18-005921 Thomas Hawkins, Jason Atkins-Tuffs, Vanessa Burt, Jon Rehfuss, Suzi Rumsey, Furman Wallace, Lauren Atkins, Dotty Faibisy, Caroline Rehfuss, And Tana Silva vs. Blackwater Investments, Llc And City Of Gainesville Status: Closed DOAH Final Order on Thursday, January 24, 2019.

Summary: The City of Gainesville's administrative approval of the development plan application for Pleasant Street Luxury Condos submitted by Blackwater Investments, LLC, was affirmed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS HAWKINS, JASON ATKINS -

TUFFS, VANESSA BURT, JON

REHFUSS, SUZI RUMSEY, FURMAN

WALLACE, LAUREN ATKINS, DOTTY

FAIBISY, CAROLINE REHFUSS, AND

TANA SILVA,

Appellants,

vs. Case No. 18 - 5921

BLACKWATER INVESTMEN TS, LLC , AND

CITY OF GAINESVILLE,

Appellees.

_______________________________/

FINAL ORDER

The Appellants, Thomas Hawkins, Jason Atkins - Tuffs, Vanessa

Burt, Jon Rehfuss, Suzi Rumsey, Furman Wallace, Lauren Atkins,

Dotty Faibisy, Caroline Rehfuss, and Tana Silva (Appellants),

appeal ed a development plan application filed by the Appellee,

Blackwater Investments, LLC (Blackwater), administratively

approved by the Appellee, City of Gainesville (City) , on

September 25, 2018. The Division of Administrative Hearings

(DOAH), by contract with the City and pursuant to Section 30 - 3.57

of the City ' s Land Development Code (LDC), assigned

Administrative Law Judge Francine M. Ffolkes to serve as Hearing

Officer for the appeal. The part ies submitted briefs on

December 10 and 14, 2018. Oral argument was presented on

December 17, 2018.

APPEARANCES

For Appellants : W. Thomas Hawkins, Esquire

Post Office Box 12473

Gainesville, Florida 32601

For Appellee B lackwater Investments, LLC :

John Tyrone , pro se

Blackwater Investments, LLC

1310 Southwest 143rd Street

Newberry, Florida 32669 - 3164

For Appellee City of Gainesville:

Sean M. McDermott, Esquire

City of Gainesville

Office of the City Attorney

Station 46

Post Office Box 490

Gainesville, Florida 32627

STATEMENT OF THE ISSUE S

The issues to be determined in this appeal are

( 1) whether the Appellants have standing to bring this appeal,

and ( 2) whether the development plan application met the

applicable criteria for approval under Section 30 - 3.46 of the

City ' s LDC in light of the standard o f review outlined in

Section 30 - 3.57 of the City ' s LDC.

PRELIMINARY STATEMENT

On January 5, 2018, Blackwater submitted a development plan

application for Pleasant Street Luxury Condos, which included

three buildings with six dwelling units and associated p arking,

stormwater facilities, and utility improvements. On

September 25, 2018, the City approved the development plan

application, and on October 22, 2018, the Appellants filed with

the City a Notice of Appeal of Administrative Decision under

Section 30 - 3.57 of the City ' s LDC. After referral to DOAH, an

oral argument was scheduled for December 17, 2018.

On November 26, 2018, the Appellants filed a motion to

dismiss Blackwater, which was denied on November 30, 2018. On

November 30, 2018, the City filed a motion to dismiss certain

Appellants , Jason Atkins - Tuffs, Lauren Atkins, Dotty Faibisy,

Thomas Hawkins, Jon Rehfuss, Caroline Rehfuss, Tana Silva, and

Furman Wallace , for lack of standing under the City ' s LDC.

Blackwater followed up with its own request to dismiss those

named Appellants on December 3, 2018. The Appellants filed a

response on December 3, 2018.

In accordance with the Order Setting Briefing Schedule dated

December 4, 2018, the City filed a stipulated Record on Appeal on

December 7, 2018. T he Appellants filed their Initial Brief and

Motion to Supplement the Record on December 10, 2018, which was

granted at the start of the oral argument on December 17, 2018.

The City filed its Answer Brief and Blackwater filed a Response

to Appellants ' Init ial Brief on December 14, 2018. Blackwater

also filed a Motion to Supplement the Record on December 14,

2018, which was denied at the start of oral argument on

December 17, 2018. However, the exhibits attached to Appellee

Blackwater ' s Response to Appella nt ' s Initial Brief were admitted

as additional evidence at the oral argument on December 17, 2018.

The Appellants also provided the Hearing Officer with a tabbed

binder containing excerpts from the record, copies of case law ,

and copies of portions of the City ' s LDC. A T ranscript of the

oral argument was filed with DOAH on January 3, 2019.

FINDING S OF FACT

The Property

1. The property consists of approximately 0.50 acres

located at 422 N orthwest Thir d Avenue, Gainesville, Florida

(the Property). The Pro perty currently has a Residential Low -

Density (RL) future land use (FLU) category under the City ' s

Comprehensive Plan. The RL FLU category includes five

implementing zoning districts , and the Property is in the

Residential Conservation (RC) zoning distric t. The Property is

not located within the boundaries of the Pleasant Street Historic

District.

2. Blackwater owns the Property and submitted a minor

development plan application, identified as AD - 17 - 00143, for

three buildings with six dwelling units and associated parking,

stormwater facilities, and utility improvements. The three

buildings have two dwelling units each, which is a use allowed

by right in the RC zoning district. The use is described in

S ection 30 - 4.16 of the City ' s LDC as " Multi - family, small scale

(2 - 4 units per building). "

3. The Property was conveyed to Blackwater by a warranty

deed recorded January 15, 2014. The warranty deed describes

parcel 14518 - 002 - 000 as the east one - half of lot 7 and all of

lots 8 and 9 in the south half of bl ock 27 of " Brush ' s Addition

to Gainesville, " according to the Plat recorded in " Plat

Book ' A , ' Page 88 of the Public Records of Alachua County,

Florida. "

Issues on Appeal

4. The Appellants raised and argued four issues in this

appeal.

A. Whether the Prop erty is a parcel or lot that can be

developed under the City ' s LDC.

5. The Appellants argue that the Property is not a " parcel "

and also not a " lot " under the City ' s LDC. The LDC definitions

are found in S ection 30 - 2.1 of the City's LDC , which states:

P arcel means a unit of land within legally

established property lines. Legally

established property lines means those lines

created by a recorded plat, minor plat or lot

split, those units of land recognized as lots

formed prior to 1961 as recorded on a ma p

kept by the building division, and those lots

recognized by the county code enforcement

department at the time of any annexation.

Lot means a parcel of land contained within

property lines of a specific area, including

land within easements and building setback

lines of the area, but excluding any land

within street right - of - way.

6. The Appellants contend that the Plat of Brush ' s Addition

to Gainesville (the Plat) legally established property lines.

The Appellants further contend the definitions mean that only the

lots created by the Plat are parcels. In other words, the " unit

of land within legally established lines " cannot consist of more

than one of the originally platted lots.

7. This is not the City ' s interpretation of its own LDC.

The Property , as described by the warranty deed , is a parcel

within the property lines first established on the Plat. As

argued by the City and Blackwater during oral argument, the

Appellants ' interpretation is not reasonable and " could stop all

multifamily developme nt in the [C]ity. "

8. The City ' s interpretation of its own LDC is not clearly

erroneous and has foundation in reason. Also, approval of the

development plan was not an ultra vires act since the City was

required to make a decision on the development plan application

in accordance with the provisions of its LDC.

B. Whether the Property meets minimum lot width standards

under the City ' s LDC.

9. The Appellants ' second argument is that the development

plan fails to meet the required minimum lot width stand ard under

S ection 30 - 4.17 of the City ' s LDC. The Appellants argue that

since Lots 8 and 9 on the Plat are each 50 feet wide, then the

permitted use should be " single - family, " which has a minimum lot

width of 35 feet.

10. Based on the above finding, the P roperty is a parcel or

lot that may be developed under the City ' s LDC. The Property ' s

lot width is 125 feet, which meets the minimum width standard for

the proposed " multi - family, small scale (2 - 4 units per building) "

use.

C. Whether the requirements for a masonry wall and Type B

landscape buffer apply to the Property and the development plan.

11. Section 30 - 4.8.D.2.e of the City's LDC provides:

A decorative masonry wall (or equivalent

material in noise attenuation and visual

screening) with a minimum h eight of six feet

and a maximum height of eight feet plus a

Type B landscape buffer shall separate multi -

family residential development from

properties designated single - family

residential.

The Appellants argue that the development plan should be required

to meet this buffer standard because the RC zoning district is

residential , and the Property abuts single - family dwellings.

12. Under the LDC provision , the buffer is required to

separate multi - family developments from properties " designated

single - famil y residential. " The City argues that designations

refer to a property ' s FLU category as designated in the City ' s

Comprehensive Plan. The Appellants argue that " designated

single - family residential " simply refers to a single - family

dwelling .

13. Policy 4 .1.1 of the City ' s Comprehensive Plan describes

certain FLU categories such as Single - Family (SF). Policy 4.1.4

of the City's Comprehensive Plan provides that the City can

amend land use " designations " under certain circumstances.

Policy 4.2.1 of the Cit y's Comprehensive Plan provides that the

City shall adopt regulations that separate uses with performance

measures , such as " buffering of adjacent uses by landscape. "

14. Based on the language of the City ' s Comprehensive Plan,

it is a reasonable interpret ation that use of the term

" designated " refers to the FLU category. T he Property and the

abutting single - family dwellings have the same FLU category

designation of RL . Thus , the masonry wall and Type B buffer

requirements of S ection 30 - 4.8 of the City's LDC do not apply to

this development plan.

D. Whether the Property ' s development plan meets applicable

parking standards under the City ' s LDC.

15. The Appellants argue that the development plan must

provide 13 parking spaces , and it only provides nine p arking

spaces, which does not meet the parking standards of S ections 30 -

7.2 and 30 - 7.5 of the City ' s LDC. In addition, the Appellants

argue that the parking must be paved because the City ' s LDC only

allows gravel parking areas with ten or fewer parking sp aces.

16. Under S ection 30 - 7.5 of the City ' s LDC, the development

plan must provide 13 parking spaces. The development plan

provides nine parking spaces on the Property and four on - street

spaces approved by the City, for a total of 13 parking spaces.

Th e nine parking spaces on the Property satisfy the requirement

of allowing gravel parking areas with ten or fewer parking

spaces.

Standing

1 7. Appellants Vanessa Burt and Suzi Rumsey are the only

residents who own property within 400 feet of the Property.

18. Appellants Jason Atkins - Tuffs and Lauren Atkins are

recent new home buyers in the Pleasant Street Neighborhood.

Mr. Atkins - Tuffs is concerned that the development plan would not

be a " good fit for our growing historic downtown family

neighborhood. "

1 9. Appellant Dotty Faibisy is an almost 20 - year resident

and is concerned that the development plan " is a poor fit for the

Historic Pleasant Street Neighborhood. "

20. Appellants John Rehfuss and Caroline Rehfuss are

residents since 2013 in the Pleasant S treet Historic District and

are concerned that the development plan " is going to be a poor

fit, both aesthetically and functionally, for our neighborhood. "

21. Appellant Tan Silva is a 23 - year resident, who lives

outside of but " on the edge " of the Pleasa nt Street Historic

District and feels that compatible development should be

maintained.

22. Appellant Furman Wallace is an 84 - year resident of the

Pleasant Street Neighborhood. He i s concerned with the character

and type of buildings in the Pleasant Stre et Neighborhood.

23. Appellant Thomas Hawkins was a 12 - year resident of the

Pleasant Street Neighborhood and is currently building a new home

in the neighborhood. Mr. Hawkins is concerned that the

development plan does " not compliment the neighborhood ' s historic

architecture " and is not consistent with the City ' s LDC

requirements.

CONCLUSIONS OF LAW

Standing

24. Section 30 - 3.57 of the City ' s LD C governs standing to

appeal administrative decisions and provides:

Decisions relating to particular property .

The following persons shall have standing to

appeal an administrative decision that is not

of general applicability and that is

specifically related to a particular project

or parcel of real property:

* * *

c. All owners of real property that li es

within 400 feet of the property that is the

subject of the decision.

d. Any resident, landowner, or person having

a contractual interest in land in the city who

demonstrates a direct adverse impact from the

decision that exceeds in degree the general

interest in community good shared by all

persons . (Emphasis added).

25. The record supports standing to appeal for Appellants

Vanessa Burt and Suzi Rumsey. The record does not support

standing to appeal for Appellants Jason Atkins - Tuffs, Lauren

Atkins, Dotty Faibisy, Thomas Hawkins, Jon Rehfuss, Caroline

Rehfuss, Tana Silva, and Furman Wallace.

Burden of Proof

26. The Appellants who are challenging the administrative

decision shall have the burden to prove that the City approved

the development plan ap plication in violation of the applicable

administrative review criteria in S ection 30 - 3.46 of the City ' s

LDC.

27. Section 30 - 3.46 of the City's LDC provides that an

application may be approved if " proposed development is

consistent with the Comprehensive Plan and complies with the

Comprehensive Plan, the Land Development Code, and other

applicable regulations. "

28. Based on the above F indings of F act, the development

plan application is consistent with the City ' s Comprehensive Plan

and complies with the C ity ' s Comprehensive Plan and LDC.

29. The Appellants did not carry their burden to show that

the City approved the development plan application in violation

of S ecti on 30 - 3.46 of the City ' s LDC.

Appeal Criteria

30. Section 30 - 3.57 of the City ' s LD C sets forth the appeal

criteria that govern a Hearing Officer ' s decision:

The Hearing Officer shall give deference to

the administrative official ' s final decision,

order, requirement, interpretation,

determination, or action, and may only reverse

or modify such when the Hearing Officer finds

that the administrative official ' s final

decision, order, requirement, interpretation,

determination, or action:

1. Was clearly erroneous or patently

unreasonable and will result in a miscarriage

of justice;

2. Has no fo undation in reason, meaning the

absence of a situation where reasonable minds

could disagree, and is a mere arbitrary or

irrational exercise of power having no

substantial relation to the public health,

morals, safety, or welfare; or

3. Was an ultra vire s act, meaning the

administrative official clearly lacked the

authority to take the action under statute or

the City of Gainesville Charter Laws or Code

of Ordinances.

31. Based on the above F indings of F act, the City ' s

administrative decision approving the development plan

application for the Property was proper and did not violate any

of the appeal criteria that would justify reversal or

modification by the Hearing Officer.

DE TERMINATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, Appellants Jason Atkins - Tuffs, Lauren Atkins, Dotty Faibisy,

Thomas Hawkins, Jon Rehfuss, Caroline Rehfuss, Tana Silva, and

Furman Wallace are DISMISSED, and the administrative approval of

the City is AFFIRMED.

DONE AND ORDERED this 24th day of January , 20 19 , in

Tallahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of January , 2019 .

COPIES FURNISHED:

Sean M. McDermott, Esquire

City of Gainesville

Office of the City Attorney

Station 46

Post Offic e Box 490

Gainesville, Florida 32627

(eServed)

Sergio Reyes

2404 Northwest 43rd Street

Gainesville, Florida 32606

John Tyrone

Blackwater Investments, LLC

1310 Southwest 143rd Street

Newberry, Florida 32669 - 3164

(eServed)

W. Thomas Hawkins , Esquire

Pos t Office Box 12473

Gainesville, Florida 32601

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Pursuant to Section 30 - 3.57 of the City of Gainesville Land

Development Code, this decision shall be final, and may be

subject to judicial review as provided in law.