendez, its Director of

Public Works. The Petitioners called: Wayne Coloney, an expert

traffic engineer; Richard Boutin, an expert property appraiser;

Christine Baldwin; David Vaughn; and Brian Moran.

After presentation of the evidence, the parties requested

and were granted 20 days from the filing of the Transcript to

file proposed recommended orders. The six-volume Transcript was

filed on April 9, 2008. The parties' timely-filed proposed

recommended orders have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

Proposed Abandonment and Vicinity

1. The eastern terminus of Mission Road is at Ocala Road.

At one time, Mission Road intersected Ocala Road and extended

farther east along the alignment of Tennessee Street. However,

when Tennessee Street was extended farther west, the intersection

of Tennessee Street and Ocala Road was moved slightly south of

the juncture of Ocala Road and Mission Road. Now at the junction

of those roads, Mission Road is designed to have only a right

turn in from Ocala Road southbound, and a right turn out from

Mission Road onto Ocala Road, headed south.

2. Mission San Luis (Mission) is bisected by Mission Road

near its eastern terminus at Ocala Road. While the Mission is

accessible from Mission Road, its main entrance is on Tennessee

Street just west of Ocala Road. The Mission has administrative

offices and an archeological laboratory on the south side of

Mission Road, while the re-created Mission and Apalachee Village,

along with most of the archeological remains, and visitor

parking, are on the north side of Mission Road.

3. Yonview Drive joins Mission Road from the south. The

juncture of those two roads marks the western terminus of the

part of Mission Road that is the subject of the application for

abandonment; Ocala Road marks the eastern terminus of the

proposed abandonment. All of the land on either side of this

part of Mission Road is owned by the State and is part of the

Mission.

4. Proceeding west from Yonview, the Mission is on the

northeast side of Mission Road, which provides access to the

current parking lot for the Mission and the current visitor

center, which is an adaptive use of a house built in 1938. Along

that stretch of Mission Road, The Timbers condominium development

is on the southwest side of Mission Road. Just west of the

Mission property, San Luis Road intersects Mission Road. To the

north of Mission Road, San Luis is a public road that proceeds

north, past Leon County's San Luis Park (which is on the east

side of the road), and residential neighborhoods to the west

side, to where San Luis Road intersects Tharpe Street. To the

south of Mission Road, aligned with San Luis Road, is an entrance

to The Timbers. Sometimes referred to as an extension of San

Luis Road, the roadway within The Timbers actually is private and

serves as access to The Timbers condominium units; it continues

through The Timbers and continues between other properties to the

development's other entrance on White Drive. As Mission Road

proceeds west from San Luis Road, the rest of The Timbers is on

its south side; on its north side, Solana Drive joins it from the

residential neighborhood to the north. Solana Drive is a short

street between San Luis Road and Mission Road. The northern

terminus of Solana Drive is near the southern end of the County

Park.

Petitioners and Their Interests

5. Petitioners are The Timbers Homeowners’ Association,

Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually.

The individual Petitioners each own one or more units within The

Timbers. Ms. Baldwin has resided there for nearly ten years.

The HOA is charged with representing the interests of the owners

and residents of The Timbers. It owns and has responsibility for

the repair, maintenance, and improvement of the common areas

within the development. Mr. Moran and Ms. Baldwin are officers

of the HOA.

6. The Timbers is a 223-unit condominium community that

fronts, along its entire length, the south side of Mission Road

between White Drive and Yonview Drive. A portion of this

frontage is located directly across Mission Road from what is now

Mission San Luis. The private road within The Timbers between

Mission Road and White Drive is how The Timbers connects to the

public road system. As it fronts Mission Road, The Timbers is a

pleasant, wooded community of multiple condominium structures,

each of which fronts on a side street connected to its private

"San Luis Road."

7. The Timbers is conveniently located for easy access to

Florida State University, Florida A&M University, and other

points to the south or east of The Timbers (including downtown

Tallahassee). A significant number of residents of The Timbers

use Mission Road by turning right onto Mission Road, which takes

them to a right turn onto Ocala Road, with no stop sign, stop

light, or significant intersection in between. From there, they

can go straight south on Ocala Road or turn east or west on

Tennessee Street. If the abandonment application is granted,

that route would be eliminated, and there would be two remaining

ways to leave The Timbers--via the White Drive exit, or by making

two left turns, one onto Mission Road and the second, after a

stop sign, onto White Drive. Meanwhile, drivers traveling east

(toward town) on Mission Road from virtually all points west of

The Timbers (and thus west of White Drive) on Mission Road, would

take a right curve onto White Drive from Mission Road but they

would do so with the right-of-way or, if signalized, a traffic

light timed to give them a “longer green” preference. Those

Timbers residents, owners, and visitors exiting at White Drive

would have to negotiate their left turn without the right-of-way

and against whatever increased traffic might be introduced onto

White Drive if Mission Road were closed. From there, depending

on the ultimate destination, traffic could either go straight on

White Drive towards Pensacola Street or turn left onto Tennessee

Street to reach the Tennessee Street/Ocala Road intersection.

The intersection at White Drive and Tennessee Street is

signalized but is not consistent with current design standards in

that it has an offset center line.

8. According to the planned unit development documents for

The Timbers, the White Drive entrance was supposed to be the main

entrance to the development. However, the Mission Road entrance

has come to function more like the actual “main” and is more

attractive aesthetically. Petitioners have spent significant

effort and money in beautifying and otherwise maintaining its

private extension of San Luis Road through curbing, landscaping,

signage, etc. The part of the road that joins The Timbers to

White Drive is not as well constructed and is not bounded by The

Timbers but rather by other properties. It also is where the

garbage dumpsters for the development are located. (On the other

hand, the mailboxes for the development also are located off that

part of the private road.)

9. The closure of Mission Road probably will shift some

internal Timbers traffic from the Mission Road entrance to the

White Drive entrance. It also is possible that some external

traffic coming south on San Luis Road might use the private

extension of the road within The Timbers as a "short-cut" to

White Drive. However, the road through the Timbers may not prove

to be a desirable "short-cut" because it is a lower-quality road,

has potholes, and is not designed for through-traffic but rather

as a feeder road for the parking areas of the development. There

are three stop signs; the turns are tight; and cars sometimes are

parked along the side of the road. As a result, "friction" would

slow through-traffic and discourage use of the road as a cut-

through.

10. The design of San Luis Road also makes it less likely

that The Timbers would be used as a short-cut to White Drive.

There is a hard right turn in the road signed for 15 miles per

hour that people tend to avoid by turning onto right onto Solana

Drive.

11. Many residents walk within The Timbers, including to

the mailboxes, to the tennis courts, and to the dumpsters, or to

walk their dogs (perhaps in the green space created by an

abandoned railroad right-of-way in the vicinity) on the western

side of The Timbers. If traffic increases on that side of the

private extension of San Luis Road, both the safety and the

subjective experience of those pedestrians would be adversely

affected to some extent. However, those effects are speculative.

12. A resident-controlled gate system for the Mission Road

entrance to prevent cut-through traffic likely would cost The

Timbers HOA in the neighborhood of $15,000. Associated costs for

telephone connections to each of the units, electrical service,

and maintenance would likely range from $75 to $80 per

residential unit per year. But such a gate is not desired by

Petitioners as it would constitute a significant inconvenience

for Petitioners and others who reside in or visit The Timbers.

Should the Timbers elect to install sidewalks along its San Luis

Road to accommodate increased or shifted traffic within The

Timbers, the costs associated with that could reasonably exceed

$110,000, including engineering, permitting, utilities, and

remediation. The owners of units within The Timbers would

ultimately bear the costs of any needed improvements or

additional maintenance that would result from a closure of

Mission Road. However, it is speculative whether such measures

will be needed or actually undertaken.

13. It is possible that the owners of units in The Timbers

might suffer some diminution in property value as a result of the

proposed abandonment. According to a property appraiser, Richard

Boutin, there will be diminution in value of approximately one

percent of the value of units, which ranges between $120,000 and

$150,000, that would materialize over time, taking two-to-five

years to occur. Whether such a diminution in value actually will

occur is uncertain.

14. As described above, due to the location of The Timbers,

the proposed abandonment will adversely affect Petitioners more

than it will adversely affect most of the rest of the general

public. Most of the greater adverse effects on Petitioners will

be similar in kind to the adverse effects on most of the general

public. At least one of the greater effects on Petitioners also

is different in kind -- namely, some drivers probably will use

Petitioners' private road as a cut-through. See Findings 9-10,

supra .

Standards for Abandonment Applications

15. A guiding principle for all City Commission action is

to act in the public interest. The City Commission must act in

the public interest, whether stated in a regulation or not,

including when acting on an application for abandonment of right-

of-way.

16. City Commission Policy 410 has been used as a guide for

reviewing abandonment applications. Policy 410 provides:

1. The City of Tallahassee will not consider

any application for right-of-way abandonment,

if the subject right-of-way is currently

being used by the City, or if the City has

any plans to use the right-of-way at some

point in the future.

2. Abandonment of a right-of-way must be

demonstrated to be in the best interest of

the general public. Neither abandonment of a

right-of-way solely for the purpose of

placing it on the tax rolls in its current

state, nor abandonment of a right-of-way

solely to benefit an abutting property owner,

is considered to be sufficient to meet the

test of "in the public’s best interest".

3. Abandonment of right-of-way automatically

reverts only to abutting property owners with

one-half of the right-of-way going to each

owner by operation of law upon adoption of a

City ordinance.

4. Provide applicant with a Quit [sic] Deed

for recording, if the right-of-way is

abandoned.

Unlike ordinances, policies can be waived. Notwithstanding

paragraph 1 of the Policy, the evidence was clear that the City

abandons right-of-way that is in use, either explicitly or

implicitly waiving paragraph 1. Over 90 percent of the

abandonment applications processed by the City have been for

rights-of-way that are currently being used, including some that

were being used heavily. The actual standards for determining

whether to abandon a road have been found in the other parts of

Policy 410, especially in paragraph 2. Although Policy 410 had a

sunset date of March 25, 1997, it has not been replaced, and the

Planning Department continued to use it as a guide for review of

abandonment applications.

17. On February 23, 2005, the City Commission reviewed

proposals from the Planning Department for modifications to the

City’s abandonment policies, procedures, and fee requirements.

The proposed modifications included revised procedures, added

definitions, and added the following specific review criteria:

(a) The approval of the application shall

not create any safety or public health

hazard, including any environmental health

hazard;

(b) The approval of the application shall

not result in the preclusion of right-of-way

or fee simple access to any existing

parcel/lot of record;

(c) The approval of the application shall

not result in the preclusion of access to any

publicly-maintained facility or

infrastructure;

(d) The approval of the application shall

not create any condition inconsistent with

the Tallahassee-Leon County Comprehensive

Plan, including the Long Range Transportation

Plan included therein;

(e) The approval of the application would

not eliminate or preclude a street or

bicycle/pedestrian interconnection that the

City Commission intends to retain;

(f) The approval should not adversely affect

service access required for any official

public safety, utility service, waste

collection service provider; the United

States Postal Service; Leon County Schools

(school buses); or TalTran.

On February 23, 2005, the City Commission approved the

modifications and approved the Planning Department's

recommendation to repeal Policy 410 since the modification would

be more definitive. The City Commission approved the Planning

Department’s recommendations, and directed staff to draft an

ordinance incorporating the proposed modifications to the

abandonment policies, procedures, and fee requirements and to

bring the ordinance back before the Commission for adoption. As

of this date, due to staffing constraints, the Planning

Department has not taken an ordinance back to the City Commission

for review and action.

Conditions of Abandonment

18. The City's Planning Department has placed several

conditions on the proposed abandonment to address issues raised

by the reviewing departments during the processing of abandonment

applications. Placing conditions on abandonment of right-of-way

is authorized and common.

19. A standard condition for abandonment is that easements

be retained by the City for any utilities. It also is standard

to require the maintenance of adequate emergency access for the

fire and police departments. Also standard, a vehicular turn-

around will have to be constructed at the new eastern terminus of

Mission Road.

20. To connect with other bicycle-pedestrian trails in the

area and enhance these modes of transportation and the City's

Bicycle-Pedestrian Master Plan, the Planning Department

recommends that a bicycle/pedestrian easement around the

perimeter of the Mission be dedicated to the public as a

condition of the abandonment.

21. Finally, the Planning Department recommends that the

proposed abandonment be conditioned on payment by the State for

signalization at the Mission Road and White Drive intersection

if, within 12 months of the abandonment, traffic increases to a

point where signalization there is warranted.

22. In testimony, the Executive Director of the Mission,

Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian

easement for the City, and DEP did not oppose either the standard

or recommended conditions of abandonment.

Effects of New Mission Visitor Center on Pedestrian Safety

23. The building that currently functions as a Visitor

Center for the Mission is an adaptive use of a 1938 house.

Limited restrooms are in a separate building next to the house.

Currently, due to the lack of accommodations, frequent requests

to hold major events, weddings, receptions, and special functions

must be denied.

24. Currently, Mission staff must cross Mission Road

between their offices and the public northern section. Staff

crossings are a cause for concern because of the limited sight-

line distance around the curve in Mission Road to the west. They

are warned regularly to use caution, but no other measures to

protect staff have been implemented or requested to date.

Currently, visitors to the Mission drive to the public parking

area on the northern portion of the site. Visitors then remain

on the north side of Mission Road until they return to their

vehicles to leave.

25. In 2006, the Florida legislature appropriated funds to

build a new Visitor Center at the Mission. This Center will be

in excess of 20,000 square feet and will include public

classrooms, a place to show orientation films, exhibits, 20

public toilets, and a meeting room accommodating 250 people. The

new Visitor Center will be a vast improvement over the current

facility.

26. The evidence was that the best location for the new

Visitor Center is on the western portion of the Mission property

south of Mission Road. The site was selected because it is

relatively flat and because the relatively few archaeological

remains there have been mitigated. The plans are to have people

enter the Mission using the driveway entrance on Tennessee

Street, park around the new Visitor Center, proceed through the

Visitor Center for their orientation, and then walk to the main

area of the park, where the re-created Fort, Mission, Apalachee

Village, and rich archeological sites are located. If Mission

Road is not abandoned, the visitors would be crossing just east

and quite close to a sharp curve in the relatively narrow,

canopy-like road, which has deep-cut banks.

27. Petitioners suggest that the new Visitor Center could

be put on the northern part of the site. Indeed, before the

State acquired the land on the south side of Mission Road where

it now intends to build the new Visitor Center, the State was

planning to build it on the north side of the road. However, the

evidence was that the recently acquired site on the south side of

the road is better suited and would be a much greater benefit to

the general public. In any event, the evidence was that the

State is going forward with its plans for the new Visitor Center

and already has proceeded with obtaining environmental and

building permits for construction on the preferred site.

28. A conservative count of on-site visitation at the

Mission last year was 30,239. There are activities year-round,

including costume interpretation, a living history program,

special events, and camps, including every teacher planning day

and break. Most of the Mission programming is geared towards

children, and approximately ninety percent of the visitors are

children.

29. The State hopes and expects that visitors to the

Mission will increase dramatically with construction of the new

Visitor Center. The State continues to expect that a high

percentage of these visitors will be children. The application

for abandonment is based on the reasonable prospect of increased

future use of the facility. The application for abandonment

seeks to protect the expected increased number of visitors,

including many groups of children, and staff from the danger of

having to cross back and forth across Mission Road. Pedestrian

safety in connection with the use of the planned Mission

facilities is a clear benefit to the general public. The

abandonment application also would enable the State to optimize

the functioning of the Mission, which also benefits the general

public.

Negative Effects of Abandonment

30. At the same time, granting the application for

abandonment would cost the general public in other ways, which

the Petitioners point out.

31. The segment of Mission Road proposed to be abandoned

has a "canopy-road-like feel" (although it is not officially

designated as a canopy road). The public no longer would be able

to experience driving on it.

32. A traffic study done by Wilson Miller on behalf of the

State confirmed that traffic on the segment of Mission Road in

question is relatively lightaffic count data from 2008

showed that the annual average daily traffic ("AADT") was 1,500

vehicles a day, including both directions. Approximately 57

percent of the 1,500 cars move in an easterly direction. By

comparison, the AADT for other area roads in the vicinity is

significantly higher: 9,000 vehicles for White Drive; 34,000 for

Ocala Road; and 42,500 for Tennessee Street.

33. Mission Road is classified as a minor collector road.

The capacity of a minor collector is between 13,000 and 14,000

AADT. The AADT established by the Wilson Miller study is only

about 10% of the road's capacity, which is very light for a minor

collector road.

34. If the application for abandonment is granted, traffic

will shift to other roads. However, the Wilson Miller study was

not an origin and destination study and was not sufficient to

determine with any precision how the traffic would shift. For

that reason, Petitioners' attempt to use the traffic study to

identify and quantify the costs associated with such travel

shifts was not convincing. Some increase in traffic on other

area roads will occur, but it is speculative based on this record

where the increases might occur, how large they will be, and

whether they will result in the need for taxpayer-funded road and

traffic construction.

35. Petitioners contend that the proposed abandonment will

shift some eastbound traffic on Mission Road to White Drive. If

it does, White Drive is a major collector with recent

improvements and excess capacity. Any additional traffic on

White Drive would not be significant from a traffic planning

standpoint. It might make the road network more efficient

overall (even though certain trips may become less efficient).

36. It is possible that the re-routing of traffic from the

Mission Road and Ocala Road intersection may be significant

enough to warrant a traffic signal at White Drive and Mission

Road. For this reason, the City staff recommends, as a condition

for abandonment, that the State pay for signalization at that

intersection if the need arises within a 12-month period after

the abandonment. Based on the evidence, it should not be

anticipated that other road and traffic improvements will be

necessary as a result of the abandonment, except perhaps reversal

of the stop condition at Mission Road and San Luis Road and

possibly a turn lane on Solana Drive at its Mission Road

junction.

37. Petitioners also contend that the value of the 1.34

acres of road right-of-way to be abandoned is a cost to the

general public that should be considered. The appraised value of

the 1.34 acres was $240,000, using an "across the fence"

appraisal methodology and assuming high-density residential

property "across the fence" even though the property on either

side of the proposed abandonment would be park land, and the

transfer of use from road to park would be from one public

purpose to another public purpose. In any event, the City cannot

legally "charge" for abandoning right-of-way, and the value of

abandoned right-of-way is never a consideration in the City's

review of an abandonment application. See Conclusion 77, infra .

38. Petitioners also contend that the proposed abandonment

will have the negative effect of hampering emergency response in

the area. Any road closure could result in a longer emergency

response time by a matter of minutes in a particular circumstance

and, depending on the emergency, it is possible that a delay of

mere minutes could be significant and even mean the difference

between life and death. But the evidence was clear that, from

any reasonable planning perspective, the proposed abandonment

would not present significant difficulties to fire, hazardous

material, or police responders, assuming that maintaining

adequate emergency access into the Mission itself is made a

condition of the abandonment.

39. Geographic areas are assigned to Fire Department

stations for primary response. The response routes of drivers

are not assigned, but are instead discretionary on the part of

the driver based on the time of day, traffic patterns, nature of

the road, and possible school zones. The primary station is

called as the First Due, with the secondary being Second Due, and

so forth. Station 4, located at the corner of Pensacola Street

and Appleyard Drive, is the First Due Station, or engine company,

for the area of the proposed abandonment, including The Timbers.

The typical route for Station 4 would be to travel from its

location at Appleyard Drive and proceed to Tennessee Street, turn

right and proceed east to White Drive, then turn left and proceed

north to Mission Road. This route would not be affected by the

proposed abandonment.

40. The Second Due Station for this area is the Main Fire

Station located at 327 North Adams Street. The probable

emergency response route for a fire truck coming from this

Station would be to travel west on Tennessee Street, go through

the Ocala Road intersection with Tennessee Street, turn right and

proceed north on White Drive, and turn right and proceed east on

Mission Road. The alterative route of proceeding north on Ocala

Road at the Tennessee Street intersection and turning left onto

Mission Road would be extremely difficult to navigate for a large

fire truck, particularly in light of traffic, and typically would

not be the preferred route. The typical route from the Second

Due station is not affected by the proposed abandonment.

41. The Third Due station for this area is Station 8, which

is located on Hartsfield Road. This Station is situated to the

west of the Timbers and the Mission. A typical route from this

Station to the Timbers would be to drive east on Hartsfield Drive

and take one of several southerly connections to Mission Road,

and then drive east on Mission Road to access The Timbers or the

Mission.

42. Another consideration for Fire Department emergency

access is the specialized functions of certain stations in two

areas--Urban Search and Rescue, and the Hazardous Material

Response. The Urban Search and Rescue team provides specialized

services including searching through collapsed buildings and

piles of debris. The primary station response for Urban Search

and Rescue is Station 4, and its access is unaffected by the

abandonment.

43. The primary Hazardous Material Response team is Station

2, located on Sharer Road. There is a secondary specialized

station for hazardous materials response, Station 3, which is

located on South Monroe Street at Paul Russell Road. In

addition, all of the stations have some ability to provide

hazardous materials response. Currently, a possible route from

Station 2 to the Timbers eventually would take Ocala Road to

Mission Road. However, this route is only available for single

engine fire trucks. Due to the nature of the equipment it uses,

the hazardous materials team may instead proceed along Interstate

10 to Capital Circle and head back east to the area. During a

response to an incident, this specialized team would be driving

en route, meaning with traffic and not in emergency mode, and the

First Due station would already have sent a truck to the site

along a route unaffected by the proposed abandonment.

44. As for the Police Department, the main type of call

from The Timbers has been for public disturbances, which are

frequently related to parties and generally not emergencies. In

the three years of calls, only one call received could be

considered an emergency response, which was for a young lady who

had erratic breathing after passing out from drinking too much

alcohol.

45. In contrast to the Fire Department, police patrol cars

have no fixed locations but rather are constantly on patrol.

Dispatch for police prioritizes current needs and locations of

vehicles. The Police Department has a number of methods it can

use to access an area in case of an emergency. In addition to

the standard method of reaching an area by car, potential options

to reach an area include by foot, bike, and helicopter. Even

deployment of an armored car/tank type vehicle would be possible

if the situation warranted it.

46. If the abandonment occurs, there will be three main

routes to access the area, including San Luis Road, White Drive,

and Mission Road from the west. With the two entrances to The

Timbers, these routes provide at least five different ways to

access The Timbers. Some locations in the City, such as cul-de-

sacs, have only one access route. The various approaches to the

area in question provide more than sufficient access.

47. The proposed abandonment would result in the

elimination of a less-than-ideal intersection at Mission Road and

Ocala Road. Resulting from the extension of Tennessee Street to

the west of Ocala Road, the intersection at Mission Road and

Ocala Road does not meet current design standards because it is

too close to Tennessee Street. It is not unusual for cars

turning right from Mission Road onto Ocala Road to cross two or

three lanes within a very short distance in order to turn left

onto Tennessee Street. This maneuver is dangerous and illegal.

Of six accidents at the intersection over four years, five

involved oncoming traffic striking a vehicle turning onto Ocala

Road from Mission Road. In a three-month period in 2006 alone,

there were three such collisions. One reason there are not more

similar accidents appears to be that the danger is so obvious

that most drivers--both those attempting the maneuver and those

driving south on Ocala Road--use caution. In addition, many of

the local residents have become quite skilled at negotiating the

intersection. Another illegal maneuver at this less-than-ideal

intersection is sometimes used by cars heading north on Ocala

Road and crossing Tennessee Street. Since it is not possible to

make a legal turn left onto Mission Road, some turn left into a

business parking lot on the northwest corner of Tennessee Street

and Ocala Road, drive through the business parking lot, and then

turn left onto Mission Road.

48. Petitioners contend that the proposed abandonment will

shift traffic from the Mission Road/Ocala Road intersection to

the White Drive/Tennessee Street intersection, which also is

inconsistent with design standards due the centerline offset,

making the left turn onto Tennessee Street from White Drive

potentially dangerous. However, whether and how much traffic

would be shifted to that intersection was not proven. In

addition, most of the traffic experts who testified were more

concerned about the dangers inherent in the Mission Road/Ocala

Road intersection and thought elimination of the Mission

Road/Ocala Road intersection would make the Ocala Road/Tennessee

Street intersection more efficient.

Comprehensive Plan

49. The evidence was that, with the conditions recommended

by the City's Planning Department, the proposed abandonment does

not create any condition that is inconsistent with the

Tallahassee-Leon County Comprehensive Plan, including the Long-

Range Transportation Plan.

50. Goal 2 of the Historic Preservation Element of the

Comprehensive Plan is to “[e]nsure that all municipal and county

actions encourage and promote the preservation of this

Mission Road will serve Goal 2 by supporting and satisfying

Policy 2.1.3 (mitigate the impact of development on historic

resources), Policy 2.1.5 (property listed in the Florida Master

Site File), and Objective 2.4 (develop a land conservation

program to protect historic resources).

51. The proposed abandonment also is consistent with other

parts of Goal 2, namely: Objective 2.5 (establish a program to

protect significant archaeological resources); Policy 2.5.1

(mitigation of adverse impacts to significant sites); Policy

2.5.2 (archaeological sites to be filed with Florida Master Site

File and Archaeological Sensitivity Zone Maps of Leon County);

Objective 3.2 (provide for the interpretation of local

government-owned historic resources in parks and other public

lands); Policy 3.2.1 (support and encourage local projects

involving walking, bicycling and driving tours through historic

areas); and Policy 3.2.2 (include the existence of historic

resources as a criterion in the acquisition of public parks).

52. The recommended bicycle/pedestrian path easement

condition is consistent with Goal 6 of the Conservation Element

of the Comprehensive Plan, which encourages the City/County to

"implement a county-wide greenways network . . . to provide for

. . . educational and historical interpretive opportunities and

increased opportunities for alternative modes of transportation."

53. Goal 6 of the Conservation Element of the Plan and

supporting Policies 6.1.1 through 6.1.4 were the origin of the

Tallahassee-Leon County Greenways Master Plan. The intent was to

link historic and natural resources throughout the community,

linking them to residential, work, and business areas. The

bicycle/pedestrian easement link San Luis City Park trails with

an existing trail at the intersection of Tennessee and Ocala.

54. The proposed abandonment is consistent with the Parks

and Recreation Element of the Comprehensive Plan in that state

facilities may be included to meet state-required levels of

service. Parks are essential to a sustainable community.

55. The Land Use Element of the Comprehensive Plan has the

general goal of protecting natural and aesthetic environments and

residential areas. One way to protect residential areas is not

to route collector roadways through them. Everything adjoining

the western boundary of the Mission is classified as Residential

Preservation. Closing Mission Road will force traffic away from

this area and protect 18 homes on San Luis Road from cut-through

traffic. The Planning Department would downgrade area street

classifications to "local streets" to reflect their true use and

provide better neighborhood protection.

56. Studies performed by the Planning Department resulted

in a multi-modal transportation district and a greenways master

plan. The City operates under the Tallahassee/Leon County

Multimodal Transportation District Plan. That Plan focuses on

bike paths, mass transit, and sidewalks to facilitate greater

mobility with fewer roads. Service levels for bicycle paths in

the San Luis area are close to critical. The bicycle/pedestrian

easement will provide greater connectivity, thereby improving

service levels.

57. Many students reside in the vicinity of the proposed

road closure and provision of a bike path connecting the areas

north of Mission Road with the Ocala Trail south of Tennessee

Street would attract more bicycle traffic in the hopes of

changing the mode of transportation for college students.

58. The City has a Tallahassee-Leon County Greenways Master

Plan (Greenways Plan). The abandonment application provides an

opportunity under the Greenways Plan. The bicycle/pedestrian

easement will connect an existing trail at the intersection of

Tennessee Street and Ocala Road to San Luis City Park. This is

consistent with the Greenways Plan.

59. The City has adopted the Bicycle and Pedestrian Master

Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to

facilitate greater awareness of bike and pedestrian facilities

and to promote construction of new facilities. The

bicycle/pedestrian easement would provide greater accessibility

to existing amenities and infrastructure and meet the intent of

the Bike/ped Plan.

60. Petitioners argued that there already exists a better

connection between the existing trail at the intersection of

Tennessee Street and Ocala Road to San Luis City Park via Ocala

Road and Continental Avenue. However, the evidence did not prove

that the existing route would be safer or better than the

connection that would become available as a result of the

bicycle/pedestrian easement condition on the proposed

abandonment. Even if it would be, an additional route and

connection still would serve a public benefit.

61. Petitioners also pointed out that State could dedicate

an easement through its property for purposes of a

bicycle/pedestrian connection without applying for abandonment of

right-of-way and that the City never asked for such a dedication

before the State applied for application of the right-of-way.

But it is typical to consider such matters in the context of an

application for abandonment.

Alternatives to Abandonment

62. Petitioners concede that pedestrian safety at the

Mission San Luis "would be rendered perfect if the road were

abandoned, closed, and eliminated." However, they contend that

other steps could be taken to protect the pedestrians as well or

better without abandoning the road.

63. First, Petitioners suggest the alternative of a

pedestrian crossing with a pedestrian-controlled stop light and

advance warning flashers. This suggestion was supported by the

testimony of Petitioners' traffic expert, Wayne Coloney. But he

assumed there would be 360 feet between the pedestrian crossing

and the curve in Mission Road. Actually, the pedestrian crossing

would be only approximately 210 feet from the curve, which is

less than the 330 feet that Mr. Coloney considered to be safe.

The other traffic experts also believed that it would be unsafe

to design a pedestrian-crossing that close to the curve, even

with advance warning flashers--a design that works best on

straight roads with long sight-line distances, such as Meridian

Road.

64. Next, Petitioners suggest the construction of an

overpass. This would be a more expensive proposition. It would

require the construction of ramps, stairs, and elevators to

comply with the Americans with Disabilities Act. In addition, to

be effective in protecting pedestrians, fencing would have to be

installed for a considerable distance on both sides of the road

to discourage pedestrians from crossing the road instead of using

the overpass. According to Mr. Coloney, all of this would cost

between $300,000 and $390,000 to install and between $20,000 and

$30,000 to maintain. Both the overpass and the fencing would be

at odds with the environment the State would be trying to re-

create and maintain on the Mission property.

65. Petitioners also suggest digging a tunnel under the

road, which would be less obvious than an overpass. However,

this also would require fencing to be effective and would be the

most expensive of the suggested alternatives--costing between

$450,000 and $690,000 to install. In addition, it would require

digging a tunnel through artifact-rich earth, which would be

contrary to the a primary purpose of Mission San Luis.

Application of Findings to Standards

66. Paragraph 2 of Policy 410 requires a demonstration that

an abandonment of right-of-way is "in the best interests of the

general public." It is clear that the proposed abandonment is

not in any private interest since the abandonment is to the State

for incorporation in its Mission San Luis, a public facility.

The abandonment is not for the sole purpose of placing property

on the tax rolls, or for the benefit an abutting private property

owner. It is to benefit the public. It also is primarily to

protect the safety of pedestrians working at and visiting the

facility, including many school children. For these reasons, the

abandonment clearly is in the public interest, as opposed to any

private interest. Whether it is in the best interest of the

general public is a more difficult judgment to make. But, on

balance, the abandonment application, with the standard and

recommended conditions, probably is in the best interest of the

general public .

67. The proposed abandonment also meets the new policy

criteria for abandonment of right-of-way. It does not create any

safety or public heath hazard, including environmental health

hazard. It does not preclude access to any existing parcel or

lot of record. It does not preclude access to any publicly-

maintained facility or infrastructure. It does not create any

condition inconsistent with the Comprehensive Plan, including the

Long-Range Transportation Plan. It does not eliminate or

preclude a street or bicycle/pedestrian interconnection that the

City Commission intends to retain. It does not adversely affect

any required service access for any official service provider.

CONCLUSIONS OF LAW

Jurisdiction

68. At the time the Petition for Quasi-Judicial Proceedings

was filed in this case, Section 8-1 of the LDC provided:

No street dedicated to public use shall be

closed, abandoned or vacated until the

application therefor has been considered by

the city-county planning commission. Filing

fees, advertisements, written notices and

hearings shall be as is provided for

amendments to the zoning map in chapter 10 to

provide opportunities for public

participation in the abandonment process.

69. LDC Section 10-51, which governs zoning map amendments,

provides in pertinent part:

(e) Preliminary decisions for amendments to

the official zoning map. The planning

commission shall review the application and

the planning department staff report on the

application at a scheduled public hearing,

and render a preliminary decision which shall

include the planning commission's findings

and recommendations to the city commission.

The preliminary decision shall be rendered

when the written decision is filed with the

planning commission clerk, who shall promptly

notify the applicant in writing.

(f) Quasi-judicial proceedings. The

planning commission's preliminary decision on

its recommendation to the city commission

shall become final 15 calendar days after it

is rendered unless a person who qualifies as

a party as defined in this Code files a

petition for quasi-judicial proceedings in

accordance with chapter 2, article III,

division 2, subdivision II, of this Code and

the bylaws of the planning commission.

LDC Section 2-138 provides for referral of petitions for quasi-

judicial proceedings to DOAH.

70. Effective March 25, 2008, Section 8-1 was amended to

add the sentence: "Notwithstanding the foregoing, abandonments

are legislative decisions, and shall not be eligible for quasi-

judicial proceedings under this Code." (Emphasis added.) There

was no argument by the parties as to whether this new version of

the Code applies to this case, so as to result in its dismissal

for lack of jurisdiction. However, if for no other reason than

that the State could withdraw and re-file its application and

avoid a quasi-judicial proceeding, it appears that those "new

legal consequences were clearly intended." See Lakeland Regional

Medical Center, Inc. v. State, Agency for Health Care Admin., et

al. , 917 So. 2d 1024, 1030 (Fla. 1st DCA 2006). Nonetheless, in

the event that was not the result intended by the City

Commission, this Recommended Order is being submitted to the

Planning Commission as provided for a quasi-judicial proceeding

under LDC Section 10-51.

Standing

71. The City and DEP argue that Petitioners do not have

standing because the Florida Supreme Court has held that: "This

court is committed to the rule that an action by an individual to

enforce his right to use a public street must be based on a

special and particular injury, differing not only in degree but

also in kind, from that sustained by the community at large.”

Brooks-Garrison Hotel Corp. v. Sara Inv. Co ., 61 So. 2d 913 (Fla.

1952), cited in Lining v. Bd. of Co. Commissioners, Duval Co .,

176 So. 2d 350, 352 (Fla. 1st DCA 1965). See also Henry L.

Doherty & Co. v. Joachim, 200 So. 238 (Fla. 1941)(no standing to

challenge abandonment of footpath, which required guests and

tenants at a resort to travel a much greater distance, did not

demonstrate an injury different in kind from that sustained by

general public, even though greater than that of many others in

the community, and did not give the resort owner standing);

Halpert v. Udall , 231 Fed. Supp. 574 (S.D. Fla. 1964), aff'd , 379

U.S. 645 (1965)("[A] property owner cannot challenge the closing

of a road where the injury to him is not materially different

than that sustained by the public. . . . [T]his is particularly

true where there is another means of ingress and egress even

though the other route is substantially longer."). However, the

issue in this proceeding is not Petitioners' standing to

challenge the abandonment of right-of-way in court; rather, it is

Petitioners' rights to a quasi-judicial proceeding. Petitioners'

standing in this case is determined by reference to LDC Section

2-134, which states in pertinent part:

Quasi-judicial proceedings may be initiated

by . . . persons who will suffer an adverse

effect to an interest protected or furthered

by the comprehensive plan or this Code,

including interests related to health and

safety, police and fire protection service

systems, densities or intensities of

development, transportation facilities,

health care facilities, equipment or service,

or environmental or natural resources. The

alleged adverse effects to an interest may be

shared in common with other members of the

community at large, but shall exceed in

degree the general interest in community good

shared by all persons.

As a result, it would not be necessary for Petitioners to prove

an adverse effect differing not only in degree but also in kind

from adverse effects on the general public to have standing.

72. In any event, Petitioners proved an adverse effect

different in kind from the effect on the general public. They

proved that there probably would be some use of their private San

Luis Road as a cut-through if the abandonment application is

granted (even if it was not proven that the use will be extensive

or significant).

Burden and Standard of Proof

73. The parties agreed in their Pre-Hearing Stipulation

that evidence would be first presented at the hearing by DEP as

the applicant, followed by the presentation of City staff in

support of the abandonment, and ending with the Petitioners'

case.

74. The City asserts that Section 5, Article IX, Planning

Commission Bylaws, addresses the burden of proof as follows:

"[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 (referred to by the courts of this state as a 'prima

facie case') the burden of proof will shift to the petitioner(s)

to rebut the evidence submitted by the applicant." These Bylaws

are not in evidence. However, the Bylaws quoted by the City

reflect a shifting of the burden of presenting evidence, not a

shift in the ultimate burden of persuasion away from the

applicant. Cf. Fla. Dept. of Transp. v. J.W.C. Co., Inc., et

al. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981). The standard of

proof required to persuade the finder of fact is a preponderance

of the evidence.

75. The City and DEP cite case law that the courts defer to

the decision of the local government in legislative matters such

as the abandonment of right-of-way. See Roney Inv. Co. v. City

of Miami , 174 So. 26, 29 (Fla. 1937); Sun Oil Company v.

Gerstein , 206 So. 2d 439, 440-441 (Fla. 3d DCA 1968), cert. den .,

211 So. 2d 212 (Fla. 1968). In other words, the courts will not

second-guess the local government's ultimate legislative

decision. But those cases do not stand for the proposition that

similar deference should be given to City staff in a quasi-

judicial proceeding, which is a stage in the decision-making

process that is preliminary to the City's ultimate decision. The

issue in this quasi-judicial proceeding is what the City's

decision should be (specifically, what the Planning Commission

should recommend that the City Commission's decision should be).

Guidance for Review of Abandonment Applications

76. The guidance for reviewing abandonment of right-of-way

is found in City Policy 410, especially paragraph 2, and the

modifications to the policy. See Findings 16-17, supra .

77. According to Attorney General Opinion 78-125, 1978 Fla.

AG LEXIS 45, at *13:

[T]he several property interests of abutting

landowners are subject to constitutional

protection. Clearly the attempt by a

municipality to usurp private property rights

or property interests or to barter or sell

such property rights as conditions to or in

exchange for the exercise of its legislative

power to vacate streets no longer required

for public use, does not constitute a

municipal purpose and is outside the scope of

municipal home rule powers.

For that reason, the City cannot sell the property to be

abandoned to the State, or charge the State for granting its

application for abandonment, and the appraised value of the

property to be abandoned should not be a factor in the deciding

whether to grant the application.

78. On the other hand, the City has the legal authority to

impose conditions upon the abandonment of a right-of-way to serve

the public interest. City of Temple Terrace v. Tozier , 903 So.

2d 970 (Fla. 2d DCA 2005). The standard conditions and

conditions recommended by the City's Planning Department in this

case are appropriate and should be imposed to serve the public

interest. See Findings 18-22, supra .

79. As stated in City of Miami v. Girtman , 104 So. 2d 62,

66 (Fla. 3d DCA 1958), which involved an application for a

driveway connection: "In the present case there was involved the

question of public safety, which is a proper field for the

exercise of police power . . . [N]ot only is the governing body

entitled to exercise police power for those purposes, but it is

bound to do so . . . ."

80. Considering the factors under the available guidance,

DEP's application for abandonment should be granted, with the

standard and recommended conditions. With those conditions, the

application clearly meets the new policy criteria for abandonment

of right-of-way, and it probably is in the best interest of the

general public.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Planning Commission recommend to the

City Commission that DEP's application for abandonment of right-

of-way be granted, with the standard and recommended conditions.

DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 2008.

COPIES FURNISHED :

Deepika Andavarapu

Tallahassee-Leon County

Planning Department

300 South Adams Street, Fourth Floor

Tallahassee, Florida 32301-1721

William H. Davis, Esquire

Dobson, Davis & Smith

610 North Duval Street

Tallahassee, Florida 32301

Jonathan P. Sanford, Esquire

Office of the City Attorney

300 South Adams, Box A-5

Tallahassee, Florida 32301

Lisa M. Raleigh, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.