18-002734 Wynona C. Braswell, Scott Hampton, And Vickie Goodman vs. Palafox, Llc, And Leon County Department Of Development Support And Environmental Management Status: Closed Recommended Order on Friday, August 31, 2018.

Summary: Palafox demonstrated that the proposed Market District Housing 36-unit townhome development was consistent with all applicable provisions of the Leon County Development Code and the Tallahassee-Leon County Comprehensive Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WYNONA C. BRASWELL AND

VICKIE GOODMAN,

Petitioners,

vs. Case No. 18 - 2734

PALAFOX, LLC, AND LEON COUNTY

DEPARTMENT OF DEVELOPMENT

SUPPORT AND ENVIRONMENTAL

MANAGEMENT,

Respondents.

_______________________ ________/

RECOMMENDED ORDER

The quasi - judicial hearing in this case was held on July 11

and 12, 2018, in Tallahassee, Florida, before Francine M.

Ffolkes, Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), acting as the Special Master

under section 10 - 7.414 of the Leon County Land Development Code.

APPEARANCES

For Petitioner Wynona C. Braswell:

Jefferson M. Braswell, Esquire

Braswell Law, PLLC

1800 North Main Street, Suite 1A

Gainesv ille, Florida 32608

For Petitioner Vickie Goodman:

Vickie JoAnne Goodman, pro se

2800 Palafox Lane

Tallahassee, Florida 32312

For Respondent Palafox, LLC:

W. Douglas Hall, Esquire

Carlton Fields, P.A.

215 South Monroe St reet, Suite 500

Post Office Drawer 190

Tallahassee, Florida 32301

For Respondent Leon County:

Carly J. Schrader, Esquire

Heath R. Stokley, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive, Suite 200

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether the Leon

County Application Review Committee ' s preliminary decision

approving a site and development plan for the Market District

Housing (LSP 180013) is consistent with the Tallahassee - Leon

County Comprehensive Plan ( " Comp Plan " ) and the Leon County Land

Development Code ( " Code " ).

PRELIMINARY STATEMENT

On April 27, 2018, the Application Review Committee issued a

letter which conditionally approved the site and develo pment plan

submitted by the Respondent, Palafox, LLC ( " Palafox " ), for the

Market District Housing, a 36 - unit townhome development to be

located on the southwest corner of Martin Hurst Road and Palafox

Lane ( " Project " ). The Project required review and appr oval of a

" Type A " site and development plan, and Palafox chose the final

design plan approval ( " FDPA " ) review track. The FDPA review

track provides for concurrent land use and environmental

permitting approval. On May 23, 2018, the Petitioners, Wynona C .

Braswell, Scott Hampton, and Vickie Goodman, filed a joint

petition challenging the Application Review Committee ' s

preliminary approval as inconsistent with certain provisions of

the Comp Plan and Code.

Pursuant to a contract between DOAH and the Respond ent, Leon

County Department of Development Support and Environmental

Management ( " Leon County " ), Leon County sent the matter to DOAH

to appoint a Special Master and conduct a quasi - judicial hearing.

A notice of the hearing was provided in accordance with

section 10 - 7.414(J)(ii) of the Code.

Prior to the hearing, the Petitioner, Scott Hampton, filed a

notice of withdrawal as a petitioner, and was dismissed as a

petitioner by Order dated June 20, 2018. At the hearing, Leon

County ' s pending motions for offic ial recognition were granted.

The Petitioners presented the testimony of Vickie Goodman; Wynona

Braswell; Ryan Culpepper; Cheryl Poole, P.E.; Kevin Songer; Steve

Stinson, P.L.S.; Scott Hampton; and Sal Arnaldo, P.E. The

Petitioners ' Exhibits 1, 2, 3, 9, 10, 12, 15, 16, 17, and 19 were

admitted into evidence. The Petitioners ' Exhibits 4, 5, 6, 7, 8,

11, 13, 14, and 18 were marked for identification but were not

admitted into evidence. The Respondents presented the testimony

of Gary Zins, Shawna Martin, a nd Nawfal Ezzagaghi, P.E. The

Respondents ' Joint Exhibits 1 through 36, 63, 65, 70, and 92

through 116 were admitted into evidence. 1 /

At the hearing, an opportunity was provided to receive

comments from the public. One person, George E. Lewis , II ,

offere d comments in opposition to the Project. A copy of this

Recommended Order is being sent to Mr. Lewis.

The Transcript of the hearing was filed with DOAH on

July 30, 2018. The parties submitted proposed recommended orders

that were considered in the prepar ation of this Recommended

Order.

References to the Florida Statutes are to the 2018 version,

unless otherwise indicated.

FINDING S OF FACT

The Parties

1. The Petitioner, Wynona C. Braswell, lives at

2784 Palafox Lane, which is the single - family lot locate d at

Lot 5, Block A, of the 2008 Palafox Preserve Subdivision Plat

( " Plat " ). The Petitioner, Vickie Goodman, lives at the single -

family lot located at Lot 1, Block A, of the Plat.

2. The Petitioners are concerned that changes in the storm

water manageme nt facility on Lot 1, Block B, of the Palafox

Preserve Subdivision will reduce the size of the storm water

pond. The Petitioners are concerned that changes in the storm

water pond will cause the conservation easement to overflow and

burden the storm water facilities owned by residential

homeowners.

3. Leon County is a political subdivision of the State of

Florida and has adopted a comprehensive plan that it amends from

time to time pursuant to chapter 163, Florida Statutes. Leon

County is responsible f or enacting and applying relevant Comp

Plan and Code provisions to the development of property located

within its political boundaries.

4. Palafox is a limited liability corporation that is the

applicant seeking approval for the " Type A " site and develop ment

plan, which is the subject of this proceeding. Palafox is the

sole member of the Palafox Preserve Commercial Property Owners '

Association, Inc. Gary Zins owns and controls Palafox through

its managing member, Evergreen Communities, Inc., and is also the

president of the Palafox Preserve Commercial Property Owners '

Association, Inc., and controls the association as its only

officer and director.

Land Use Designations

5. The Project is located on approximately 2.75 acres of

the approximately 6 - acre p arcel of land identified as Lot 1,

Block B, on the Plat. The parcel is within the Suburban ( " SUB " )

and Lake Protection ( " LP " ) categories on the Future Land Use Map

of the Comp Plan. The parcel is split zoned Office Residential 3

( " OR - 3 " ) and LP. The Pro ject is proposed only within the OR - 3

zoned portion.

6. Policy 2.2.5 of the Future Land Use Element ( " FLUE " ) of

the Comp Plan provides that the major function of the SUB

designation is to mix placement of employment and shopping

opportunities, with conve nient access to low and medium density

residential land uses. The proposal for 36 dwelling units which

equates to a density of approximately 13 dwelling units per acre

( " du/a " ) meets the gross density requirement of the OR - 3 zoning

district.

7. The Proj ect is located within the Urban Services Area

established by the FLUE, which is the area identified by Leon

County as desirable for new development based on the availability

of existing infrastructure and services.

8. The parcel contains a localized clos ed basin, wetlands

and 100 - year floodplain. Consistent with Comp Plan Conservation

Element Policies 1.3.2 and 1.3.6, the areas of the site that

contain environmentally sensitive features were previously placed

in a perpetual conservation easement, and Pal afox does not

propose to disturb the area in the conservation easement.

Background

9. Leon County previously approved development of

19 single - family lots located on Lots 1 through 19, Block A, of

the Plat. This development included infrastructure such as

Palafox Lane, which is the entrance to the subdivision, and storm

water management facilities in both Block A and Block B of the

Palafox Preserve Subdivision. The Palafox Preserve Subdivision

is a common scheme of development, and the storm water mana gement

facilities are operated under a single operating permit. It is

also a private subdivision with all of the storm water management

facilities dedicated to private entities and not to Leon County.

10. A wetland of approximately seven acres was ident ified

as part of the Natural Features Inventory ( " NFI " ) and placed in a

perpetual conservation easement in 2006. The wetland was

initially delineated in 2001 by Kevin Songer who represented the

applicant at that time. Mr. Songer ' s wetland delineation was

field reviewed by representatives from Leon County and the

Florida Department of Environmental Protection, adjusted, and

finally approved by Leon County in 2006 as part of the NFI

approval.

11. The wetland and perpetual conservation easement

straddle th e boundary between Block A and Block B with about two -

thirds in Block A and about one - third in Block B. With the

required buffer area added to the approximately seven - acre

wetland, the perpetual conservation easement in total covers

approximately nine acr es.

12. Subsequent permits for the development of the Palafox

Preserve Subdivision, such as for the 19 homesites, relied on the

2006 NFI, which included the 2001 wetland delineation and the

perpetual conservation easement. Leon County did not require ne w

wetland delineations prior to development of each homesite even

though homes were built as recently as 2012, 2013, and 2014.

13. The storm water management facility constructed in

Block B of the Plat is labeled as SWMF #1. SWMF #1 was designed

to reta in the additional runoff from the first 500 feet of

Palafox Lane up to the 100 - year, 24 - hour storm. SWMF #1 has a

concrete weir that allows a controlled discharge into the

adjacent conservation easement wetlands. Storm water management

facilities constru cted in Block A included SWMFs #6 and #7 that

collect the runoff from the homesites located on the west side of

the conservation easement, namely Lots 11 through 19. Lots 11

through 19 all contain a portion of the conservation easement

area as well as pla tted drainage easements.

14. SWMFs #6 and #7 are constructed in the platted drainage

easements on Lots 11 through 19 in Block A. SWMFs #6 and #7 are

constructed in a horseshoe shape adjacent to the conservation

easement, are designed as detention facili ties, and discharge to

the conservation easement wetlands.

15. The SWMF #1 retention facility, the SWMFs #6 and #7

detention facilities, and the conservation easement containing

the wetlands are within the localized closed basin. There is

another SWMF t o the west behind homesites located on Lots 1

through 7 that is labeled SWMF #5. SWMF #5 is not within the

localized closed basin and discharges to the Lake Jackson

drainage basin .

16. The conservation easement also contains a " pop - off " or

outfall which allows for discharge of water from the wetlands to

the west if it reaches a certain elevation, which based on the

plans is 223.57 feet. It was designed to mimic pre - development

conditions and only discharges if the 100 - year, 24 - hour storm is

exceeded. I f discharged, the water would travel west through

drainage easements to SWMF #5 and ultimately to Lake Jackson.

Because the localized closed basin retains up to the 100 - year,

24 - hour storm, it is a closed basin under the Code.

17. Leon County also prev iously approved commercial

development on Lot 1, Block B, of the Plat, which is still active

(Palafox Preserve Commercial Project). The site development

approval and environmental permits for the Palafox Preserve

Commercial Project are current but would b e superseded by final

approval of the site and development plan and environmental

permit for the current Project.

The Project

18. In 2014, an earlier application for Site Plan and

Development Review was submitted for the Market District Housing

Project. An Environmental Permit Application ( " EMP " ) was also

reviewed concurrently under the Code. Leon County issued a

preliminary written decision of approval, which was appealed by

Robert and Wynona Braswell, and the case was assigned to DOAH.

Based on certa in issues, the application was withdrawn, and the

parties litigated in circuit court. That litigation concluded

with a Final Judgment in favor of Evergreen Communities, Inc.,

and Palafox.

19. Palafox then submitted the current site and development

plan application for the Project dated April 4, 2018, which was

designated LSP 180013. Palafox concurrently submitted an EMP

application for the Project, which was designated as LEM 18 -

00034.

20. The Project ' s current Plan application was reviewed by

vario us departments within Leon County, as well as several other

entities and agencies. Ms. Shawna Martin, principal planner with

the Leon County Development Services Division, coordinated the

review gathering comments and feedback from the various

departments and agencies and coordinated the preparation of a

Staff Report for the Application Review Meeting ( " ARM " ) held on

April 25, 2018.

21. The Staff Report recommended approval of the Project

finding that the Project ' s proposed development was consistent

wi th the Comp Plan, met applicable zoning standards and

requirements, and met the applicable provisions of the County ' s

Environmental Management Act ( " EMA " ) and the provisions of

chapter 10 of the Code.

22. Leon County ' s Environmental Services Division

( " E nvironmental Services " ), under the supervision of Nawfal

Ezzagaghi, a licensed professional engineer, reviewed the EMP

application for the Project concurrently with the site plan and

development review. Mr. Ezzagaghi has been the environmental

review supe rvisor for Leon County since 2005, and is responsible

for the review by Environmental Services ' staff of environmental

management plans, engineering calculations, engineering plans,

and providing input on site plans and to the public works

department.

23 . During the review of the application, both in 2014 and

2018, Environmental Services under Mr. Ezzagaghi ' s supervision

reviewed the application including the storm water design,

modeling, and construction plans, and coordinated and

communicated with the applicant. Environmental Services received

and reviewed the materials, conducted an independent analysis,

and ultimately verified compliance with the EMA.

24. The Petitioners received notice of the ARM meeting,

submitted verbal and written comment, and ultimately challenged

the written preliminary decision of approval.

25. The Petitioners ' challenge raised three primary issues:

(1) that the Project is inconsistent with the Plat; (2) that the

perpetual conservation easement wetland should have been r e -

delineated as part of the Project ' s current permitting

application; and (3) that the storm water plan for the Project

does not meet the requirements of the Code.

Palafox Preserve Subdivision Plat

26. The Plat designates a portion of Lot 1, Block B, as the

" POA Drainage Easement. " The dedication provisions of the Plat

convey the POA Drainage Easement to the Palafox Preserve

Commercial Property Owners ' Association, Inc. Palafox, the

applicant, is the sole member of the Palafox Preserve Commercial

Proper ty Owners ' Association, Inc. The dedication provisions of

the Plat convey all " drainage easements " to the Palafox Preserve

Home Owners Association, Inc., which is the owners ' association

for Block A - - the residential area of the subdivision.

27. Plat Not e 5 states that " the construction of permanent

structures, including fences but excluding driveways, by the

Property Owner is prohibited within drainage and utility

easements. " The Petitioners claim that the Project is

inconsistent with the prohibition in Plat Note 5.

28. SWMF #1 is located within the POA Drainage Easement on

Lot 1, Block B, of the Plat and does not serve any part of the

residential area of the subdivision. On its face, the

prohibition in Plat Note 5 does not apply to the POA Drainage

E asement. In addition, words such as " fences " and " driveways "

more reasonably refer to residential areas of the Plat.

Wetland Delineation

29. The application for the Project did not contain a new

NFI. Leon County informed Palafox that the parcel had alr eady

been through the NFI process and held a valid and active EMP. As

a matter of policy, Leon County does not require submission of a

new NFI or new wetland delineation once previously delineated

wetlands are under a perpetual conservation easement that is

dedicated to Leon County as a preservation area.

30. Unlike the 2001 wetland delineation line submitted in

the 2006 NFI and placed under the perpetual conservation

easement, Kevin Songer ' s 2015 wetland delineation work for the

Petitioners was neither checked by independent peer review nor

confirmed by any state or local environmental regulatory agency.

Mr. Songer ' s 2015 wetland delineation does not represent a

recognized wetland jurisdictional line.

Storm Water Plan

31. The storm water management sy stem for the Project is a

" two - step system " designed to address both the water quality and

volume control standards of the EMA. For water quality, the Code

requires a one and one - eighth - inch standard for storm water

treatment and the Project would satisfy this requirement through

a new storm water detention and treatment facility. The

detention pond is designed to treat the volume determined from

the one and one - eighth - inch standard, or slightly more than

14,000 cubic feet. This is the more critical volu me for which

the new facility must be designed.

32. For volume control, the closed basin standard requires

the runoff volume in excess of the pre - development runoff volume

to be retained for all storm events up to a 100 - year, 24 - hour

duration storm. Tha t difference is approximately 9,650 cubic

feet. The closed basin for which retention must be demonstrated

includes the conservation easement wetlands, and modeling

demonstrated a change in elevation from 221.51 to 221.54 over

approximately six acres. Thi s difference in elevation is

retained in the wetlands up to and including the 100 - year, 24 -

hour storm. The post - development elevation of 221.54 does not

approach the 223.57 " pop - off " elevation of the wetlands.

33. SWMF #1 was designed to retain runoff f rom the first

500 feet of Palafox Lane up to the 100 - year, 24 - hour storm. The

evidence established that SWMF #1 was " over - designed " because of

circumstances in 2006 to 2007, which may have included different

Code requirements and the wishes of the origina l developer.

34. The Petitioners ' engineer, Sal Arnaldo, who did not

have any previous experience with the Code, opined that the

existing SWMF #1 could not be replaced by the proposed detention

with treatment facility. Mr. Arnaldo ' s understanding of t he Code

was that all storm water that falls on Block B and runoff from

the first 500 feet of Palafox Lane must be retained in a

retention pond up to and including the 100 - year, 24 - hour storm.

He viewed SWMF #1 as the " closed basin " or the " site " that was

not allowed to discharge to the conservation easement wetlands.

In his opinion, the proposed detention facility for the Project

did not provide the same function.

35. Different pond sizes, designs, and storm water

management methods can be used to meet the requirements of the

Code exemplified by the fact that the two - step approach used for

the Project is the same approach used on the west side of the

wetlands for Lots 11 through 19, Block A. SWMFs #6 and #7 are

also detention facilities which were desig ned to treat storm

water and discharge to the conservation easement wetlands.

36. Leon County ' s expert engineer, Mr. Ezzagaghi, testified

that the SWMF #1 retention facility, the SWMFs #6 and #7

detention facilities, and the conservation easement contain ing

the wetlands are part of the closed basin under the Code. Thus,

the standard is not a comparison of the capacity of existing

SWMF #1 to the capacity of the proposed detention facility, but

whether the storm water system as a whole controls for the pos t -

development volume that is in excess of pre - development

conditions.

37. The evidence demonstrated that the Project ' s proposed

storm water system will not significantly impact the conservation

easement wetlands and will not cause flooding or other adver se

impacts to downstream areas.

Summary

38. The preponderance of the evidence, which includes Leon

County ' s interpretation and application of applicable provisions

of the Comp Plan and Code, demonstrated that the Project is

consistent with all requiremen ts for approval. See § 10 - 7.407,

Leon Cnty. Code.

CONCLUSIONS OF LAW

Jurisdiction

39. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to section 10 - 7.414 of

the Code.

40. The Petitioners did not raise any s pecific issue

regarding the procedures followed by Leon County for the decision

under review, including public notice.

Burden and Standard of Proof

41. The burden is on the applicant for site plan approval

to demonstrate that the application complies wit h the procedural

requirements of the applicable ordinance and that the use sought

is consistent with the applicable provisions of the Comp Plan and

Code. See, e.g. , Alvey v. City of N. Miami Bch. , 206 So. 3d 67,

73 (Fla. 3d DCA 2016)(citing Bd. of Cnty. C ommr's of Brevard

Cnty. v. Snyder , 27 So. 2d 469, 472 (Fla. 1993)).

42. The standard of proof to establish a finding of fact is

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

Consistency with the Comp Plan

43. Under section 10 - 7.414(J)(vii) of the Code, the

standard of review to be applied by the Special Master in

determining whether the Project is consistent with the Comp Plan

is "strict scrutiny in accordance with Florida law." Strict

scrutiny in this context means strict compliance with the Comp

Plan, based on the document as a whole. See Snyder , 27 So. 2d.

at 475; Arbor Props. v. Lake Jackson Prot. Alliance , 51 So. 3d

502, 505 (Fla. 1st DCA 2010).

44. Palafox carried its prima facie burden to show by a

preponderance of the evidence th at the Project is consistent with

the Comp Plan. The Petitioners did not raise any specific issues

regarding compliance with the Comp Plan.

Consistency with the Code

45. Under section 10 - 7.414(J)(vii) of the Code, the

standard of review to determine whe ther the Project is consistent

with the Code "shall be in accordance with Florida law." Florida

law requires that Leon County's determination that the Project is

consistent with relevant provisions of the Code must be based on

competent substantial eviden ce. See Premier Dev. v. City of Fort

Lauderdale , 920 So. 2d 852, 853 (Fla. 4th DCA 2006).

46. Local governments are entitled to broad deference in

interpreting their land development regulations. Unless the

local government's interpretation is clearly erroneous, it should

be affirmed. See, e.g. , Pruitt v. Sands , 84 So. 3d 1267, 1268

(Fla. 4th DCA 2012); Palm Beach Polo, Inc., v. Vill. of

Wellington , 918 So. 2d 988, 995 - 996 (Fla. 4th DCA 2006).

47. The three primary issues raised by the Petitioners

in volve interpretation and application of the Code. Other

arguments raised by the Petitioners during the hearing, such as

allegations of trespass, use rights pursuant to drainage

easements or storm water facilities reflected on the Plat, and

compliance issu es surrounding the previously approved and

constructed storm water facilities in the Palafox Preserve

Subdivision, are not issues within the scop e of this proceeding.

Palafox Preserve Subdivision Plat

48. Note 5 on the Plat clearly addresses the resident ial

"drainage easements," not the "POA Drainage Easement." The Plat

separately identifies the easements and dedicates them to

different entities.

Previous NFI Approval and Wetlands Delineation

49. The Code requires an NFI prior to an application for

sit e and development plan approval. See § 10 - 4.202, Leon Cnty.

Code. As part of this requirement, preservation areas, including

wetlands, were mapped and inventoried, and were placed in a

perpetual conservation easement to ensure such areas are

protected an d preserved, including a setback. See §§ 10 - 4.202,

10 - 4.322, Leon Cnty. Code.

50. Leon County's interpretation that the Code does not

require an applicant to submit a new NFI for a development on a

site with an existing NFI and a recorded perpetual cons ervation

easement is reasonable. Private parties and Leon County have

relied on the NFI and perpetual conservation easement for

development and regulation of the Palafox Preserve Subdivision.

51. No statute, ordinance, rule or regulation requires a

wetl and to be re - delineated after it has been identified and

placed in perpetual preservation under a conservation easement.

The Petitioners' argument would lead to the absurd result of re -

surveying and re - recording allegedly "perpetual" conservation

easement s every time a lot was developed within the Plat.

Storm Water Regulations

52. The Code's closed basin standards require that

"[r]unoff volumes within regulated closed basins in excess of the

pre - development runoff volume shall be retained for all storm

e vents up to a 100 - year, 24 - hour duration storm." § 10 -

4.301(3)(b), Leon Cnty. Code. The Code defines "retention" to

mean "the collection and storage of stormwater without subsequent

discharge other than through percolation, evaporation, or

transpiration. " § 10 - 1.101, Leon Cnty. Code. The Code defines

"site" as "the total area within the property boundaries of a

principal parcel to be developed, or contiguous parcels intended

for development under a common scheme or plan." § 10 - 1.101, Leon

Cnty. Code.

53. The Palafox Preserve Subdivision is an integrated or

common scheme of development. It was platted as a single

subdivision and designed with an integrated storm water system

under a single operating permit. Additionally, there is one

common subdivisi on entrance road, and all conservation easements

for the subdivision were cr eated within a single document.

54. The Code allows discharge of post - development runoff to

a wetland under circumstances where it is "of sufficient capacity

at the time of disch arge to sustain the effects of, and to convey

such discharges, without detriment to the continued natural

function of the resource." § 10 - 4.301(6), Leon Cnty. Code. The

Code's rate provisions do not apply "to approved discharges

directly into water bodie s, watercourses, wetlands and

constructed conveyances which are of sufficient size and capacity

to receive the discharges without significant adverse effects."

§ 10 - 4.302(1), Leon Cnty. Code. Also it must be demonstrated

that "[t]he stormwater discharge shall not cause flooding or

other adverse impacts for the downstream areas." § 10 - 4.302(2),

Leon Cnty. Code.

55. The preponderance of the evidence demonstrated that the

Project's proposed storm water system will not significantly

impact the conservation easement wetlands and will not cause

flooding or other adverse impacts to downstream areas.

56. The Project as proposed does not violate section 10 -

4.304 of the Code regarding storm water easements because the

Code authorizes discharges into a wetland a rea capable of

sustaining the effects of such discharge without the need to

acquire an easement.

57. During the hearing, the Petitioners argued that

discharge of storm water into the conservation easement was not

allowed by the terms of the recorded cons ervation easement and

the applicable statute. However, the conservation easement on

its face does not prohibit the discharge for this Project.

58. Section 704.06, Florida Statutes, which governs

conservation easements, prohibits among others things,

"[a ]ctivities detrimental to drainage, flood control, water

conservation, erosion control, soil conservation, or fish and

wildlife conservation habitat preservation." These statutory

provisions are not violated by the Project, where the application

and suppo rting material and Leon County's independent review and

analysis of the same demonstrate no adverse impacts to drainage

and flood control.

Summary

59. The County's interpretations of the relevant provisions

of the Code are reasonable and are not clearly erroneous.

60. The preponderance of competent substantial evidence in

the record of this proceeding supports the determination of the

Application Review Committee that the Project is consistent with

all applicable provisions of the Comp Plan and Code.

RE COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Leon County Board of County

Commissioners enter a final order approving the Project, subject

to the conditions outlined by the Application Review Commit tee in

its written preliminary decision dated April 27, 2018.

DONE AND ENTERED this 31st day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of August , 2018 .

ENDNOTE

1/ Over the hearsay objections of the Petitioners, Respondents'

Joint Exhibits 1, 3 through 20, 22, and 23 were admitted into

evidence under the public records exception to the hearsay rule.

Martin 530:9 - 539:17. Respondents' Joint Exhibits 92 through 11 6

were admitted into evidence under the public records exception to

the hearsay rule. Ezzahaghi 580:19 - 581:10. Respondents' Joint

Exhibits 24 - 25, 27 through 36, 63, 65 and 70 were also admitted

into evidence over the Petitioners' hearsay objection under the

public records exception to the hearsay rule. Ezzahaghi 585:1 -

586:18.

The public records exception to the hearsay rule applies

to records, reports, statements reduced to writing, or data

compilations, in any form, of public offices or agencies, sett ing

forth the activities of the office or agency, or matters observed

pursuant to duty imposed by law as to matters which there was a

duty to report, excluding in criminal cases matters observed by a

police officer or other law enforcement personnel, unles s the

sources of information or other circumstances show their lack of

trustworthiness. The exception encompasses two types of public

records and reports: (1) records setting forth the activities of

the office or agency; and (2) records of a public offic e or agency

which set forth matters observed pursuant to duty imposed by law

as to which matters there was a duty to report. Philip Morris

USA, Inc. v. Pollari , 228 So. 3d 115, 120 (Fla. 4th DCA 2017).

The application materials (Respondents' Joint Exhibi ts 1 through

36 and 92 through 116) generally fall within the first category of

the exception because they are records or reports of the

activities of Leon County in carrying out its essential function

to process and review applications in accordance with the Code

including sections 10 - 4.203 and 10 - 7.403.

After review of the three issues identified by the

Petitioners as the bases for their challenge, it is highly

probable that the application materials are not subject to the

hearsay rule at all, i.e. no t hearsay. Foster v. State , 778

So. 2d 906, 914 (Fla. 2000)("A statement may, however, be offered

to prove a variety of things besides its truth."); T. 530:19 - 20.

The Petitioners' assertions in this proceeding concern disputes

about interpretation of Cod e provisions and the plain language on

a plat. Thus, the application materials do not need to be offered

for the truth of the matters asserted therein, but are admissible

as evidence relevant to show that Palafox applied and Leon County

reviewed the appli cation and provided a preliminary approval.

To the extent that any application materials, e.g., storm

water calculations and modeling, are hearsay, they are admissible

under sections 120.569(2)(g) and 120.57(1)(c), Florida Statutes.

Such information sup plemented or explained the testimony of Leon

County's engineer, Nawfal Ezzagaghi, P.E., regarding Leon County's

independent evaluation of those calculations and modeling. See

Bellsouth Advertising & Publishing Corp. v. Unemployment Appeals

Comm'n , 654 So. 2d 292, 294 (Fla. 5th DCA 1995).

COPIES FURNISHED:

Vickie JoAnne Goodman

2800 Palafox Lane

Tallahassee, Florida 32312

(eServed)

W. Douglas Hall, Esquire

Carlton Fields, P.A.

215 South Monroe Street, Suite 500

Post Office Drawer 190

Tallahassee, Flori da 32301

(eServed)

Carley J. Schrader, Esquire

Heath R. Stokley, Esquire

Nabors, Giblin and Nickerson, P.A.

1500 Mahan Drive , Suite 200

Tallahassee, Florida 32308

(eServed)

Jefferson M. Braswell, Esquire

Braswell Law, PLLC

1800 North Main Street , Suit e 1A

Gainesville, Florida 32608

(eServed)

Jessica M. Icerman, Assistant County Attorney

Leon County Attorney's Office

301 South Monroe Street , Room 202

Tallahassee, Florida 32301 - 1861

(eServed)

Herbert W.A. Thiele, County Attorney

Leon County Attorne y's Office

301 South Monroe Street, Room 202

Tallahassee, Florida 32301 - 1861

Vincent S. Long, County Administrator

Leon County Board of County Commissioners

301 South Monroe Street

Tallahassee, Florida 32301

George E. Lewis , II

2003 North Gadsden Stree t, No. 6

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the clerk of the

Board of County Commissioners of Leon County. See § 10 - 7.414(K),

Leon Cnty. Code.