06-000831 Shady Nook, Ltd vs. City Of Gainesville Status: Closed Recommended Order on Friday, May 26, 2006.

Summary: City departed from the essential requirements of the law and lacked competent substantial evidence to support its final development order which imposed conditions on applicant`s site plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHADY NOOK, LTD., )

)

Appellant , )

)

vs. ) Case No. 0 6 - 0831

)

CITY OF GAINESVILLE, )

)

Appellee . )

______________________________)

WRITTEN OPINION

Appellant, Shady Nook, Ltd., seek s review of a final

development order issued by the Development Re view Board (DRB)

of Appellee, City of Gainesville (City), on January 23, 2006.

The Divi sion of Administrative Hearings , by contract, and

pursuant to Sectio n 30 - 352.1, Land Development Code (LDC) , has

jurisdiction to consider this appeal. Appellant submit ted an

Initial Brief on April 10, 2006 . The C ity submitted an Answer

Brief on April 2 4 , 2006. Appellant submitted a Reply Brief on

May 1 , 2006. Finally, on April 7, 2006, t he parties submitted a

Record of the underlying proceedings . At the request of t he

undersigned, t he R ecord was supplemented by the filing of copies

of relevant portions of the LDC on April 20, 2006. Oral

argument was presented by the parties during a telephon ic

hearing held at 3:00 p.m. on May 1 8 , 2006.

I. Issues

Appellant raise s four issues on appeal: (1) whether the

DRB misconstrued Section 30 - 254, LDC, by not allowing Appellant

to remove a 58 - inch Live Oak on its property ; (2) whether the

DRB misconstrued Section 30 - 255, LDC, by requiring a permanent

fifteen - foot buffer zone a round t wo 58 - inch Live Oak s on its

property ; (3) whether the DRB misconstrued Se ction 30 - 264(a)( 1 ) ,

LDC, by requiring Appellant to preserve at least fifty percent

of the dripline of two 58 - inch Live O ak s in their natural state ;

and (4) whether the conditio n s in the final development order

are supported by com petent substantial evidence.

II. Background

On October 12, 1999, Alachua County (County) approved a

Planned Unit Development (PUD) known as University Towne Center.

See Alachua County Resolution Z - 9 9 - 48. The project site , which

is owned by Appellant , comprises approximately 18.5 acres and is

located at 3301 Southwest 34th Street ( at the intersection of

Old Archer Road (State Road 24) and Southwest 34th Street ) .

When the PUD was approved, the site w as located in an

unincorporated part of the County. (A mobile home park formerly

occupied the site from the 1940's until around 1996 or 1997.)

The approved PUD authorized a maximum of 155,000 square feet of

commercial use, to be developed in five phases. The approved

intensity standard was a floor ratio of 0.2. The PUD also

approved a 70,000 square - foot " B ig B ox" retail development for

the fifth phase.

In 2001, the property was annexed into the City.

Subsequent to annexation, Appellant sought final s ite plan

approval for the fifth and final phase of the PUD project.

Because the site was now in the City, the application was

submitted to th at local government . Under City regulations, the

project is classified as a Planned Development (PD), which is

th e City's nomenclature for what the County refers to in its

regulations as a PUD. If Appellant does not seek to revise the

County - approved PUD, the County's PUD ordinance for the project

would continue to apply. However, if any modifications are

sought, t he City has the authority to impose new conditions

consistent with its LDC . Here, certain modifications ( such as

downsizing the square footage and intensity of the project) are

being proposed for the last phase of the project Therefore, the

City may appl y its own PD regulations in approving the final

phase.

Appellant proposes a total build - out for the entire project

of 102,469 square feet, over 50,000 square feet less than

originally approved. (Approximately 54,000 square feet of space

has already been c onstructed in the first four phases. In P hase

5, the Applicant intends to add another 48,096 square feet.) In

addition, the project build - out would have a floor area ratio of

0.13, which is over thirty - three percent less intense than the

development allo wed under the County PUD designation. Under the

proposed build - out, approximately 51.5 percent of the site would

be impervious surface, whereas standard commercial developments

typically have an impervious surface of seventy to eighty

percent of the site.

PUD Condition 4 required Appellant to "maintain and

integrate the existing tree canopy into the overall design of

the PUD as much as possible," including "the preservation of

live oaks and cedars . . . through orientation and design of

buildings," unles s it provided "a layout that better implements

the design criteria set forth in these conditions which requires

removal of any of these trees." Even though the County PUD

approved a design for Phase 5 which included a 70,000 square -

foot "Big Box" retail d evelopment, and the removal of one 32 -

inch and two 58 - inch Live Oak trees which were located in the

footprint of that building , the City takes the position that the

County's prior action is not binding, and that Appellant's new

design must comply with the terms of Condition 4.

Appellant's current proposal would preserve the 32 - inch

tree and one of the 58 - inch trees ; the third tree, a 58 - inch

Live Oak, would be removed . Under Section 30 - 258 (a) , LDC, Live

Oak trees of this size are considered " He ritage" tree s, which

are regulated by the City and subject to special protection 1 ;

when an applicant proposes to remove a H eritage tree, the

criteria in Section 30 - 254, LDC, apply and must be satisfied

before the tree can be removed or relocated. There is also a

miti gation requirement.

The center of the saved 32 - inch tree would be approximately

eight feet from a new Building D to be constructed in Phase 5,

and the center of the saved 58 - inch tree would be six feet from

the curb. The other 58 - inch tree , which lies und er the

footprint of Building D, would be removed and replaced offsite

through mitigation. App ellant's mitigation plans exceed the LDC

criteria.

After the proposed site plan was submitted to the City, it

was reviewed by various City departments. Those d epartments

submitted evaluation sheets to the City's Technical Review

Committee. One evaluation was performed by the City's Urban

Forestry Inspector (UFI) who , among other things, expressed

concerns about the loss of one of the three trees. In her

initia l Site Plan E valuation Sheet dated October 9 , 2005, the

UFI made the following pertinent comments:

The 58" heritage live oak tree needs to be

saved for this development.

Two heritage live oaks that are to be

protected for this development have not been

pre served well.

The 58" live oak is 12' from building "D"

and this does not include the footers for

the building.

The curb and gutter is 7' and 10' from the

root crown of the 58" live oak.

The 58" live oak will in time decline in

health due to the impaction t o the root

system.

The 32" live oak tree has the same problems

facing it as the 58" tree.

No root room for 32" live oak and the tree

will decline in time.

Mitigation does not make up for the loss to

Gainesville's Urban Forest.

The UFI recommended disappro val of the application.

On October 11, 2005, or two days later, the UFI prepared a

second Site Plan Evaluation Sheet which contained the following

comments:

In order to preserve the two (2) heritage

58" Live Oak trees, more thought needs to be

given to the layout of th is plan.

One of the 58" Live Oak is protected but the

other 58" Live Oak is not being

saved/protected.

These Live Oaks are probably at least 200

years old and they need to be protected for

our Urban Forest.

This PD report states the herit age trees are

to be preserved and the applicant must

develop around the valuable trees.

Tupelo Trees 15" - 15" - 15" - 12" These trees

are the largest Tupelo trees in our Urban

Forest and no effort has been given in

preserving these trees.

Please consider cha nging the layout of this

development in order to save/protect the 58"

Live Oak tree.

The City has granted several/many heritage

trees to be removed for this development and

this is why these trees are so important.

Because of these concerns, in her evalua tion sheet, the UFI

recommended that the application be approved with conditions.

The second evaluation sheet was used by the City's staff in its

presentation to the DRB. Although t he Record does not disclose

why a second report was prepared or why the r ecommendation was

changed , counsel for the City s tates it is because of

concessions made by Appellant after the first report was issued .

On November 10, 2005, the City's Department of Community

Development (Department) recommended to the DRB that unless

ce rtain conditions were complied with, the application should be

denied. (In all, four City Departments had recommended that

certain conditions be imposed.) Thereafter, Appellant agreed to

all conditions recommended by the staff except one recommended

by t he UFI (and concurred in by the staff) that the project be

redesigned so that both of the 58 - inch Live Oak trees would be

saved . Because it did not agree with the UFI's recommended

condition, on December 28, 2005, Appellant requested a quasi -

judicial hear ing before the DRB.

On January 12, 2006, a formal quasi - judicial hearing was

conducted before the DRB. Appellant presented the testimony of

Robert Walpole, a professional engineer, and Keith A. Crutcher,

president of Gainesville Real Estate Management Com pany, the

general partner of Appellant . The City presented the testimony

of Lawrence Calderon, C hief of Current Planning in the

Department , and Meg Neiderhof er , City Arborist. Although

affected persons were given the opportunity to speak, none came

forwa rd.

Mr. Walpole described the property as being bordered by Old

Archer Road (State Road 24) on the north, Southwest 34th Street

on the west, some Department of Transportation retention ponds

on the south, and by Gainesville Place Village (an apartment

comp lex) to the east. He also described the project in detail

and how the Applicant intend s to save the 32 - inch tree and one

58 - inch tree by maintaining seventy percent and fifty - nine

percent, respectively, of the driplines with pervious landscape

materials. He went on to explain how the Applicant h ad

satisfied the requirements of Section 30 - 264(a)(1) - (4), LDC, a

tree preservation regulation which establishes four criteria

that must be met in order for a development plan to be given

credit for preserving an e xisting tree. First, fifty percent of

the area of the tree's dripline must be naturally preserved or

provided with pervious landscape material with no trenching or

cutting of the roots in the area. As noted above, t o meet this

criterion for the two trees to be saved, the Applicant intends

to protect seventy percent and fifty - nine percent , respectively,

of the ir dripline s with pervious landscape material. It will

also cut out the connecting sidewalks which are proposed to run

between the trees and replace them with stepping stones.

Mr. Walpole indicated that no trenching or cutting of roots

would take place during construction . Second, no damage from

skinning, barking, and the like can occur. Through the use of

barricades during construction, this r equirement will be

satisfied. Third, there must be no evidence of active

infestation potentially lethal to the tree. Mr. Walpole

indicated that the UFI has agreed that no infestation is

present. Finally, there must be no impervious surface or grade

chan ges within five feet of the trunk. The Applicant has agreed

to comply with this requirement by placing a curb at least six

feet from the center of the 58 - inch tree and by leaving a

distance of at least eight feet between Building D and the

center of the 3 2 - inch tree.

Mr. Walpole addressed the requirement in Section 30 - 254(e),

LDC, that allows removal or relocation of regulated trees only

"upon a finding that the trees . . . prevent the reasonable

development of the site . " He went on to explain that the 5 8 -

inch tree to be removed was under the footprint of Building D

and saving it would render a la rge portion of the site not

usable, resulting in a significant loss in square footage of

Building D, and preventing the reasonable development of the

site. Fina lly, he discounted the possibility (raised by a

member of the DRB) of redesigning the project by building a

multi - story building since the upper floor (s) would not be

leaseable.

Mr. Keith A. Crut c her , who is president of the general

partner of the deve loper, also testified that he could not

reasonably develop the property without removing one of the two

58 - inch trees. He stated that by agreeing to all of the staff's

recommendations , including saving the third tree, Appellant

would lose 13,000 square fe et of space, equating to a loss of

approximately $3.8 million in value and a twenty - eight percent

reduction in square footage. Viewing the 58 - inch tree alone, by

saving that tree, the site plan would have to be revised, the

size of Building D would have t o be reduced by 6,200 square

feet, and Appellant would incur a loss in th at building's value

of around $1.7 million. Recent property sales data w ere

submitted into the record to support this amount .

In response to the recommendation by City staff that t he

project should be redesigned to accommodate the tree , Mr.

Crutcher stated that he had considered other design options to

save the tree, but physical, financial, and legal constraints

prevented its preservation. For example, the parking lot cannot

be mo ved , as suggested by the City staff, because a n existing

Carraba's restaurant next door has a legal right to use it

through a restrictive covenant. Further, Building D could not

be moved forward because it would impair the visibility of the

remainder of t he building. The lack of visibility would render

the impaired portion of the building unleasable. Mr. Crutcher

pointed out that another portion of the development has an

eighteen - month vacancy for space due to visibility issues. By

the same token, the b uilding cannot be moved back towards the

property line since this would eliminate a driveway needed for

delivery trucks. He also discounted the possibility of reducing

the size of the building by leasing outdoor space (as suggested

by a member of the DRB) and stated that it was "not a market -

driven calculation." Finally, he pointed out that the

mitigation being offered for the loss of the tree exceeds the

LDC requirements.

Mr. Calderon, who is Chief of the Department's Planning

Division, spoke on behalf o f the City staff and indicated that

the Applicant had agreed to all conditions recommended by staff

except the one concerning the preservation of the third tree .

Therefore, the staff was revising its recommendation from denial

to approval with conditions. Mr Calderon began by pointing out

that a number of other trees had been lost during the

construction of the project and that the two large Live Oaks in

issue here should be saved. He further advised that the only

issue before the DRB was whether one 58 - inch tree could be

removed or if Building D should be redesigned. On the issue of

whether the tree prevented the reasonable development of the

property, he opined that "a simple redesign of the building

[and] some modification of the parking lot" could be made so

that both 58 - inch trees could be saved. However, e xcept for a

statement made during a power point presentation that "we are

asking . . . that the building be redesigned to extend this way

and this way without losing any square footage," and a com ment

that "a slight shift here and there would save the trees," he

offered no underlying f acts to support his opinion. Finally,

a lthough given an opportunity to do so before the DRB began

deliberating , the staff declined to address or rebut the

specific f inancial, ph ysical, and legal constraints in

redesigning the site that were described by witness es Crutcher

and Walpole .

Meg Neiderhof er , City Arborist, testified that both 58 - inch

trees are H eritage trees and should be saved because other Live

Oaks and Ce dars had already been lost during the early phases of

the project. She added that the tree to be removed is the

"healthiest" and "most beautiful" of the three trees on the

site, and that it needs to be preserved with sufficient space

around its base to en sure its long - term survival . B y saving the

tree, the City could preserve its identity as a "city in a

forest."

Although not recommended in the UFI report , Ms. Neiderhofer

re commended for the first time that an area of at least fifteen

feet around both 5 8 - inch trees be preserved on a permanent basis

because she interpreted Section 30 - 255, LDC , as requiring that

at a minimum, this amount of the radius of the dripline should

be protected . ( As noted above, t he Applicant ha s proposed that

the curb be six fee t from the center of the 58 - inch tree to be

saved . ) Her recommendation was based on language in the

regulation which provides that during construction and

development of the property , barriers shall be placed "at or

outside the dripline for all Heritage . . . trees." Therefore,

she concluded that this provision "would enable not just 15

feet, it would say you can't go closer than 41 feet because

that's what the radius of the dripline canopy - of the canopy

is. So under Section 30 - 255 we're well within th e right of

saying no closer than 15 feet." The witness conceded, however,

that she works primarily with regulations which relate to her

enforcement duties (inspections of tree barricades at

construction sites), and not with tree preservation regulations,

such as Sections 30 - 25 4 and 30 - 264 , LDC . She also acknowledged

that she had studied those provisions for the first time that

day and "learned something new about the code." She further

a greed that she was not applying the provision as written when

she re commended a minimum fifteen - foot development setback.

Finally, she noted that the City needed "to clean up the

language [in the regulations} a little bit , " presumably so that

they would comport with her views expressed at the hearing.

The City Arborist a lso referred to Section 30 - 264 (a) , LDC ,

as supporting an additional condition in the final development

order. That provision provides credit to an applicant for

preserving existing trees if the following criteria are met:

(1) Fifty percent of the area w ithin the

dripline shall be naturally preserved or

provided with pervious landscape material

and shall be maintained at its original

grade with trenching or cutting of roots in

this area. Within this area, there shall be

no storage or fill or compaction o f the

soil, as from heavy construction equipment,

or any evidence of concrete, paint,

chemicals or other foreign substances in the

soil.

(2) The tree shall not be damaged from

skimming, barking, bumping and the like.

(3) There shall be no evidence of a ctive

insect infestation potentially lethal to the

trees.

(4) There shall be no impervious surface or

grade change within five feet of the trunk.

According to the City Arborist, she construed Appellant's

decision to preserve fifty percent of the area wit hin the

dripline of the 58 - inch trees with pervious paving as

contravening the terms of Section 30 - 264 (a)(1) because she

assumed that this would require trenching and cutting of roots

in the area, which would harm the tree s . Thus, even though the

LDC auth orized the use of pervious landscape material, she

concluded that it was inadequate in this case and that an area

within the dripline of both 58 - inch trees should be preserved in

their natural state . (This was contrary to the finding of the

UFI in her Sit e Evaluation Sheet , who reported that "[o]ne of

the 58" Live Oak is protected" even though pervious landscape

materials were being used. )

At the conclusion of the hearing, the City Arborist

clarified her testimony by reaffirming (and adopting) all of the

c omments ( referred to by the witness as " statements " ) in the UFI

report except one, which was withdrawn. The withdrawn

" statement " was a conclusion by the UFI that Appellant had made

no effort to preserve four Tupelo trees. The City Arborist

specifically reaffirmed the "statement" in the UFI report that

"[o]ne of the 58" Live Oak [trees] is protected but the other

58" Live Oak is not being saved/preserved." Presumably, this

was done to make her testimony consistent with the written

comments of the UFI, wh o did not testify at the public hearing.

The City Arborist's ultimate recommendation was that the

"layout of this plan" be "modified," that both 58 - inch trees be

saved, and that an area equal to fifty percent of the dripline

be preserved, with no constru ction coming closer than fifteen

feet on any one side. However, s he did not indicate whether the

area within the dripline must be naturally preserved or whether

it could be preserved with pervious landscape material.

At the conclusion of the hearing, by a 4 - 1 vote, the DRB

adopted the staff's recommendation and approved the application

with condition s .

On January 23, 2006, the Chief of Planning Division issued

a letter which served as the DRB's final development order. It

read in pertinent part as follo ws:

I am pleased to inform you that the

Development Review Board reviewed the above

referenced application and granted approval

with conditions. The conditions are

included in the last staff report provided

to you. The approval also incorporates a

modifi cation of the Urban Forestry

Inspector's statements presented at the

meeting. The comments were modified as

follows and included in a modified version

as attached.

Concerning the 58" Heritage Live Oaks [:]

In order to preserve the two (2) Live Oak

tree s, more thought needs to be given to the

layout of this plan. The modified layout

should incorporate the following condition.

Based on the expert testimony presented

tonight and included in the report, the two

(2) Live Oak trees must be saved with an

are a preserved under each tree, equal to at

least 50% of the area of the dripline with

construction coming no closer than 15 feet

on any side.

Some items on the original comment sheet

were modified base[d] on testimony presented

at the meeting.

One requirem ent was withdrawn in accordance

with the testimony presented at the meeting.

On February 9, 2006, the Applicant filed its appeal from

the final development order pursuant to Section 30 - 352.1, LDC.

III. Legal Discussion

The Division of Administrative He arings has jurisdiction

over the subject matter of this proceeding and of the parties

pursuant to Section 30 - 352.1, LDC. Under that provision, a

hearing officer ( administrative law judge ) is authorized to

conduct an " appellate hearing" to review a final d evelopment

order rendered by the DRB.

Under Section 30.352.1(a), LDC, the scope of review is

limited in the following manner:

1. The hearing officer's review shall be

limited to the record and applicable law;

2. The hearing officer shall have the

aut hority to review questions of law only,

including interpretations of this chapter,

and any rules and regulations implementing

this chapter. For this purpose, an

allegation that a decision of the decision -

maker is not supported by competent

substantial evi dence in the record as a

whole is deemed to be a question of law.

The hearing officer may not reweigh the

evidence but must decide only whether

competent substantial evidence supports the

decision under review.

Therefore, th is appeal (in the context of t he issues raised

by Appellant) is limited to determining whether the DRB departed

from the essential requirements of the law in reaching its

decision, and whether its findings are supported by competent

substantial evidence. D ue process concerns , if any, are not a n

issue in an administrative appeal such as this . See , e.g. ,

Belniak v. Top Flight Development, LLC , DOAH Case No. 04 - 2953,

at 14 - 15 (DOAH Nov. 23, 2004).

Section 30 - 352.1(3)d.1., LDC, further provides that "the

[administrative law judge] must affirm each contested decision

or find it to be an incorrect interpretation of the law or not

supported by competent substantial evidence. The

[administrative law judge] shall prepare a written opinion

stating the legal basis for each ruling. The [admini strative

law judge] shall submit the opinion to the department, which

shall distribute it to the decision - maker and the parties."

In DeGroot v. Sheffield , 95 So. 2d 912, 915 (Fla. 1957),

the court discussed the meaning of "competent substantial

evidence" a nd stated:

We have used the term "competent substantial

evidence" advisedly. Substantial evidence

has been described as such evidence as will

establish a substantial basis of fact from

which the fact at issue can be reasonably

inferred. We have stated it to be such

relevant evidence as a reasonable mind would

accept as adequate to support a conclusion.

. . . In employing the adjective "competent"

to modify the word "substantial" we are

aware of the familiar rule that in

administrative proceedings the for malities

and the introduction of testimony common to

the courts of justice are not strictly

employed . . . . We are of the view,

however, that the evidence relied upon to

sustain the ultimate findings should be

sufficiently relevant and material that a

rea sonable mind would accept it as adequate

to support the conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

A n administrative law judge acting in his or her appellate

review capacity is without authority to reweigh conflicting

testimony presented to the DRB or to substitute his or her

judgment for that of the DRB on the issue of credibility of

witnesses. See Haines City Community Development v. Heggs , 658

So. 2d 523, 530 (Fla. 1995) ; § 30 - 352.1 . a.2., LDC.

The questi on on appeal is not whether the record contains

competent substantial evidence supporting the view of Appellant;

rather, the question is whether competent substantial evidence

supports the findings made by the DRB . Collier Medical Center,

Inc. v. Departme nt of Health and Rehabilitative Services , 462

So. 2d 83, 85 (Fla. 1st DCA 1985).

Finally, t he issue of whether the DRB "complied with the

essential requirements of law" is synonymous with whether the

DRB "applied the correct law." Haines City Community

Development , 658 So. 2d at 530 ; City of Deerfield Beach v.

Valliant , 419 So. 2d 624, 626 (Fla. 1982).

In its appeal, Appellant raises two broad grounds for

having the final development order reconsidered by the DRB.

First, Appellant contends that the DR B departed from the

essential requirements of the law by (a) misconstruing Section

30 - 254(e), LDC, by denying Appellant's request to remove one of

the 58 - inch trees after it made a showing that it could not

reasonably develop the property without removing the tree; (b)

misconstruing Section 30 - 264(1)(a), LDC, by not allowing

Appellant to use pervious landscape material to preserve an area

within the dripline of the 58 - inch tree s ; and (c) misconstru ing

Section 30 - 255, LDC, by requiring a permanent fifteen - fo ot

buffer zone around the two 58 - inch trees . Second, Appellant

contends that there is no competent substantial evidence to

support the conditions in the final development order.

S ection 30 - 254(e), LDC, governs requests to remove or

relocate regulated tree s and requires that such a request be

approved if an applicant meet s one of the following three

criteria:

(e) Permit approval criteria. Removal or

relocation of regulated trees shall be

approved by the city manager or designee

upon a finding that the tre es pose a safety

hazard; have been weakened by disease, age,

storm, fire or other injury; or prevent the

reasonable development of the site ,

including the installation of solar energy

equipment. Regulated trees shall not be

removed, damaged or relocated f or the

purpose of locating utility lines and

connections unless no reasonably practical

alternative as determined by the city

manager or designee is available. (Emphasis

added)

Therefore, if an applicant demonstrates that a tree

prevents the reasonable d evelopment of a site, the city manager

or designee "shall" approve the removal of a regulated tree.

The term "reasonable development" is not defined . In statutory

construction, however, statutes must be given their plain and

obvious meaning . M unicipal o rdinances are subject to the same

rules of construction as are state statutes. Rinker Materials

Corporation v. City of North Miami , 286 So. 2d 552, 553 - 54 (Fla.

1973); Stroemel v. Columbia County , 31 Fla. L. Weekly D1251

(Fla. 1st DCA, May 4, 2006).

I n the proceedings below, App ellant presented testimony by

Mr. Walpole and Mr. Crutcher that unless the 58 - inch tree which

lies in the footprint of Building D is removed, physical, legal,

and practical constraints prevent the reasonable development of

the sit e. These constraints included a legal covenant which

prevented a modification of the parking lot and a substantial

financial loss ($1.7 million and a loss of 6,200 square feet of

space) if Building D was reconfigured . As further explained, if

"the layout of this plan" was "modified," as required by the

final development order, Appellant would lose the driveway for

delivery trucks, and it could not lease space which had

visibility problems, was higher than the ground floor, or was

outdoors. Collectively, the se considerations constitute a bar

to the "reasonable development" of the site , as contemplated by

the plain and ordinary meaning of the words used in the

regulation . Rinker , supra .

The final development order does not make a finding on this

issue on e way or the other. However, by making a finding that

the tree should be preserved, and that the site plan should be

modified in order to save the tree , the DRB implicitly ignored

the requirement in the regulation that the designee shall

approve the remov al of the tree upon a showing that reasonable

development of the site cannot occur . Therefore, the DRB

departed from the essential requirements of the law b y

incorrectly interpreting this Section. (This conclusion is also

dependent on whether there is an y competent substantial evidence

in the record to support a contrary determination. If there is

none, as the undersigned has concluded below, then the DRB's

decision should be reconsidered. )

In reaching this conclusion, the undersigned has considered

the City's contention that the following portions of Subsections

(f) and (g) of the same regulation must also be considered in

pari materia with Subsection (e) in determining whether removal

of the tree is justified:

(f) Removal or relocation approval in

con junction with other approval.

When tree removal or relocation is

contemplated in conjunction with any

development requiring approval of a

development plan or subdivision plat by the

development review board or plan board, such

removal or relocation shall be considered

and either approved or denied by the

development review board or plan board at

the same time a development plan or plat is

approved or denied based upon the same

standards for approval as specified in

subsection (e) of this section.

(g) St andards for tree relocation or

replacement. As a condition of the granting

of a permit, the applicant will be required

to replace or relocate the trees being

removed with suitable replacement trees

. . . . In determining the required location

of reloc ated or replacement trees that will

be planted either on - site or offsite, the

city manager or designee, or the development

review board or plan board the developments

specified in subsection 30 - 254(f), shall

consider the needs of the intended use of

the pr operty together with a realistic

evaluation of the following:

(1) Existing tree coverage, including

percentage of canopy.

(2) Number of trees to be removed on the

entire property.

* * * *

(5) Character of the site and its envir ons.

* * * *

(9) The health and desirability of existing

trees.

* * * *

Subsection (f) provides that if removal of trees is sought

in conjunction with approval of a development site, as is the

case here, the DRB must still use the substantive criteria in

Subsection (e) in deciding whether an existing tree prevents the

reasonable development of the site. Su bsection ( f) does not

change that responsibility or alter the standards to be used .

Likewise, the cri teria in Subsection (g) are factors that

are used only for the purpose of "determining the required

location of relocated or replacement trees that will be planted

either on - site or offsite . . . ." They are not criteria for

the decision whether to allow the removal of a H eritage tree.

Therefore, factors such as the existing tree coverage, the

number of trees to be removed on the entire property, the

character of the site, and the health of existing trees apply

only when deciding whe re to locate the repla cement trees that an

applicant will plant as mitigation for the removed trees.

Accordingly, i t is concluded that Subsection (g) does not apply

in determining whether the 58 - inch tree should be removed .

Finally, assuming that the current design of the proj ect

must satisfy Condition 4 of the original PUD, given the Record

below, Appellant has provided the City with "a layout that

better implements the design criteria set forth in these

conditions which required removal of any of these trees."

App ellant next argues that the condition in the final

development order which requires that "the two (2) Live Oak

trees must be saved with an area preserved under each tree,

equal to at least 50% of the area of the dripline " is ambiguous

(and therefore legally incorrect) since Section 30 - 264(a)(1),

LDC, specifically allows an applicant to choose either of two

methods for preserving the dripline around a tree. As noted

earlier, t he final development order did not specify whether the

area within the dripline should be pres erved in its natural

state or with pervious landscape materials. However, during

oral argument, the City represented that the DRB intended to

all ow Appellant to choose either method for its final site plan ,

so long as the option chosen comports with the C ode.

The correct standards for determining the manner in which

the area within the dripline of an existing tree to be preserved

are found in Section 30 - 264 (a) (1) , LDC, which reads as follows:

(a) To receive credit for the preservation

of an existing tre e, the following

requirements must be met:

(1) Fifty percent of the area within the

dripline shall be naturally preserved or

provided with pervious landscape material

and shall be maintained at its original

grade with no trenching or cutting of roots

in t his area. Within this area, there shall

be no storage or fill or compaction of the

soil, as from heavy construction equipment,

or any evidence of concrete, paint,

chemicals or other foreign substances in the

soil.

Under the terms of this regulation, an applicant may be

credited with saving an existing tree if fifty percent of the

dripline is naturally preserved or if it uses pervious landscape

materials in an area comprising at least fifty percent of the

dripline. In other words, an applicant has the o ption of

preserving fifty percent of the area within a tree's dripline in

its natural state or with pervious landscape materials, so long

as trenching and cutting of roots does not occur. In this case,

Appellant's right to use pervious landscape materials is even

more compelling since the UFI report determined that Appellant's

intended use of those materials adequately protected the 58 - inch

tree, and the City Arborist reaffirmed that statement at the

local hearing. Therefore, in order to be consistent wit h the

Record, the final development order should provide that

Appellant is entitled to provide a final site plan that meets

the pervious landscape material requirements.

Appellant next argues that the DRB departed from the

essential requirements of the l aw by requiring that it maintain

a permanent fifteen - foot buffer zone around the two 58 - inch

trees. In recommending this condition, the City Arborist relied

upon Section 30 - 255, LDC, which she interpreted as requiring an

applicant to protect the entire ra dius of a tree's dripline .

Because the dripline s of the two 58 - inch trees are forty - one

feet, she reasoned that a fifteen - foot buffer was clearly

authorized by the regulation.

Section 30 - 255, LDC, applies only to protective measures

during development a nd construction of the property . It

requires that regulated trees within fifteen feet of

construction activity be protected and that the temporary

protective barrier be placed at least at the dripline. Th e

barrier zones required by the regulation are int ended to be

temporary and to not interfere with necessary construction, such

as development within the barrier. Before construction activity

begins, protective barriers are required to be placed at or

outside each H eritage tree's dripline and removed when

landscaping starts. § 30 - 255(a) and (b)(2)(a), LDC. Before

landscaping begins, the barriers may be removed during

construction if "construction needs dictate a temporary removal

that will not harm the tree." § 30 - 255(b)(5), LDC. Therefore,

the regulat ion does not govern what may be approved as

development and does not prohibit construction activity within

the barrier if such construction is necessary for approved

development up to five feet from a tree trunk.

Section 30 - 264, LDC, is entitled "Tree pr otection

requirements generally." As the title clearly states, the

regulation provides standards for protecting trees after

construction of a site is completed. 2 Paragraph (a)(4) prohibits

any pervious surface or grade change within five feet of the

trun k of a tree that is to be protected. This means that a

separation of at least five feet from the trunk to the curbing

is required in order to satisfy th e Code. While Appellee

suggests that Paragraph (a)(4) does not conflict with its

condition that a perm anent minimum fifteen - foot separation be

maintained, the plain language in the regulation states

otherwise. By relying on an incorrect regulation (Section 30 -

255, LDC) as a basis for requiring a permanent fifteen - foot

buffer , and ignoring the standard in Section 30 - 264(a)(4), LDC,

which allows a buffer of no less than five feet, t he DRB

departed from the essential requirements of the law. 3

In reaching th ese conclusion s , the undersigned has

considered the City's argument that if an applicant is required

under Section 30 - 255, LDC, to place protective barriers around a

tree during construction and development so that no construction

takes place within fifteen feet of a tree, it logically follows

that constructed objects, such as buildings, sidewalks, or ot her

paved surfaces, may not later exist in that area. However, the

standards in Section 30 - 255 appl y only to "tree preservation

during development and construction," and do not apply af ter

construction is completed. Otherwise, the five - foot requirement

i n Section 30 - 264(a)(4), LDC, would be completely moot and

meaningless if permanent development cannot come within fifteen

feet of a tree. Regulations should be construed so as to give

effect to their provisions. See , e.g. , Powell v. City of Delray

Beach , 711 So. 2d 1307, 1309 (Fla. 4th DCA 1998).

Finally, Appellant argues that there is no competent

substantial evidence to support the conditions in the final

development order. These conditions include the preservation of

both 58 - inch tree s , the preserv ation of an area equal to fifty

percent of the dripline of each tree in their natural state, and

a minimum fifteen - foot buffer between the trees and any

buildings or infrastructure.

Under Section 30 - 254(e), LDC, the removal of a regulated

tree "shall be approved" if one of the following finding s is

made: the tree poses a safety hazard; the tree has been

weakened by disease, age, storm, fire, or injury; or the tree

will "prevent the reasonable development of the site." Here,

Appellant argued and proved t hat not being able to remove one of

the two 58 - inch heritage trees will prevent reasonable

development of the site due to financial, legal, and physical

constraints. The City did not offer any competent substantial

evidence to counter those arguments. Be cause t he only

substantive criteria to govern this decision are found in

Section 30 - 254(e), LDC , testimony by the City Arborist that the

tree is "beautiful," "the strongest that the forest has to

offer," and other similar testimony is irrelevant to this

de cision. Likewise, conclusory testimo ny by Mr. Calderon

(without a factually - based chain of underlying reasoning) that

the building (and presumably the parking lot) could be

reconfigured "this way or this way" or "here and there" to allow

both trees to be saved, did not rise to the level of evidence

th at is competent and substantial . See , e.g. , City of Hialeah

Gardens v. Miami - Dade Charter Foundation, Inc. , 857 So. 2d 202,

204 (Fla. 3d DCA 2003)(generalized statements made in opposition

to a development pr oposal, even those from expert witnesses,

must be disregarded); Division of Administration , Department of

Transportation v. Samter , 393 So. 2d 1142, 1145 (Fla. 3d DCA

1981)("[n]o weight may be accorded an expert opinion which is

total ly conclusory in natur e and is unsupported by any

discernible, factually - based chain of underlying reasoning").

Therefore, there is no competent substantial evidence to support

the condition that requires Appellant to preserve the second

58 - inch tree (and which implicitly den ied Appellant's request to

remove the tree because of its inability to develop the property

without removal of the tree ) .

Second, the condition in the final development order that

the trees shall be pr otected by preserving fifty percent of

their driplines must be interpreted to mean that Appellant may

choose to preserve the existing trees by using pervious

landscape materials . S ee Section 30 - 264 (a)(1) , LDC . Th is is

especially true here since the staff reasoning to support this

condition is based upon an erroneous application of Section 30 -

255, LDC. See also endnote 3, infra .

Third, the condition prohibiting construction no closer

than fifteen feet from the trunk of the tree is not based on, or

supported by, the LDC , or by the testimony of any witness.

S ection 30 - 255(a), LDC, does not establish a fifteen - foot

construction barrier, as the City claims. As noted above, i t

requires that regulated trees within fifteen feet of

construction activity be protected and that the temporary

protective barrier be plac ed at least at the dripline. The

driplines for both 58 - inch trees are substantially larger than

fifteen feet around the tree. Section 30 - 264, LDC, preserves a

radius of five feet around the trunk of a regulated tree and

regulates an area amounting to at least fifty percent of the

tree's dripline. See § 30 - 264(a)(1) and (4), LDC. Likewise,

testimony by the City Arborist was based on an incorrect

interpretation of the LDC and cannot support the condition. (At

the local hearing, when reminded that the LDC permits a five -

foot separation rather than the fifteen - foot separation that was

being recommended, the City Arborist agreed that she had

"misspoke" and withdrew her "statement." Nonetheless, her final

recommendation contained a requirement for a fifteen - foot

buffer.) In view of this, it is concluded that there is no

competent substantial evidence to support the condition.

In summary, the DRB departed from the essential

requirements of the law by incorrectly interpreting Sections 30 -

254, 30 - 255, and 30 - 264, LDC, when it did not grant Appe l lant's

request to remove the 58 - inch tree, did not allow Appellant to

use pervious landscape materials around the 58 - inch tree, and

imposed a permanent fifteen foot buffer around each tree.

Finally, there is no compete nt substantial evidence in the

Record to support the se condition s .

DECISION

Based upon the foregoing, the final development order

should not be affirmed. Rather, it should be reconsidered by

the Development Review Board in light of th is Written Opinion .

DONE AND ORDERED this 26th day of May, 2006, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 26th day of May, 2006.

ENDNOTE S

1/ Section 30 - 25 8(a), LDC, provides that "[t]h e Heritage

designation is conferred on the large trees that are the major

distinguishing feature of Gainesville's urban forest," and that

with certain enumerated exceptions not relevant here, "[a]ll

native tree species are designated Heritage trees when th ey reach

the size of 20 inches in diameter when measured at 4 1/2 feet

above ground level." Section 30 - 254(a) ( 2), LDC, also provides

that "[n]o Heritage or Champion trees as defined in this article

may be removed or relocated except as specifically provid ed in

this article."

2/ Th at this regulation applies to post - construction activities

is obvious since Subsections (b) and (c) require that in order to

receive credit for preserving an existing tree, an applicant must

submit proof that "such tree is heal thy and has not been

seriously damaged during development," and that a tree must be

"alive and healthy one year after all associated construction and

development of the property is completed . "

3/ Although not argued by the City, the undersigned has also

given consideration to the testimony of the City Arborist who

initially opined (without supporting facts) that pervious paving

would require trenching and cutting of roots and therefore the

preservation of the 58 - inch tree in its natural state was

necessa ry. However, by adopting the finding of the UFI, who

concluded that the use of pervious landscape material would

adequately protect the tree, the witness effectively recanted her

testimony on this issue .

COPIES FURNISHED:

Thomas Saunders, Director

De partment of Community Development

Thomas Center B

306 Northeast 6th Avenue

Gainesville, Florida 32601 - 5476

Karen A. Brodeen , Esquire

Fowler, White, Boggs & Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302 - 1240

Daniel M. Nee, Esquire

Assist ant City Attorney

200 East University Avenue, Suite 423

Gainesville, Florida 32601 - 5456