06-005153 The University Park Neighborhood Association vs. City Of Gainesville Status: Closed DOAH Final Order on Tuesday, April 17, 2007.

Summary: Appellee did not misconstrue the height provision in the Land Development Code or make a finding of compatibility without competent substantive evidence. The Plan Board`s decision is affirmed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSITY PARK NEIGHBORHOOD )

ASSOCIATION, )

)

Appellant , )

)

vs. ) Case No . 0 6 - 5153

)

CITY OF GAINESVILLE, )

)

Appellee , )

)

and )

)

WILLIAM AND JACKIE REI CHARDT )

and STOCK REAL ESTATE )

DEVELOPERS, INC., )

)

Intervenors. )

______________________________)

WRITTEN OPINION

Appellant, University Park Neighborhood Association

(Association or Appellant) , seek s review of a decision by the

Plan Board ( Board ) of Appellee, City of Gainesville (City), on

November 6, 2006, which approved an application by Intervenors,

William and Jackie Reichardt (the Reichardts or applicants ), for

a special use per mit. The Division of Administrative Hearings

(DOAH), by contract, and pursuant to Sectio n s 30 - 234(l) and 30 -

352.1, Land Development Code (LDC), has jurisdiction to consider

this appeal. Appellant submitted an Initial Brief on

February 15, 2007. The C ity and Intervenors submitted Answer

Brief s on February 27, 2007. Finally, Appellant submitted a

Reply Brief on March 6 , 2007. Prior to the submission of

briefs, the parties submitted a Record, which consis t ed of

twelve items and 113 pages, including a d igital video disc of

the Board's meeting. Because Items 13 , 14 , and 15 (pages 114 -

172) were inadvertently omitted in the original filing , an

Amended Record was filed by the City on March 1 4 , 2007. In

addition, a Transcript of the Board's meeting has been prepared

and filed by the parties. Oral argument was presented by the

parties during a telephon ic hearing held on April 10, 200 7 .

I. I SSUES

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

Board misconstrued a provision in the Special Area Plan for

College Park (Special Area Plan) of the Urban Mixed - Use District

1 (UMU - 1) zoning classification , which prescribes the allowable

height for Type I buildings within th at district; and (2)

whether the re is competent substantial evidence to support the

B oard's decision that the development and use of the subject

property is compatible with the use and structures on the nearby

property.

II. BACKGROUND

The Reichardts are the owners of a .248 - acre parcel of

property located at 1802 West University Avenue (t he

northwestern corner of West University Avenue and Northwest 18th

Street) , in Gainesville, Florida . Int ervenor, Stock Real Estate

Developers, Inc. (Stock), is the contract purchaser of the

subject property and serves as the agent for the Reichardts with

regard to developing the property. If the permit is issued and

the sale consummated, Stock proposes to develop a project known

as the Stadium Club, a 24 - unit, eight - story , mixed - use

development containing both multi - family residential units and

ground - fl oor retail/commercial units.

The property is currently zoned UMU - 1 and is also subject

to the Special Area Plan , which is a special overlay on the UMU -

1 zoning district imposing further regulations on the

development of property within the district . See City Ordinance

No. 3779, June 10, 1992, as amended ; Record, pages 83 - 112 . The

Special Area Plan is included in the LDC as an Appendix. 1 The

intent of the Special Area Plan is t wo - fold: t o "encourage

revitalization and redevelopment of the 'College Park '

neighborhood" and to "maintain the scale, character and

integrity of the 'College Park' neighborhood."

Objective 1.1 of the Comprehensive Plan 's (Plan) Urban

Design Element encourages "traditional, pedestrian - oriented

urban areas," including "[r]elativ ely high - density mixed use"

buildings and multi - stories buildings. Record, page 114.

Policy 3.6.2 of the same Element "recognizes the potential of

College Park to be a mixed - use liveable neighborhood" by

"promoting urban e, mixed - use development." Record , page 124.

Finally, Policy 1.3.4 of the Future Land Use Element requires

that mixed - use neighborhoods "should be designed so that

densities and building heights cascade from higher densities at

the core of mixed - use to lower densities at the edges." Rec ord,

page 134.

Under UMU - 1 zoning, the minimum height for buildings is two

stories, while the maximum height is eight stories , except that

a special use permit is required for any height over six

stories. See § 30 - 65.1(d)(5), LDC , Record, page 76 . Simi larly,

the Special Area Plan provides that the "[ m ] aximum building

height shall not exceed six stories by right (and up to eight

stories by special use permit ), in accordance with Section 30 -

65.1." (Emphasis added) See Ch. 30, App. A, § 3, LDC ; Record,

p age 98 . If a special use permit is requested by an owner to

build up to the seventh or eighth floor, the owner is then

required to comply with seven criteria for issuance of a special

use permit found in Section 30 - 233 (1) - (7) , LDC.

The Special Area Plan d ivides building s into three

classifications for purposes of regulation of new construction:

Types I, II, and III. Type II and III buildings include only

houses and apartments . The Special Area Plan provides that each

story for a Type II building shall " not exceed 13 feet floor to

ceiling ," while "[t]he overall height of any [Type III] building

shall not exceed 65 feet and five stories". Record, page s 101

and 104. In contrast , Type I buildings incorporate mixed - use

residential and commercial spaces and there is no limitation on

floor height . The applicants' proposed building, as a mixed - use

building with apartments, falls within Type I. The Ordinance

provides the following height restriction for Type I buildings

within the district:

Building Height.

* * * *

3. M aximum building height shall not exceed

six stories by right (and up to eight

stories by special use permit), in

accordance with Section 30 - 65.1. The

overall height of the building cannot exceed

104 feet, except by a PD rezoning in

conjunction with a PUD land use change,

where limitations on building height and

maximum stories are set by the PUD land use

amendment, or within an existing land use

category that allows the desired height, and

implemented by the PD layout plan, PD plan

r eport and elevations .

Ch. 30, App. A, § 3, LDC ; Record, page 98 . The cited provision

is at the heart of this dispute.

Under the foregoing regulation, a Type I building may not

exceed 104 feet in height, and six stories may be constructed as

a matter of " right . " If a property owner desires to construct

"up to eight stories," that is, a seven or eight - story

structure, b ut still not exceed the 104 - foot height limitation,

the owner must obtain a special use permit. In no case may a

building rise taller th an 104 feet unless a change in zoning and

land use classification is obtained. Here, the applicant s seek

a special use permit for the purpose of adding two stories to

their building; they d o not seek a pproval for a particular

nu mber of feet of building he ight since the structure will not

exceed 104 feet.

The subject property currently contains a parking lot and a

single structure housing three restaurants. The adjacent

properties to the east, west, and north , all of which are zoned

UMU - 1, are a Catholic c hurch, a fraternity house (Delta

Upsilon), and a Christian campus center. To the south of the

property (and directly across University Avenue) is the

University of Florida campus. To the north of the site beyond

the Christian campus center and across Nor thwest First Avenue ,

which runs parallel to, and one block north of, University

Avenue , are a set of two and three - story apartment buildings and

a few one - story single - family homes . The parcel appears to be

approximately one block east of Ben Hill Griffin Stadium, a

large football stadium on the University of Florida campus.

On May 12, 2006, the applicants participated in a " F irst -

S tep " meeting to initiate discussion with the City as to the

proposed development. On September 11, 2006, the project

engine er, project architect, and the Stocks conducted a

neighborhood meeting to present the project to residents of the

College Park area and to address questions and concerns.

Besides the applicants' representatives, participants included

representatives of a fraternity and sorority house, two adjacent

property owners, and six other individuals . ( Other than the

applicants' representatives, o nly one attendee , Jimmy

Harnsberger, later appeared and spoke at the public meeting held

by the Board . )

On September 13 , 2006, the Reichardts filed their

application for a special use permit with the City's Department

of Community Development (Department) to construct an eight -

story building . Under the process in place, the Department then

analyzed the application and sub mitted a recommendation to the

Board. § 30.234(c), LDC. Thereafter, t he Board conducted an

informal quasi - judicial hearing on the permit application at a

public meeting on October 19, 2006. § 30 - 234(e), LDC. The

meeting was properly noticed and adverti sed. § 30 - 234(f), LDC.

In conjunction with the Board meeting on October 19, 2006 ,

Ralph Hilliard, Planning Manager for the City , prepared a four

and one - half page report recommending approval of the special

use permit with certain conditions. In doing so , the staff

recommended that design elements of the roof - top terrace be

changed to prevent the terrace from being classified as an

additional ninth floor. The applicants had no objection to

altering the design of the roof - top terrace to remove those

eleme nts which caused the terrace to be classified as a story.

Section 30 - 233(2), LDC, requires that before a special use

permit may be issued, there must be a finding "[t]hat the

proposed use or development will have general compatibility and

harmony with th e uses and structures on adjacent and nearby

properties." On th is issue the staff report made the following

findings :

Staff finds that the proposed project is

compatible with the surrounding land uses.

In terms of uses, the proposed development

is compat ible with surrounding development.

In terms of structure and height, the

proposed building will have the greatest

number of stories but will not be

significantly higher than surrounding

buildings to the east, south and west. The

building is not adjacent to single - family

residential where the impact would be the

greatest. It is surrounded by mostly civic,

educational and fraternal organizations,

which are not significantly affected by the

proximity of higher structures. The

building will also incorporate architectural

design and components which will enhance i ts

compatibility within the neighborhood. It

is also expected that it will act as a

catalyst to future compatible development

within the neighborhood.

The report went on to say that:

The developmen t and use continues to be

generally compatible and in harmony with the

use and structures on adjacent and nearby

properties. Land to the south is the

University of Florida campus, and the

surrounding uses to the east, west and north

include a Catholic chu rch, a fraternity

house and a Jewish Campus Center,

respectively. The proposed [sic] will

provide a mix of uses along the University

Avenue corridor, and a mixed - use pedestrian

oriented corridor in close proximity to the

University of Florida campus. Upd ates to

the public infrastructure will be included

along with pedestrian and bicycle safety

improvements provided by the project.

Although not at issue in this appeal, the staff report also

found that all other requirements had been met for issuing a

spec ial use permit , including the remaining six criteria found

in Section 30 - 233 (1) and (3) - (7) , LDC .

At the meeting on October 19, 2006 , t hree members of the

City staff, Shenley Neely , a Senior Planner for the Department

of Community Development, Lawrence C alderon, Chief of Current

Planning, and Dean Mimms, Chief of Comprehensive Planning, all

of whom are supervised by Mr. Hilliard, spoke on behalf of the

staff and /or answered questions posed by Board members . In

addition, the following individuals testifie d in support of the

project: S ergio Reyes, the project engineer; Phil and Sharon

Stock , who intend to develop the property; Al Santiestiban, the

architect ; and John Thomas, a local realtor who will market the

property once construction begins. Speaking i n opposition to

the project were Dr. Mark Goldstein, a resident of the area and

member of the Association ; Jimmy Har n sberg er , a nearby resident

and Association member; Robert Kurt, a student who attends the

Christian campus house; Charles Cook, a student; and Theodore

White , who did not give his address or occupation. (One other

individual spoke but his comments are not relevant here.)

Mr. Reyes displayed street - level renderings of the proposed

building and images of the surrounding properties. He explain ed

that three restaurants now occupy the existing building that

will be demolished if the special use permit is granted : Papa

Johns, Sloppy Gator, and "the smoothies." He acknowledged that

the developer agree s with the staff recommendation to modify the

top floor to comply with the eight - story restriction. Even at

eight stories, Mr. Reyes advised that the project would not

exceed the 104 - foot maximum height allowed by the Special Area

Plan.

Sharon Stock informed the Board that the applicant s had

spoken w ith representatives of the adjacent properties and none

had any objections to the project. She also noted the

compatibility of the façade design with design elements of the

University of Florida campus , and the fact that more parking

spaces have been prov ided than are required by the LDC . Based

on conversations with the next door neighbors, Ms. Stock

predicted that with in three years the Catholic church will have

redeveloped its parking lot, and the Delta Upsilon fraternity

will be moving and developing i ts property as well . Finally,

she pointed out that she and her husband ha ve worked closely

with the staff throughout the process in order to make certain

that the project complied with the LDC.

The project architect, Al Santiestiban, described how he

wou ld change the terrace area to a trellis, and not a roof

bulkhead, to comply with the staff's objection to the bulkhead

constituting a ninth floor on the project. He also stated that

a nother project known as the University Corners project ( located

at "17th " but whose precise location is otherwise unknown) would

be built to a height of 115 feet , or even higher than the

project here . He further noted that the design of the project

"ties in to the local university architecture."

Phil Stock indicated that the first floor of the building

would be retail space plus some parking , the second floor would

have a small common area for the building residents as well as

parking spaces accessed by a lift , and the upper floors would

consist of luxury condominium units. H e also stated that he has

"reservations" on twelve of the twenty - four units, even though

no construction or advertising has begun. Finally, he pointed

out that i f a special use permit is not approved, he intends to

construct a six - story (rather than an ei ght - story) building to a

height of 104 feet, the only difference s being the six - story

building would have higher ceilings for each floor , there would

be eighteen rather than twenty - four units, and the units would

be more expensive .

The lead realtor for th e project, John Thomas, briefly

discussed the makeup of a unit, the type of customer who would

purchase a unit, and the fact that the project would be the

nicest in the City. He stated that the condominium units will

range in price from $400,000.00 to $1, 800,000.00.

D r. Goldstein , who is a member of the Association's Board

of Directors and a resident of the neighborhood for 35 years ,

objected to the project on the ground it was "profoundly out of

character with the neighborhood." Dr. Goldstein appeared on

behalf of the Association , which is the "adjacent and affected

neighborhood group." Dr. Goldstein described the project as an

"eyesore" and a "towering monster sitting over the neighborhood

for weekend use a few times a year by very wealthy people." H e

pointed out that the new building will be "at least double over

everything else within several blocks." He also stated that the

project does not "fit in with the context of the neighborhood,

the surrounding buildings, [and] the other activities." D r.

G oldstein stated that "a floor is somewhere between 10 and 12

feet high," "[t]here's a glitch in the code" because "a six -

story building by right is something around 70 - some feet, not

104," and that "[t]aking advantage of that glitch is no t the

function of the Board." He added that "it is not by right to

have anything you want regardless of the number of feet up," and

that this view was "a misunderstanding [by] our plan board."

Jimmy Harnsberg er , who stated he was a member of the

A ssociation, urged the Boar d to restrict the project to six

stories. By doing so, this would serve as a precedent for

future projects in the area and make the project compatible with

the existing buildings and neighborhood.

Robert Kurt, a student who attends the nearby Christian

ca mpus center just north of the project but does not live in the

neighborhood , was primarily concerned that the project would

affect parking in the area by visitors "taking up street

parking." He agreed with the comments of Dr. Goldstein and

noted that the project would change the character of the

neighborhood and provide no affordable housing access for

students .

Charles Cook, a student at the University of Florida School

of Architecture , stated that this type of project is "a little

bit out of place as far as students go" and would "separate and

segregate the community" because of the price of the units.

Theodore White, who did not give his occupation or place of

residence, stated that the project would be "towering [over]

everything" and be "distracti ng." He also feared that the

fraternity next door to the Reichardts' property "might get

expelled" and then sell its property "real soon" to a developer

who would build another eight - story building.

Finally, t he City staff responded to the criticisms ra ised

by Dr. Goldstein regarding the purported ambiguity in the height

provision and stated that it did not find the Special Area Plan

height limitation for Type I buildings to be ambiguous . It

concluded that the provision clearly provided "by right" a

max imum 104 - foot allowable height for buildings within the

district . C ontrary to Mr. Goldstein's assertion, the staff

pointed out that it "is not aware of any glitch in the code."

The staff a dded that the project met all of the requirements of

the Special A rea Plan and design criteria.

At the conclusion of the hearing, the Board, by a 5 - 2 vote,

adopted the staff's recommendation and approved the application

f or a special use permit with conditions . ( The only condition

r elevant here is the condition to modif y the top floor so that a

bulkhead would be eliminated and replaced by a trellis ; the

applicants agreed to comply with this change .)

On November 6, 2006, the Board, through a City S enior

P lanner, Shenley Neely, advised Mr. Reichardt by letter that the

spec ial use permit was being issued with conditions. The letter

requested corrected plans to conform with the Board's decision

and advised that the approval was valid for one year, or until

October 19, 2007.

On November 17, 2006, the Appellant filed its app eal of

that decision pursuant to Section 30 - 352.1, LDC. An Amended

Application for Appeal was later filed on January 30, 2007,

which more fully complied with the requirements of Sections 30 -

234(l) and 30 - 352.1(a)(1)a. - c., LDC . 2

III. L EGAL DISCUSSION

The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and of the parties

pursuant to Section s 30 - 234(l) and 30 - 352.1, LDC. The former

provision provides in part that " [ a ] ny affected person may

appeal the city plan board's decision on an application for a

special use permit to a hearing officer," and that "[t]he

procedure for the appeal shall be the same as is provided in

subsection 30 - 352.1(a) for appeals from decisions of the

development review board." The latter provision provides that a

hearing officer ( administrative law judge ) is authorized to

conduct an " appellate hearing" to review a decision rendered by

th at board.

Under Section 30 - 352.1(a) (3)a.1. and 2. , LDC, the scope of

review by an administrative law j udge in an appellate hearing 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

authority to review questions of law only,

including interpretation s 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 evidence 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 is limited to determining whether

the Board departed from the essential requirements of the law in

reaching its decision, and whether its findings are supported by

competent substantial evidence.

Section 30 - 352.1(3)d.1., LDC, goes on to provide that "the

[administrative law judge] must affirm each contested decision

or find it to be an inc orrect 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 [administrative

law judge] shall submit the opinion to the de partment, 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" and stated:

We have used the term "competent substantia l

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 wou ld

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 formalities

and the introduction of testimony common to

t he 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

reasonable mind would accept it as adequate

to support th e conclusion reached. To this

extent, the "substantial" evidence should

also be "competent."

A hearing officer acting in his or her appellate review

capacity is without authority to reweigh conflicting testimony

presented to the Board or to substitute hi s or her judgment for

that of the Board on the issue of credibility of witnesses. See

Haines City Community Development v. Heggs , 658 So. 2d 523, 530

(Fla. 1995).

The question on appeal is not whether the record contains

competent substantial evidence s upporting the view of Appellant;

rather, the question is whether competent substantial evidence

supports the findings made by the Board . Collier Medical

Center, Inc. v. Department of Health and Rehabilitative

Services , 462 So. 2d 83, 85 (Fla. 1st DCA 1985 ).

The issue of whether the Board "complied with the essential

requirements of law" is synonymous with whether the Board

"applied the correct law." Haines City Community Development ,

658 So. 2d at 530.

The Board's decision approves the issuance of a s pecial use

permit , which authorizes the Reichardts to construct an eight -

story building on their property ( not to exceed the maximum 104 -

foot height limitation) . In its Amended Application for Appeal,

Appellant raise s two broad arguments in support of its

contention that the decision should not be affirmed: (1) that

the Board departed from the essential requirements of the law by

misconstruing " the applicable height provision in the College

Park Special Area Plan " ; and (2) that the Board's decision is

not supported by competent substantial evidence. As to the

latter ground, Appellant's Initial Brief provides further

clarifi cation and argues that there is no competent substantial

evidence to support the Board's decision that the project will

have general c ompatibility and harmony with the uses and

structures on adjacent and nearby properties , as required by

Section 30 - 233(2), LDC .

A . Was there a departure from the essential requirements

of the law ?

Appellant argues that the second sentence of the provisi on

governing height limitations for Type I buildings in the Special

Area Plan was misconstrued by the Board when it issued the

special use permit. Th at provision reads as follows:

Building Height.

* * * *

3. Maximum building height shall not exceed

six stories by right (and up to eight

stories by special use permit), in

accordance with Section 30 - 65.1. The

overall height of the building cannot exceed

104 feet, except by a PD rezoning in

conjunction with a PUD land use change,

where limitation s on building height and

maximum stories are set by the PUD land use

amendment, or within an existing land use

category that allows the desired height, and

implemented by the PD layout plan, PD plan

report and elevations.

App. A, § 3, Exh. B, LDC; Record, page 98.

S pecifically, Ap pellant argues that the Board

misinterpreted the second sentence in paragraph 3 of the

Building Height provision by concluding that property owners

within the Special Area Plan have an absolute right to construct

a 104 - foot buil ding , a position taken by the staff and adopted

by the Board when considering this matter . Appellant further

argues that by misconstruing this provision, and accepting as

fact that an owner by right can construct a building not to

exceed 104 feet, the Boa rd did not consider the building's

height and scale when it determined that the building was

compatible with nearby properties. Secondarily, Appellant

argues that the Board's interpretation is in conflict with other

parallel provisions of the LDC, namely, the height provisions

for Type II buildings, in which a story cannot "exceed 13 feet

floor to ceiling" (Record, page 101), and Type III buildings,

which cannot "exceed 65 feet and five stories [in height],

except if the property is zoned planned developme nt ," which

equates to a similar maximum floor height of 13 feet. ( Record,

page 104 ) (The LDC does not provide a similar limitation for

Type I buildings ; instead, it simply requires that the first

story "shall be at least 10 feet floor to ceiling height . " )

During oral argument, Appellant conceded that the height

and story limitation language is not ambiguous. At a later

point, h owever, it suggested that the language is ambiguous in

that the sentence in which the 104 - foot height limitation is

found does n ot specify how or when an owner may construct a

building to that height. Appellant appears to suggest that

because the words "by right" do not appear in the sentence,

there is a resulting ambiguity , and in order to build a

structure to 104 feet, an owner would probably need to secure

separate approval to do so during the site review process.

Appellant's interpretation of the language in question is

not accepted. The Board did not err in construing the provision

in the manner that it did. The maximum he ight language (in

terms of stories and feet) for Type I buildings is clear and

unambiguous: "maximum building height may not exceed six

stories by right (and up to eight stories by special use

permit)" (emphasis added) , while the " overall height of the

bu ilding cannot exceed 104 feet . " Record, page 98. The fact

that these two limitations are not contained in the same

sentence does not create an ambiguity. Under established rules

of statutory construction, w here a statute is plain and

unambiguous, it is unnecessary to engage in statutory

construction or interpretation. Forsythe et al. v. Longboat Key

Beach Erosion Control District , 604 So. 2d 452, 454 (Fla. 1992).

Municipal ordinances are , of course, subject to the same rules

of construction as are stat e statutes. See , e.g. , Rinker

Materials Corp. v. City of North Miami , 286 So. 2d 552, 553

(Fla. 1973). Therefore, the Board did not act im properly when

it construed the statute in the exact way it was written.

Even if one accepts Appellant's argument tha t the provision

is susceptible to more than one interpretation, and the City's

intent is unclear, the Board's construction of the height

limitation is a reasonable and logical one and is not clearly

erroneous. Compare , e.g. , Eager et al. v. Fla. Keys Aque duct

Authority , 580 So. 2d 771, 772 (Fla. 3d DCA 1991)(an agency's

interpretation of its rules will not be overturned unless the

interpretation is clearly erroneous). When the two sentences in

the height provision are read in pari materia , it is not

unrea sonable to construe the language to mean that as a matter

of right, property owners in the Special Area Plan may construct

buildings not to exceed six stories or 104 feet in height.

Appellant also argues that by construing the provision in

the manner that it did, the Board could not consider the

building's height and scale when determining whether the

structure is compatible with nearby properties. However, the

City has established other criteria in Section 30 - 233, LDC,

which require, among other things, t hat when issuing a special

use permit, the Board must consider the structure's height and

scale in terms of compatibility with the neighborhood. 3

Appellant further argues that the provision governing Type

I buildings must be read in pari materia with th ose provisions

in the Special Area Plan which specify that floors in Type II

and III buildings may not exceed 13 feet in height . While

Appellant says it is not suggesting that a similar 13 - foot

height limitation be applied to Type I buildings, it argues t hat

these other limitations "support a judicial inference that the

City did not intend to grant an absolute 104 - by - right foot

height to developers seeking to erect Type I structures with six

or fewer stories." I n other words, Appellant argues that the

Cit y intended for there to be a relationship between the number

of stories and a building's proposed height, and if the Board's

interpretation here is accepted, it would "disaggregate" this

relationship. However, there is no inconsistency or conflict

between these provisions. Legislative (and local government )

provisions are considered inconsistent "only if in order to

comply with one provision a violation of the other is required."

Phantom of Clearwater, Inc. v. Pinellas County , 894 So. 2d 1011,

1020 (Fla. 2nd DCA 2005). Here, t he applicant s and the Board

have complied with all provisions of the Special Area Plan, the

Comprehensive Plan, and the Land Development Code.

Obviously, the City intended a different standard for Type

I offices and mixed - use bui ldings than for Type II and III

house s , apartments, and townhouses. Had it intended to apply

the same floor height to all three categories, it could have

easily done so. As the court noted in Paragon Health Services,

Inc. v. Central Palm Beach Community Mental Health Center, Inc.

et al. , 859 So. 2d 1233, 1235 - 36 (Fla. 4th DCA 2003), "[w]here

the [City] has included a specific provision in one part of a[n]

[Ordinance] and omitted it in another part, we must conclude

that it knows how to say what it means, and its failure to do so

is intentional." Whether or not the City anticipated the

occurrence of a particular situation, such as the construction

of a six - story, 104 - foot building as a matter of right , is not

indicative of ambiguity of the Ordinance. Fors ythe et al. v.

Longboat Key Beach Erosion Control District , 604 So. 2d 452, 456

(Fla. 1992).

Finally, if Ap pellant's view were accepted , the Board would

be modifying the express terms of the Ordinance, which is not

permitted where, as here, the language in the Ordinance is clear

and unambiguous. See , e.g. , Fla. Farm Bureau Casualty Insurance

Co. v. Cox , 943 So. 2d 823, 828 (Fla. 1st DCA 2006).

Therefore, it is concluded that the Board did not depart

from the essential requirements of the law by miscons truing the

height provision for Type I buildings in the Special Area Plan.

B . Is there competent and substantial evidence to support

the Board's findings on compatibility ?

Appellant next contends that the Board's finding that the

project will be compat ible with the surrounding area is not

supported by competent and substantial evidence. In resolving

this contention, one need not determine whether there is

competent substantial evidence supporting a finding in

Appellant's favor . Rather, the issue is wh ether t here is any

competent substantial evidence to support the Board's finding

that Section 30 - 23 3 (2), LDC, has been satisfied. See , e.g. ,

Dorian et al. v. Davis et al. , 874 So. 2d 661, 663 (Fla. 5th DCA

2004)(a local government's quasi - judicial decisio n should be

upheld if there is any competent substantial evidence to support

it).

In complying with th is criterion, which requires

compatibility of the proposed structure with " adjacent and

nearby properties," it was appropriate for the Board to consider

not only the residential uses to the north of the subject

property, but also the adjacent University of Florida, with its

large public buildings and football stadium , and the adjacent

institutional uses . Further, the LDC requires only that there

be "gene ral" compatibility and harmony with the neighborhood,

and not that the proposed structure be identical to , or a carbon

copy of, the existing structures and uses.

Here, there was t estimony that the adjacent Catholic church

was "happy" with the project; th at the adjacent Christian campus

center "concurred" with what was being done; that the adjacent

fraternity house did not object to the project; that the design

elements incorporated into the façade of the proposed building

w ere compatible with the "local u niversity architecture" across

the street; that even though the building would be taller than

adjacent buildings, the trend in the area is or will be towards

larger developments; that the developer worked closely with the

City staff to ensure that all LDC requirements were being met;

that the project will be near two and three - story apartment

buildings and form a stepping stone ( or transition ) from eight

stor i es to three stories to two stories to the one - story single -

family homes which are found further to the north of the

project ; and that the project serves the purposes of the Special

Area Plan, the Comprehensive Plan, and the LDC by introducing

residential and retail units in a mixed - use development with on -

site parking.

Besides the testimony at the mee ting, the staff submitted a

report , adopted by the Board, which contains a lengthy section

outlining in detail the reasons wh y the project is compatible

with the adjacent areas. Among other things, the report

indicates that no single - family homes are adja cent to the site ;

that the property is surrounded by "mostly civic, educational

and fraternal organizations" ; that "the architectural design and

components . . . will enhance its compatibility within the

neighborhood" ; that the project would "provide a mix of uses

along the University Avenue corridor, and a mixed - use ,

pedestrian - oriented corridor in close proximity to the

University of Florida campus"; and that the proposed development

and use will be "compatible and in harmony with the use and

structures o n adjacent and nearby properties." Given this

factual predicate, which a reasonable mind would accept as

adequate to support the conclusion reached, it is concluded that

the re is competent substantial evidence to support the Board's

finding on this issue.

Because the Board did not depart from the essential

requirements of the law in construing the building height

provision in the Special Area Plan, and there is competent

substantial evidence to support the challenged finding, the

Board's decision should b e affirmed.

DECISION

Based upon the foregoing, the decision of the City Plan

Board dated November 6, 2006, to issue a special use permit to

William and Jackie Reichardt is AFFIRMED.

DONE AND ORDERED this 17th day of April, 2007, in

Tallahassee, Leon Cou nty, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850 ) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of April, 2007.

ENDNOTE S

1/ The Ordinance states that the Special Area Plan applies to

"property generally located north of West University A venue and

south of Northwest 5th Avenue, between Northwest 20th Terrace and

Northwest 20th Street between [Northwest] 3d Avenue and

[Northwest] 5th Avenue on the west side and Northwest 15th Street

on the east side; and that area north of West University A venue

and south of Northwest 7th Avenue, between Northwest 15th Street

on the west side and Northwest 13th Street on the east side."

(Record, page 83)

2/ The initial Appeal simply stated , without further

explication, that it wished to "institute an appe al of a Special

Use Permit for an 8 Story Tower in the University Park

Neighborhood" on behalf of the University Park Neighborhood

Association. However, Section 30 - 352.1(a)(1)a. - c., LDC, requires

that an application for appeal contain, at a minimum, a num ber of

items, including "the specific error alleged as the grounds of

the appeal." Th e required information was included in the

Amended Application for Appeal.

3/ The staff consider ed this issue in its re port when it noted

in part that "[i]n terms of st ructure and height, the proposed

building will have the greatest number of stories but will not be

significantly higher than surrounding buildings to the east,

south and west. The building is not adjacent to single - family

residential where the potential i mpact would be the greatest."

(Record, page 16) The Board accepted this recommendation.

COPIES FURNISHED:

Thomas Saunders, Director

Department of Community Development

Thomas Center B

306 Northeast 6th Avenue

Gainesville, Florida 32601 - 5476

Dr. Mark K. Goldstein

1512 Northwest Seventh Avenue

Gainesville, Florida 32603 - 1209

Daniel M. Nee, Esquire

Assistant City Attorney

200 East University Avenue, Suite 423

Gainesville, Florida 32601 - 5456

Patrice F. Boyes, Esquire

Patrice Boyes, P.A.

408 West Univ ersity Avenue

Suite PH

Gainesville, Florida 32601 - 5281

NOTICE OF RIGHT TO JUDICIAL REVIEW

Section 30 - 234(l), LDC, provides that "[j]udicial review shall be

available as provided in section 30 - 352.1 ." Under that

provision, if the decision of the Plan B oard is affirmed, the

Written Opinion is "deemed to be final action of the decision -

maker and shall be subjected to no further review." The Written

Opinion "may then be appealed to the appropriate court within 30

days of the order by an action in the natu re of a writ of

certiorari."