20-000581 Weyerhaeuser Nr vs. City Of Gainesville Status: Closed DOAH Final Order on Wednesday, May 5, 2021.

Summary: Petitioner failed to demonstrate that the City did not afford it procedural due process; that the City failed to observe essential requirements of law; and that the City's denial of its rezoning petition was not based on competent substantial evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

W EYERHAEUSER N R ,

Petitioner ,

vs. Case No. 20 - 0581

C ITY OF G AINESVILLE ,

Respondent .

/

F INAL O RDER

Petitioner, Weyerhaeuser NR Company ( Petitioner ), appealed the denial of its

petition to rezone certain property from Alachua County Agriculture (A) to City of

Gainesville Planned Development District (PD) . On December 5, 2019, t he City

Commission of the City of Gainesville (City) held a quasi - judicial hearing on the

petition and entered the denial order on January 16, 2020. The Division of

Administrative Hearings (D OAH), by contract with the City and pursuant to

s ection 30 - 3.58 of the City's Land Development Code (LDC), assigned

Administrative Law Judge Francine M. Ffolkes to serve as Hearing Officer for the

appeal. The parties submitted briefs on February 25, 2020, and March 6, 2020 .

Petitioner submitted the record on appeal (ROA) on March 16, 2020. 1 Oral

argumen t was presented on July 21, 2020, at which time the parties waived the

LDC's seven calendar days requirement for rendering this Final Order . 2

1 On February 2 6, 2020, the City filed a motion to strike Petitioner's ROA to which Petitioner

responded on March 2, 2020. After reviewing the motion, the response, and the video of the quasi -

judicial hearing held on December 5, 2019, the undersigned issued an O rder on M arch 10, 2020 , that

denied the City's motion to strike . Thereafter, on March 16, 2020, Petitioner filed its entire ROA

consisting of Bates numbers ROA 0001 through ROA 3413. Record references i n this Final Order are

to the ROA filed on March 16, 2020.

2 At the oral argument , the undersigned requested and allowed post argument responses dealing

with two issues . Those filings were made by the parties on August 6 , 7, 13 , and 14, 2020.

A PPEARANCES

For Petitioner: David A. Theriaque, Esquire

Benjamin R. Kelley, Esquire

T heriaque & Spain

433 North Magnolia Drive

Tallahassee, Florida 32308 - 5083

C. David Coffey, Esquire

C. David Coffey, P.A.

300 East University Avenue, Suite 110

Gainesville, Florida 32601

For City of Gainesville: Sean M. McDermott, Esquire

City of Gainesville

Office of the City Attorney

200 East University Avenue , Suite 425

Gainesville, Florida 32 601

Daniel M. Nee, Esquire

City of Gainesville

Off ice of the City Attorney

Pos t Office Box 490 , Mail Station 46

Gainesville, Florida 32627

S TATEMENT OF THE I SSUES

The issues to be determined in this appeal are : (1) whether Petitioner was

afforded procedural due process ; (2) whether t he City failed to observe the essential

requirements of law ; and (3 ) whether the City's decision was supported by

competent substantial evidence.

B ACKGROUND

Petitioner is the successor - in - interest to approximately 1,779 acres of land

previously owned by Plum Creek Land Company. The property is generally located

north of U.S. 441 and Northwest 74th Place, east and west of State Road 121 and

County Road 231, and south of Northwest 121st Avenue. On April 24, 1992, the City

annexed 460 acres of the property into the City . On February 12, 2007, the property

owner voluntarily annexed into the City the remaining approximately 1 , 319 acres.

At the time of both annexatio ns, the property had an Alachua County land use

designation of Rural/Agricultural and a zoning designation of Alachua County A.

On January 1, 2009, the City adopted the following land use designations for

specified portions of Petitioner's property : Cons ervation, Single - Family, Residential

Low - Density, and Planned Use District (PUD) Overlay. The 2009 City ordinance

required that Petitioner timely apply for and obtain City PD zoning on the PUD

portion of the property within 18 months. Failure to meet the d eadline would void

the PUD Overlay and that portion of the property would retain the land use

designation of City Agriculture. This ordinance was codified in Policy 4.3.4 of the

Future Land Use Element (FLUE) of the City's Comprehensive Plan (Comp Plan) .

O ver time, the City adopted many extensions of the 18 - month PD rezoning

deadline.

FLUE Policy 4.3.4 also contained detailed requirements for environmental

protection and development. In particular , all wetlands, wetland buffers, floodplain ,

and upland hab itat areas were to be designated as Conservation Management

Areas (CMAs) , and managed through adoption of Conservation Management Plans

(CMPs) approved by the City. In July of 2017, Petitioner proposed and the City

approved a Natural Area Resource Assessme nt (NARA) and 22 recommended CMAs

totaling 1,161 acres of Petitioner's 1,779 - acre property.

Petitioner filed its petition to rezone approximately 744 acres of its property on

June 15, 2017. The petition sought to rezone portions of the Single - Family,

Residential Low - Den s ity, and PUD areas from Alachua County A to City PD zoning

for the "Gainesville 121 Planned Development . " Areas within the PD boundary

designated as CMAs were labeled Conservation Management District (CON) with

uses allowed "as indicate d in the approved CMP for the CMAs." City staff

determined the petition to be complete, prepared a staff report and placed the

matter on the October 26, 2017, City Plan Board meet ing agenda for a public

hearing. The staff report recommended approval of the rezoning petition and found

the petition consistent with the City's Com p Plan and LDC . However, the staff

report recommended two conditions be placed on an y approval . The two conditions

concerned perpetual silvicultur e activities within lands designated a s wetlands and

wetland buffers by the NARA report. The staff report included the following staff

position on the posture of the rezoning petition:

CONSERVATION DISTRICT: The applicant has

proposed to omit the large portions of the Gainesville 121

property from the PD rezoning action currently proposed.

However, staff has determined, and the Comprehensive

Plan dictates, that in order to review the planning parcel

holistically the Conservation districts must be included as

a part of the PD rezoning. The very nature of the proposed

development, where " neighborhoods weave in and out of

the enviro nment" suggests that PD District and the CON

districts must be evaluated as integral parts of overall

Gainesville 121 Planned Development .

The City Plan Board approved a motion recommending approval of the rezoning

petition and replaced the staff's two conditions with one recommended condition.

The recommended condition stated that "[t]he rezoning of Gainesville 121 to

Planned Development doe s not become effective until a Management Plan that

addresses continued silviculture activities is adopted for the Conservation

Management Areas located within the PD." The rezoning petition was scheduled

and advertised to be heard by the City Commission o n January 18, 2018 .

Petitioner's agent disputed whether the rezoning petition it had prepared included

requests to rezone areas to PD and CON zoning , as advertised. Thus , the item was

removed from the City Commission's January 18, 2018, agenda .

The recor d correspondence reflect ed that the City expected to review the PD

re zoning and CON zoning for Gainesville 121 concurrently . See ROA 2515 - 2520 ,

2530, and 2533. On May 16, 2018, Petitioner submitted a proposed CMP that the

City reviewed and provided comment s. Petitioner responded to those comments on

July 27, 2018. The City review of the proposed CMP continued for several months,

apparently through retained consultants. Finally, in March 2019, Petitioner met

with City staff. The meeting was followed by two l etters in which Petitioner agreed

to modify the proposed CMP to exclude silviculture as a perpetual use in the

approved CMA. Petitioner's second letter dated June 3, 2019, was particularly

concerned that the advertised City Commission agenda item for a June 6, 2019,

public hearing needed clarification. See ROA 2537 - 2538 . The letter also reflected

that Petitioner did not expect to apply for CON re z oning until after CMP approval .

See ROA 2537 - 2538 .

The Ga inesville 121 PD rezoning issue was not addressed until the City

Commission 's July 18, 2019, meeting. On July 18, 2019, the City Commission hear d

a set of options presented by City staff:

1. Direct staff to prepare a City - initiated land use

amendment and related rezoning petition to designate the

entire property to the City of Gainesville Agricultural

land use and the accompanying Agricultural zoning

district; or

2. take no action to extend the deadline whereby the PUD

land use portion of the site would r evert to an

Agricultural land use designation; or

3. direct staff to begin the process for advertising a public

hearing on the PD zoning application for a future

Commission meeting.

The City Commission approved option number one. Petitioner availed itsel f of the

judicial process to force the City to schedule a hearing on its rezoning petition. The

quasi - judicial hearing was scheduled for December 5, 2019. A new City staff report

was prepared for the December 5, 2019, hearing. Th e new staff report noted

co ntinuing concerns with the proposed CMP with regard to perpetual silviculture

activities. The new staff report presented the City staff 's analysis of the rezoning

petition in light of applicable LDC rezoning criteria. The new staff report did not

make a re commendation. Instead, it presented three options for consideration by

the Commission: deny, approve with conditions, or approve.

At the December 5, 2019, hearing, the City Commission heard evidence and

argument from Petitioner's representatives, the City's interim director,

Andrew Persons, and members of the public . After conducting the hearing, the

Commission voted to deny the rezoning petition and its decision was reduced to a

written order rendered on January 16, 2020.

On January 23, 2020, Petitioner filed a notice of appeal under LDC

section 30 - 3.58 seeking administrative review of the City's denial of its rezon ing

petition .

S TANDARD OF R EVIEW

This appeal is an admi nistrative remedy governed by the City's LDC. The

undersigned may eit her affirm the o rder or remand the decision back to the City

Commission with specific issues for the City Commission to address. Section 30 - 3.58

of the City's LDC also sets forth the foll owing appeal criteria:

The hearing officer shall affirm the board decision unless

an appealing party with standing demonstrates that any

one of the following three requirements was not met. The

hearing officer shall use established Florida law as it

rel at es to this standard of review.

1. The appealing parties were afforded procedural due

process, which includes:

a. Notice of the board hearing that is the subject of

the appeal;

b. A fair hearing before an impartial decision -

maker;

c. An opportunity to be heard and present evidence

at the hearing; and

d. The opportunity to cross - examine any witnesses.

2. The reviewing board observed the essential

requirements of law.

a. A departure from the essential requirements of

law is something more than m ere legal error. A decision

made according to the form of the applicable law and the

rules prescribed for rendering it, although it may be

erroneous in its conclusion as applied to the facts, is not

an act that amounts to a departure from th e essential

req uirements of law.

b. The hearing officer shall examine the seriousness

of any error and exercise discretion only when there has

been a violation of a clearly established principle of law

that results in a miscarriage of justice.

3. The reviewing board' s decision was supported by

competent substantial evidence.

a. Competent substantial evidence means such

evidence that may establish a substantial basis from

which the fact at issue can be reasonably inferred, or

material and relevant evidence that a rea sonable mind

could accept as adequate to support a conclusion. The

opinions and recommendations of experts, including city

staff, are deemed expert testimony and constitute

competent substantial evidence. Citizen testimony during

any public comment portion of a hearing may constitute

competent substantial evidence if it is fact - based and not

a mere generalized statement of support or opposition.

b. The hearing officer may not reweigh the evidence

or substitute his or her judgment for that of the reviewing

board, but rather shall rule upon only whether the

reviewing board's decision was supported by any

competent substantial evidence.

S UMMARY OF A RGUMENTS AND A NALYSIS

Due Process

Petitioner argued that it was denied procedural due process because the CMP

was inappropriately considered together with the rezoning petition rather than

given a separate notice and hearing. However, the ROA clearly show s that the City

staff, Plan Board, and Commission expected to review the PD re zoning and CON

zoning for Gaines ville 121 concurrently. The record also shows that Petitioner was

made aware of this expectation. The City's interpretation of its LDC also supports

its position. Specifically, LDC section 30 - 8.11C, the portion of the LDC that protects

natural resources, r equires rezonings to be reviewed for compliance with the LDC

provisions protecting regulated natural resources. See Las Olas Tower Co. v. City of

Ft. Lauderdale, 742 So. 2d 308, 312 (Fla. 4 th DCA 1 999)(reflecting that reviewing

court should defer to the interpretation given by the local government of its own

code).

Petitioner also argued that the City Commission was not an impartial decision -

maker. In this regard, courts have set a high bar for a showing that an elected

official lacked impartiality. Fo r example, the official has to show a bias so pervasive

that a lack of impartiality was abundantly clear. See Seminole Entertainment, Inc.

v. City of Casselberry, 811 So. 2d 693 (Fla. 5 th DCA 2001)(reflecting that due

process was violated where petitioner was denied cross - examination of principal

witness, and mayor's evidentiary rulings reflected a bias so pervasive as to violate

basic fairness).

Elected officials have a presumption of honesty and integrity with their decision -

making power. See Hortonvill e Jt . Sch . Dist. No. 1 v. Hortonville Educ. Ass'n, 426

U.S. 482 (1976). An elected official is not impartial simply because they took a

position, even in public, on a policy issue related to the dispute in the absence of a

showing that the official is not capable of judging a controversy fairly. Id at 493 .

Petitioner's assertion of impartiality points to the City Commission 's decision to

separately direct City staff to initiate an application to consider changing the land

use and zoning designations for the Weyerhaeuser Property. Without more, this

argument fails to overcome the presumption of honesty and integrity accorded to

the officials that make up the City Commission. Also, case law establishes that a

local government may consider its own petition f or land use changes and that of the

property owner at the same time. See City of Gainesville v. Cone, 365 So. 2d 737

(Fla. 1 st DCA 1978).

Essential Requirements of Law

The issue of whether the City complied with the essential requirements of the

law is synonymous with whether the City "applied the correct law." Haines City

Cmty. Dev. v. Heggs , 658 So. 2d 523, 530 (Fla. 1995). The bulk of Petitioner's

argument is disagreement with the determinations of the City as it applied the

"correct law," i.e., the rezoning criteria of LDC section 30 - 3.17A through J, and the

additional criteria for PD rezonings in LDC section 30 - 3.17A through J. Under the

standard of review, "[a] decision made according to the form of the applicable law

and the rules prescribed for rendering it, although it may be erroneous in its

conclusion as applied to the facts, is not an act that amounts to a departure from

the essential requirements of law. "

Petitioner argue d that the City depart ed from the essential requirements of law

by considering the CMP in conjunction with the PD rezoning petition. As previously

discussed, the City staff's interpretation of the LDC criteria and communications

with Petitioner, w ere consistently that the PD re zoning and CON zoning for

Gainesville 121 would be reviewed concurrently.

Petitioner also assert ed that the City staff's written analysis and the City's

denial improperly applies provisions of the Comp Plan. Here again, Petitioner fails

to recognize that the rezoning petitio n is required to be found consistent with the

Comp Plan. See § 163.3194, Fla. Stat.; Franklin Cty. v. S.G.I. Ltd., 728 So. 2d 1210

(Fla. 1 st DCA 1999)(holding a local government may disapprove a development

application if it finds that it is inconsistent with any of the objectives or policies in

its comprehensive plan).

Thus, the City's denial made according to the form of the applicable l aw and the

rules prescribed for rendering it, was not an act that amount ed to a departure from

the essential requirements of law.

Competent Substantial Evidence

Petitioner argued that the City ' s denial was not supported by competent

substantial evidence in three main areas: (1) the conclusions regarding the CMP; (2)

the conclusions regarding auto - centricity and transportation choices; and (3) the

conclusions regarding urban sprawl and sustainable, compact, and dense

development.

Competent substantial evidence does not refer to the quality, character,

convincing power, or even the weight of the evidence. See Scholastic Book Fairs,

Inc., Great Am. Div. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n.3

(Fla. 5 th DCA 1996). Rath er, c ompetent substantial evidence means such evidence

that may establish a substantial basis from which the fact at issue can be

reasonably inferred, or material and relevant evidence that a reasonable mind could

accept as adequate to support a conclusion . See De Groot v. Sheffield, 95 So. 2d 912,

914 (Fla. 1957). This administrative review is limited to determining whether any

competent substantial evidence exists in the record to support the City's decision.

See Lee Cty. v. Sunbelt Equities, II, Ltd., P' ship, 619 So. 2d 996, 1003 (Fla. 2d DCA

1993). In addition, the undersigned may not reweigh the evidence or substitute her

judgment for that of the City. See Lantz v. Smith, 106 So. 3d 518, 521 (Fla. 1 st DCA

2013).

First, Petitioner argued that there was no competent substantial evidence to

support the City ' s finding that the PD rezoning petition and its proposed CMPs

allowed perpetual silviculture within portions of wetlands and wetland buffers and

conservation land use areas. The City determined that such allowance was

inconsistent and in conflict with the requirements of LDC sections 30 - 3.14B, C, and

H ; sections 30 - 3.17A, D, F, and G ; and specified policies in the Comp Plan. Even

though Petitioner expressed its willingness to modify the CMP proposal , such a

modification was not formally accomplished in a manner that allowed the City to

deem the CMP modified and conclude that the City staff 's concerns about perpetual

silviculture were resolved. City staff's analysis and opinions of record were directed

to and support the City's conclusions regarding the following applicable rezoning

criteria: the character of the district and its suitability for particular uses; the

proposed rezoning in relation to surrounding properties and other similar

properties; co nsistency with the goals, objectives, and policies of the Comp Plan;

external compatibility; usable open spaces, plazas, and recreations areas; and

environmental constraints.

Thus, competent substantial evidence supported the City 's determination that

th e PD rezoning and CON zoning petition was inconsistent with, and in conflict

with , the requirements of LDC sections 30 - 3.14B, C, and H ; sections 30 - 3.17A, D, F,

and G ; and specified policies in the Comp Plan .

Second, Petitioner argued that no competent s ubstantial evidence supported the

City's conclusion that the petition was auto - centric and lacked transportation

choices ; lacked external connections to basic needs and services ; allowed non -

clustered and non - compact development with insufficient developme nt density and

intensity ; and did not support the provision of new public transportation services

such as a new bus route to the area. The City determined th ese issue s caused

inconsistency with the rezoning criteria of LDC sections 30 - 3.14 A, B, and H, and

sections 30 - 3.17A, D, E , and J .

As the City pointed out in its argument, Petitioner cited to some of the same

evidence in the record that supported the City's conclusion. Petitioner then argued

for a different conclusion than the one reached by the City. As discussed above, the

undersigned may not reweigh the evidence or substitute her judgment for that of

the City. See Id.

Third, Petitioner argued that no competent substantial eviden ce supported the

City's conclusion that the petition was inconsistent with the City's established

policy goals of prohibiting urban sprawl ; directing the achievement of sustainable,

compact, and dense development patterns ; and requiring the protection and

promotion of transportation choices. City staff's analysis and expert opinions of

record support the City's conclusion .

Thus, competent substantial evidence supported the City's determination that

the petition was inconsistent with the City's establis hed policy goals of prohibiting

urban sprawl ; directing the achievement of sustainable, compact, and dense

development patterns ; and requiring the protection and promotion of transportation

choices.

D ISPOSITION

In this appeal, Petitioner failed to demons trate: (1) that Petitioner was not

afforded procedural due process ; (2) that the City failed to observe the essential

requirements of law ; and (3) that the City's decision was not supported by

competent substantial evidence. Therefore, the City Commission's denial of the PD

rezoning and CON zoning petition , PB - 17 - 65 ZON, is A FFIRMED .

D ONE A ND O RDERED this 5 th day of May , 202 1 , in Tallahassee, Leon County,

Florida.

S

F RANCINE M. F FOLKES

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5 th day of May , 202 1 .

C OPIES F URNISHED :

C. David Coffey, Esquire Sean M. McDermott, Esquire

C. David Coffey, P . A . City of Gainesville

300 East University Avenue, Suite 110 Office of the City Attorney

Gainesville, Florida 32601 200 East University Avenue, Suite 425

Gainesville, Florida 32601

David A. Theriaque, Esquire

S. Brent Spain, Esquire Daniel M. Nee, Esquire

Benjamin R. Kelley, Esquire City of Gainesville

Theriaque & Spain Office of the City Attorney

433 North Magnolia Drive Post Office Box 490, Mail Stop 46

Tallahassee, Florida 32308 - 5083 Gainesville, Florida 32627

Andrew W. Pe rsons, AICP, LEED GA

Interim Director

Post Office Box 490, Mail Stop 11

Gainesville, Florida 32627

N OTICE OF R IGHT TO J UDICIAL R EVIEW

Pursuant to Section 30 - 3.58 of the City of Gainesville Land Development Code, this

decision shall be final, and may be subject to judicial review as provided in law.