09-004240 Wal-Mart Stores East, L.P. vs. City Of Gainesville Status: Closed DOAH Final Order on Wednesday, October 28, 2009.

Summary: The Board's denial of Wal-Mart's development plan is supported by competent substantial evidence in the record and, therefore, is affirmed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAL-MART STORES EAST, L.P., )

)

Appellant, )

)

vs. )

)

CITY OF GAINESVILLE, ) Case No. 09-4240

)

Appellee, )

)

and )

)

JOHN HUDSON, )

)

Intervenor. )

)

FINAL ORDER

Appellant, Wal-Mart Stores, East, LP (Wal-Mart), seeks

review of a quasi-judicial decision of the City of Gainesville

Development Review Board rendered on July 9, 2009, which denied

Wal-Mart's development plan application. No written order was

issued by the Board.

This appeal is taken pursuant to Section 30-352.1 of the

City’s Land Development Code (Code), which provides that a

decision of the Land Development Board may be appealed to a

hearing officer whose review must be limited to the record and

applicable law. The hearing officer may not reweigh the

evidence but must decide only whether competent substantial

evidence supports the decision under review.

Under a contract between the City and the Division of

Administrative Hearings, an administrative law judge of the

Division was assigned to act as the hearing officer for this

appeal. A pre-hearing conference was held to determine the

record on appeal and to establish the schedule for submittal of

the parties’ briefs. On October 5, 2009, oral argument was

received at a hearing held in Gainesville. The hearing was open

for attendance and observation by members of the general public.

Section 30-161(a)(2) of the Code provides that, in the

review of a development plan application, the Development Review

Board shall consider “[w]hether the proposed development is

consistent with the comprehensive plan, the land development

code, applicable special area plans and other applicable

regulations.”

The Record Evidence

Wal-Mart’s application requested approval of a 186,000-

square-foot “Supercenter” department store, a 14,000-square-foot

garden center, and two outparcel buildings of 3,000 and 5,000

square feet on a 32-acre parcel at the corner of N.W. 34th

Street and N.W. 23rd Street in Gainesville.

The Wal-Mart site has a future land use designation under

the Gainesville Comprehensive Plan of Mixed-Use Medium-

Intensity. Policy 4.1.1 of the Future Land Use Element requires

that buildings in this land use category face the street and

have “modest (or no) front setbacks."

The Wal-Mart site is zoned Mixed Use-2 (MU-2) under the

Code. The purposes and objectives of the MU-2 zoning district

are set forth, respectively, in Section 30-65(a) and (b) of the

Code. The stated purposes of the MU-2 district are to provide a

mix of retail, professional, service, and residential uses, and

to reduce vehicular trips by providing for basic needs and

employment opportunities within close proximity to residential

areas in a “compact urban form.” Two objectives of the zoning

district are to coordinate with adjacent residential areas,

provide for minimal overlap in market areas, and promote

pedestrian and non-automotive access within the district and

from surrounding residential areas.

Section 30-65(d) of the Code contains requirements

applicable to developments over 50,000 square feet in size

within the MU-2 zoning district. The “dimensional

and accessory structures.” The maximum front yard setback is

set forth in Section 30-65(d)(2)3.:

Front Yard. The maximum setback shall be

the average setback of existing development

in the same face [sic] block face; however,

when there is no existing development in the

same block face, the setback shall be

between 15 and 80 feet.

The term "block face" in Section 30-65(d)(2)3. is defined

elsewhere in the Code:

Block face means a unit of property abutting

a common street, on both sides of such

street, and lying between the two nearest

intersecting or intercepting streets or

nearest intersecting or intercepting street

and railroad right-of-way or waterway, golf

course, campus, park or other designated

open space. Whenever a block face exceeds

1,320 feet without intersecting or

intercepting streets or railroad rights-of-

way, waterways, golf courses, campuses,

parks or other designated open spaces, it

shall be divided into equal segments of no

more than 1,320 feet each. Whenever

application of the above criteria results in

a division of a single parcel between two

block faces, the parcel shall be included in

the block face in which it primarily falls.

The City planning staff determined that the block face for

the Wal-Mart development is N.W. 23rd Street, from the entrance

on N.W. 34th Street to N.W. 62nd Avenue. Because there is no

existing development on the block, the staff determined that the

15-to-80-foot front setback requirement is applicable. However,

Wal-Mart proposes to locate its Supercenter about 290 feet from

N.W. 23rd Street.

The City planning staff stated in an August 2008 site plan

evaluation report that, if outparcel buildings were developed on

the Wal-Mart site within 15 to 80 feet of N.W. 23rd Street, Wal-

Mart’s Supercenter would not have to meet the front setback

requirement:

In order to comply with this [front setback]

requirement, it is possible to locate

buildings in front of the Walmart along NW

23rd Street. Specifically, staff recommends

locating two outparcel buildings within the

15’-80’ setback – one near the southernmost

entrance to the parking area from NW 23rd

Street and one at the corner of NW 23rd

Street and NW 62nd Avenue. In the case of

developments with outparcels in the MU-2

district, the outparcel buildings are then

required to meet the yard setback

requirements.

In a January 2009 site evaluation report, the staff

repeated this position:

In the case of developments with outparcels

in the MU-2 district, only the outparcel

buildings are required to meet the yard

setback requirements (Section 30-65(d)(4)).

Although there are two outparcels on the

development plans, there are no buildings

shown on these outparcels, and so it is

difficult to evaluate whether the setback

requirements will indeed be met.

* * *

Planning staff recommends that some sort of

measure be included with these plans that

ensures that the outparcel buildings are

actually constructed.

The front set-back issue was discussed at a non-quasi-

judicial, conceptual review hearing of the Development Review

Board held on February 12, 2009. Scott Wright, a City planner,

told the Board that “the Code is not incredibly clear on that,”

but informed the Board that he believed the Supercenter did not

have to be located within 80 feet of the street. A memorandum

from a City commissioner who disagreed with the staff’s

determination regarding the front setback requirement was read

to the Board.

In March 2009, Wal-Mart provided additional supporting

documentation to the City staff. With regard to the front

setback issue, Wal-Mart stated its agreement with the staff’s

determination that the block face was the entrance on 34th

Street to N.W. 62nd Avenue, and the determination that there was

no existing development on the block. Wal-Mart stated further

that, to comply with the front setback requirement, it proposed

to develop two outparcel buildings within 80 feet of N.W. 23rd

Street.

In April 2009, the planning staff produced another site

plan evaluation report. The staff took the same position that

it had previously taken on the front setback requirement. The

report indicates that Section 30-65(d)(3) was a basis for the

staff’s determination. That section states:

Multiple structures. The use of multiple

structures shall be considered on a case-by-

case basis during development plan approval.

Approval shall be conditioned upon findings

by the development review board or city plan

board that all such structures are

compatible with the uses and purposes of the

center and surrounding uses and traffic

patterns and are safely incorporated into

the overall transportation system for the

center.

The planning staff reasoned that, if there are multiple

buildings on a site, the appropriate setback is subject to a

case-by-case consideration. Nevertheless, the staff continued

to advise Wal-Mart that the two outparcel buildings would have

to comply with the 15-to-80-foot front setback requirement.

The Development Review Board held a quasi-judicial hearing

on May 14, 2009, to consider Wal-Mart’s application for

development plan approval. The planning staff recommended

approval of the development plan, with conditions.

Mike Hetzberg, a planner for Wal-Mart, testified that there

was nothing in the Land Development Code that indicates which

building has to meet the front setback requirement.

Mr. Hertzberg agreed that the “multiple structures” provision of

the Code was applicable to Wal-Mart’s development plan and

allowed for a deviation from the front setback requirement for

the Supercenter.

Rachel Swaysland, a planner testifying on behalf of

Intervenor John Hudson, testified that Wal-Mart’s development

plan violated Section 30-65(d)(2) of the Code because that

provision requires that all principal and accessory structures

comply with the 15-to-80-foot front setback requirement.

Ms. Swaysland also discussed the basis of her opinion that the

development plan was inconsistent with comprehensive plan

policies and Land Development Code provisions that are intended

to prevent overlapping market areas and to promote pedestrian

connectivity and integration with surrounding land uses.

Some Board members expressed support for the project and

others expressed concerns about the “big box” and automobile-

oriented design of the project, the lack of pedestrian-friendly

elements, and the setback of the Supercenter. A motion to

approve Wal-Mart’s development plan failed to pass. A motion

was then made to continue the hearing to allow Wal-Mart an

opportunity to make changes to the project that would address

the Board’s concerns. That motion passed.

Mr. Wright, the City planner, asked the Board for

clarification as to whether “you are expecting that the

principal building should meet that 15-to-80-foot setback that

we’ve been discussing.” One Board member answered

affirmatively. Another Board member said, in essence, “not

necessarily,” but wanted a more pedestrian-oriented design.

In the planning staff’s June 2009 site plan evaluation

report, the outcome of the Board’s May hearing was characterized

as providing “direction to improve the development plan by

enhancing pedestrian features and connectivity.” The June

report repeated the staff’s determinations about the block face,

the 15-to-80-foot front setback requirement, and the Board’s

discretion to allow the Supercenter to be located farther than

80 feet from the street because of the “multiple structures”

provision of the Code. The staff again recommended approval

with conditions.

On July 9, 2009, the Development Review Board held its

second quasi-judicial hearing on Wal-Mart’s development plan.

Mr. Wright made a presentation to the Board in which he repeated

his belief that, when multiple buildings are proposed, the Board

has the ability to approve the location of the buildings on a

case-by-case basis:

Obviously, the main building does not meet

the front setback requirement, but it’s

staff’s interpretation that this proposed –

the proposed outparcel buildings meeting the

setback is allowed by the Code, and that,

basically, it is at the DRB’s discretion to

allow this – this type of arrangement.

At the hearing, Wal-Mart’s attorney, Ron Carpenter, showed

the Board a site plan which placed the Supercenter within 80

feet of the street. He then explained why Wal-Mart believed

that design was not a good one and why Wal-Mart was seeking

approval of a development plan that located the Supercenter 290

feet from the street. Mr. Carpenter described the changes Wal-

Mart had made to make the development plan more pedestrian-

oriented, which included increasing the size and route of a

walkway, using larger trees in the landscaping, and adding

gazebos and more extensive sidewalks and crosswalks.

In his remarks to the Board, Mr. Carpenter stated “We adopt

staff’s recommendations and staff comments.” It is reasonable

to infer that Mr. Carpenter was referring to the 14 statements

under “Recommendations/Requirements/Comments” in the planning

staff’s June 2009 site plan evaluation report. These statements

included the staff’s determinations about the block face.

Mack McCuller, the attorney for Intervenor John Hudson,

repeated Mr. Hudson’s earlier objections about the inconsistency

of Wal-Mart’s development plan with the comprehensive plan and

Code because the Supercenter did not comply with the front

setback requirement, the plan lacked a pedestrian orientation,

the plan was for a large-scale, single use rather than a mixed

use, and the Supercenter would result in overlapping trade areas

(would not be neighborhood-serving). Regarding the front

setback requirement, Mr. McCuller pointed out that Section 30-

65(d)(2) of the Code made the setback requirement applicable to

all principal structures.

With regard to the “multiple structures” provision of the

Code, Section 30-65(d)(3), Mr. McCuller noted that the provision

does not expressly allow any deviation from the front setback

requirement. He argued that the case-by-case discretion

referred to in this section was directed only to compatibility

among the multiple structures; the discretion was not directed

to the dimensional requirements of the Code. He also pointed

out that, if Wal-Mart were correct, and the Board has the

discretion to waive the front setback requirement, then the

Board also has the discretion to deny such a waiver.

John Hudson’s planner, Gene Boles, testified that the

Supercenter was not a mixed use as required for the Mixed-Use

Medium-Intensity future land use category or the MU-2 zoning

district. Mr. Hudson testified about how the activities

associated with the Supercenter would not be compatible with

nearby residential uses.

Members of the general public spoke for and against Wal-

Mart’s development plan.

The members of the Development Review Board then expressed

their own views, including the view that the project was not

consistent with the comprehensive plan, the principal building

did not comply with the front setback requirement, the design

was not “walkable,” would create unacceptable noise levels, was

not an appropriate design, and was not integrated with

surrounding land uses. The Board voted to deny Wal-Mart’s

development plan.

The Issues Raised on Appeal

The issues raised on appeal by Wal-Mart do not address all

of the reasons for denial that were presented to and discussed

by the Development Review Board.

I. Block Face

The first issue raised by Wal-Mart on appeal is whether the

Development Review Board’s decision is based on an erroneous

interpretation of the term “block face.” Wal-Mart argues that,

if the Board had applied the block face definition correctly,

the 15-to-80-foot front setback requirement would not have been

applicable. Wal-Mart contends that its proposed development

plan complies with the Code when the block face definition is

correctly applied.

This block face issue is being raised here for the first

time. The issue was not raised before the Development Review

Board and the Board had no opportunity to consider the issue

when it made its decision to deny Wal-Mart’s development plan.

The planning staff explained in each of its site plan

evaluation reports how it determined the block face for Wal-

Mart’s development plan. Wal-Mart never objected to the staff’s

determination. In fact, Wal-Mart expressly adopted it.

It is fundamental that an issue not raised below cannot be

raised for the first time on appeal. See First Savings Corp. of

Texas v. S & B Partners , 548 So. 2d 1156, 1158 (Fla. 5th DCA

1989); Battaglia Fruit Co. v. City of Maitland , 530 So. 2d 940,

943 (Fla. 5th DCA 1988).

Furthermore, the argument made by Wal-Mart is not purely a

matter of law. Whether Wal-Mart’s development plan would comply

with the Code under the theory advanced by Wal-Mart requires

facts, and probably disputed facts, that are not in the record.

II. Multiple Structures

The second issue raised by Wal-Mart is whether the Board’s

decision is based on an erroneous interpretation of Section 30-

65(d)(3), the multiple structures provision. Wal-Mart contends

that the staff’s interpretation of Section 30-65(d)(3) is

correct and would have required the Board to approve Wal-Mart’s

development plan.

There is no legal principle that a decision-making body

acts unlawfully when it fails to adopt an interpretation of law

preferred by its staff. The Development Review Board can read

the plain wording of the Section 30-65(d)(3), consider the

section in pari materia with related provisions of the Code, and

apply an interpretation that is reasonable. See Sullivan v.

Fla. Dept. of Envtl. Prot. , 890 So. 2d 417, 420 (Fla. 1st DCA

2004) (an agency interpretation that is within the range of

possible and reasonable interpretations should be affirmed).

The interpretation advanced by the planning staff cannot be

characterized as necessary or obvious. When the related

provisions of the Code are considered in pari materia , the

interpretation of Section 30-65(d)(3) as not allowing a

deviation from the front setback requirement is a reasonable

interpretation of the section.

Furthermore, if the Board has the discretion to allow a

deviation from the front setback requirement, as argued by Wal-

Mart, the Board also has the discretion to deny a deviation. It

does not matter whether another decision could have been made by

the Board. The only question that matters is whether the

decision that was made by the Board is supported by competent

substantial evidence in the record. See Metro. Dade County v.

Blumenthal , 675 So. 2d 598, 606 (Fla. 3d DCA 1995).

DECISION

Because the record contains competent substantial evidence

to support the decision of the Development Review Board to deny

Wal-Mart’s development plan, the Board’s decision is AFFIRMED.

Pursuant to Section 30-353.1(a)(3)d.2. of the Land

Development Code, an affirmation of the Board’s decision shall

be deemed final action of the Board.

DONE AND ORDERED this 28th day of October, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of October, 2009.

COPIES FURNISHED :

Karl J. Sanders, Esquire

Edwards, Cohen, Sanders, Dawson

& Mangu, P.A.

6 East Bay Street, Suite 500

Jacksonville, Florida 32202

E. Owen McCuller, Jr., Esquire

Smith, Hulsey & Busey

Post Office Box 53315

Jacksonville, Florida 32201-3315

Elizabeth A. Waratuke, Esquire

City of Gainesville

Post Office Box 1110

Gainesville, Florida 32602

Marion J. Radison, City Attorney

City of Gainesville

Development Review Board

200 East University Avenue

Room 425

Gainesville, Florida 32601

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 30.352.1(b) of

the Land Development Code by appealing to the appropriate court

within 30 days of the order by an action in the nature of a writ

of certiorari.