09-005339 Exchange Associates Of Georgia, Lp vs. City Of Gainesville Status: Closed DOAH Final Order on Thursday, November 19, 2009.

Summary: Because it appears that the City's Plan Board does not have jurisdiction to consider a request to subdivide property, and the Board's decision does not inlcude the required settlement of reasons for the denial, the decision is referred back to the Board.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXCHANGE ASSOCIATES OF GEORGIA, )

LP, )

)

Appellant, )

)

vs. ) Case No. 09-5339

)

CITY OF GAINESVILLE, )

)

Appellee. )

)

FINAL ORDER

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 Plan 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 November 16, 2009, a telephonic hearing

was held to receive oral argument. The attorney for the City of

Gainesville attended at a site in Gainesville that was open for

attendance and observation by members of the general public.

The Record Evidence

The Exchange Shopping Center is located at the corner of

13th Street and 39th Street in Gainesville. The shopping center

includes three buildings: a Publix supermarket with attached

strip mall, a Dunkin Donuts, and a Jiffy Lube. The shopping

center was developed pursuant to a special use permit that was

issued in the past.

The Appellant seeks to modify the shopping center special

use permit by removing the Dunkin Donuts parcel from the area

subject to the special use permit. The application also

requests authorization to remove a four-inch holly tree and a

portion of a hedge.

The Appellant has always been forthright in stating that

its purpose in separating itself from the shopping center

special use permit is to allow the Appellant to thereafter seek

City approval for a “monument” sign on 13th Street to advertise

Dunkin Donuts. The proposed sign was shown in the application.

The application indicated that the Applicant/Appellant was

requesting, among other things, a “lot split” or subdivision of

the shopping center. The report of the City’s planning staff

states that “[t]he property owner is now requesting an amendment

to the existing Special Use Permit to reduce the size of the

original parcel, to add new signage, to remove trees which are

part of the screening and buffering along NW 13th Street and to

create a separate lot for one of the free-standing buildings

existing on the southeast portion of the development.”

It was not made clear by the parties why the

Applicant/Appellant could not request to modify the shopping

center special use permit to allow the Dunkin Donut sign or

request to exclude the Dunkin Donuts site from the shopping

center special use permit, without the need to divide the

shopping center site to create a separate Dunkin Donuts parcel.

Nevertheless, there appeared to be agreement that Dunkin Donuts

could not obtain the kind of sign that it wanted unless a

separate Dunkin Donuts parcel were created.

Under Section 30-235(b) of the Code, an application to

modify the boundaries of an approved special use permit must be

processed as a new special use permit and acted on by the Plan

Board, an administrative board of citizen volunteers. In

considering whether to approve an application for a special use

permit, the Plan Board is to consider the evidence presented in

a quasi-judicial public hearing and the report of the Department

of Community Development. Section 30-234(h) of the Code states

that the Plan Board “shall act on the application based on the

findings required in Section 30-233.” Section 30-233 states:

No special use permit shall be approved

by the city plan board unless the

following findings are made concerning

the proposed special use:

(1) That the use or development

complies with all required regulations

and standards of this chapter and all

other applicable regulations.

(2) That the proposed use or

development will have general

compatibility and harmony with the uses

and structures on adjacent and nearby

properties.

(3) That necessary public utilities

are available to the proposed site and

have adequate capacity to service the

proposed use and development.

(4) That the use or development is

serviced by streets of adequate

capacity to accommodate the traffic

impacts of the proposed use.

(5) That screening and buffers are

proposed of such type, dimension and

character to improve compatibility and

harmony of the proposed use and

structure with the uses and structures

of adjacent and nearby properties.

(6) That the use or development

conforms with the general plans of the

city as embodied in the city

comprehensive plan.

(7) That the proposed use or

development meets the level of service

standards adopted in the comprehensive

plan and conforms with the concurrency

management requirements of this chapter

as specified in article III, division

2.

However, applications for lot splits are presented to and

acted on by the “director of planning and development services

or designee” pursuant to Section 30-189(b)(4), and minor

subdivisions are presented and acted on by the City’s technical

review committee under Section 30-189(a)(4). The Plan Board

cannot grant lot splits or subdivisions.

The application was filed with the City’s Department of

Community Development. The Department’s Technical Review

Committee issued a report to the Plan Board. The report

evaluated each of the seven special use permit criteria in

Section 30-233 and recommended approval of the application

subject to seven conditions.

At the Plan Board hearing on July 9, 2009, City planners

Lawrence Calderon and Ralph Hilliard presented the planning

staff’s comments and its recommendation for approval of the

application. The only other speakers were the

Applicant/Appellant’s representative, David Hass, and its

engineer, Sergio Reyes.

At the hearing, Mr. Calderon stated that the Applicant was

asking to create a new parcel. Mr. Hilliard stated that “our

recommendation is based on it meets the requirement of the code

to create that additional parcel.” Mr. Reyes stated that they

that we are subdividing.”

Plan Board member Ackerman stated that “there’s a reason

why these large shopping centers are restricted to a single

sign. It’s to try to reduce the sheer amount of clutter.”

Mr. Ackerman made a motion to “deny petition PB0991SUP.” Upon

the suggestion of the Vice Chair, Mr. Wells, Mr. Ackerman added

that the motion was based “on the grounds that it does not meet

the conditions and the finding of fact of the center.”

Mr. Wells later stated that “the motion as made indicates that

this board does not find that the -- the conditions of the

special use permit have been met.”

The Applicant/Appellant asked for clarification of the

reasons for denial, but the Vice Chair only repeated that “it

did not meet the conditions of the special use permit.” At that

point, Mr. Dawson commented:

[T]his plan board has the wherewithal and

the support in our land development code to

deny this application because we feel that

there is a certain amount of control that’s

imposed by the existing special use permit.

That is, there is a special use permit for

the Exchange development already. It

controls that whole development area,

including the Dunkin’ Donuts, and including

the Jiffy Lube that’s next door, including

the Publix, including Steak and Pasta Works

and all those other businesses that are in

there. So I think if we’re saying that this

splitting out this parcel creating this

additional special use permit would not

appropriately control the design and

external effects of this development, I

think that’s something that we need to

include in the motion.

Just before the vote was taken, there was a request to

restate the motion and Mr. Ackerman responded, “Restating the

motion, I move that we deny petition PB0991SUP.” On

September 3, 2009, the City issued a written Notice of Denial of

Request to Modify Special Use Permit, which included no

statement of the reasons for the denial.

The Issues Raised on Appeal

The Appellant raises three issues on appeal. The first

issue raised by the Appellant is whether the decision of the

Plan Board should be reversed for failing to properly apply the

special use permit criteria in the Code. The Appellant contends

that the Plan Board was limited to applying the seven criteria

in Section 30-233, but it based its decision on signage issues,

even though no sign application was pending before the Plan

Board.

The second issue raised on appeal by the Appellant is

whether the Plan Board’s decision should be reversed because it

is not supported by competent substantial evidence in the

record. The Appellant contends that the only evidence in the

record supports the approval of the special use permit

application; no evidence supports the denial.

The third issue raised by the Appellant is whether the Plan

Board’s decision should be reversed because the Plan Board did

not state the reasons for the denial, as required by the Code.

The City argues that the Plan Board has no jurisdiction to

approve a lot split or subdivision of the shopping center. The

City contends that its planning staff erred in presenting the

matter to the Plan Board. Although this jurisdictional issue

was not raised before the Plan Board, the hearing officer is

directed to base his review of the Plan Board’s decision on the

“the record and applicable law.” There appears to be no bar to

a determination by the hearing officer that the applicable law,

when applied to the record evidence, shows a lack of

jurisdiction in the Plan Board.

The City’s argument that the Plan Board lacked jurisdiction

to review and act on the request to split or subdivide the

shopping center is supported by the plain wording of the

relevant sections of the Code. The Appellant agrees that the

Plan Board has no jurisdiction to approve a lot split or

subdivision, but contends that any references made to lot splits

or subdividing were references to future actions, not the

requested action that was before the Plan Board. However, there

are several statements made by the City and the Applicant that

would lead a reasonable person to believe that the Plan Board

was being asked to create a separate Dunkin Donuts parcel.

Section 30-234(h)(2) of the Code requires that, when the

Plan Board denies an application for a special use permit, it

must include a “statement of the reasons for denial.” The City

argues that it is sufficient if the reasons for denial can be

deduced from the comments of individual board members during

their discussion. That argument is not persuasive because the

point of view of a member of a decision-making body cannot be

ascribed to the entire body or to a majority of its members if

the point of view is not reflected in the official motion that

is passed. Because the Plan Board’s reasons are not stated in

the motion, it is mere speculation to say that the Plan Board

members cast their votes on the basis of a particular reason

expressed by a board member during an open discussion among the

members.

The City cites case law holding that due process of law

does not require local government boards to make written

findings. Those cases, however, do not address the situation

that exists here, where the Code expressly requires findings of

fact in order to approve a special use permit and, in the case

of a denial, a statement of the reasons for denial. In this

case, neither the motion for denial nor the written notice of

denial included the required statement of the reasons for the

denial.

DECISION

Because the Plan Board was without jurisdiction to consider

the lot split or subdivision of the shopping center, and the

final decision of the Plan Board does not include the required

statement of the reasons for the denial of the special use

permit, this case is referred back to the Plan Board for

reconsideration.

DONE AND ORDERED this 19th day of November, 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 19th day of November, 2009.

COPIES FURNISHED :

Elizabeth A. Waratuke, Esquire

City of Gainesville

Post Office Box 1110

Gainesville, Florida 32602

Linda Loomis Shelley, Esquire

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

Post Office Box 11240

Tallahassee, Florida 32302-3240

Karen A. Brodeen, Esquire

Fowler White Boggs Banker, P.A.

101 North Monroe Street, Suite 1090

Post Office Box 11240

Tallahassee, Florida 32302-1240

Daniel M. Nee, Esquire

City of Gainesville

200 East University Avenue, Suite 425

Gainesville, Florida 32601-5456

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.