20-002135 Kali Blount, Nkwanda Jah, Joel Parker And Jennifer Parker, And Carrie Johnson vs. Tramell Webb Partners, Inc. And City Of Gainesville Status: Closed DOAH Final Order on Tuesday, December 29, 2020.

Summary: The City of Gainesville's administrative approval of the development plan application for Seminary Lane Development submitted by Trammell Webb Partners, LLC, was affirmed with modifications.

A PPEARANCES

For Appellant s Kali Blount, NKwanda Jah, Joel Parker, Jennifer Parker,

an d Carrie Johnson:

T errell K. Arline, Esquire

T errell K. Arline, Attorney at Law

1819 Tamiami Drive

Tallahassee, Florida 32301

For Appellee Tramell Webb Partners, Inc.:

David A. Theriaque, Esquire

Theriaque and Spain

433 North Magnolia Drive

Tallahasse e, Florida 32308 - 5083

For Appell ee City of Gainesville:

Sean M. McDermott, Esquire

City of Gainesville

Office of the City Attorney

200 East University Avenue , Suite 425

Gainesville, Florida 32601

I

SSUES O N A PPEAL 3

The ultimate issue in this appeal is whether to affirm, reverse, or modify

the City ' s administrative approval on March 27, 2020, of TWP ' s application

for the " Preliminary/Final Development Plans for Phase A: Seminary Lane

Development ." 4 The issues to be determined in this appeal are as follow s:

(1) Whether the approved development is compatible with the historic

Fifth Avenue Neighborhood.

3 The issue of Appellants' standing was dismissed without prejudice in the Order on

Outstanding Motions dated on June 8, 2020 . Appellees did not raise standing as an issue

again and have conceded that the remaining Appellants have standing (Appellees' Pro . Final

Ord. , ¶129 ) .

4 Although the application refers to "Peak Camp us Seminary Lane" and to "Phase A , " the

parties and the undersigned have refe rred to this portion of the development as "Phase 1."

(2) Whether the approved development violates the maximum density

allowed for multi - family development by the LDC.

(3) Whether the approved development mee ts t he compatibility standards

between multi - family development and single - family development found in

the LDC .

(4) Whether the a pprove d development m eet s the building design

standards set forth in the LDC.

(5) Whether the approved development meets the pa rking structure

standards set forth in the LDC.

P RELIMINARY S TATEMENT (P ROCEDURAL H ISTORY )

TWP submitted a development plan application for Phase 1 (of 2) of a

m aster p lanned residential development known as the " Seminary Lane

Development. " On February 4, 2020, the City administratively approved

TWP ' s Master Plan governing the Seminary Lane Development. On

March 27, 2020, the City administratively approved TWP ' s

" Preliminary/Final Development Plans for Phase A: Seminary Lane

Development " (the Development D ecision). On April 24, 2020, Appellants

filed with the City a Notice of Appeal of Administrative Decision under

s ection 30 - 3.57 of the LDC.

The Division of Administrative Hearings (DOAH), by contract with the

City and pursuant to section 30 - 3.57, assigne d Administrative Law Judge

Suzanne Van Wyk to serve as the Hearing Officer for the appeal.

In accordance with the Order of Pre - Hearing Instructions dated May 26,

2020, the City filed a Record on Appeal (Record) on June 9, 2020.

Additionally, pursuant to s ection 30 - 3.57 . C.6.a . , the parties submitted

numerous motions to supplement the record with witness affidavits. All of

the motions to supplement the record were granted and the affidavits of

numerous individuals were made part of the Record, including the following:

Kim Tanzer, Thomas Hawkins, Erick Smith, Patricia Hilliard - Nunn, Gerry

Dedenbach, Russell Adams, Paul Allen, John Webb, NKwanda Jah, Joel

Parker , Jennifer Parker, Carrie Johnson, Floid Churchill, Andrew Persons,

Yvette Thomas, and Liliana Kollu ri.

On June 12, 2020 , Appellants filed their Brief. On September 10, 2020,

after being granted an extension of time, Appellees filed their Joint Answer

Brief.

A public hearing was held on June 19, 2020, allowing unsworn public

comment regarding the Dev elopment Decision and appeal. Thereafter, on

July 31, 2020, the City filed a Motion to Disqualify Administrative Law Judge Van Wyk. On August 3, 2020, DOAH transferred this appeal to

Administrative Law Judge Hetal Desai.

The parties filed several motions that were heard during motion hearings

or pre - hearing conferences held on September 25, 2020, September 8, 2020,

August 25, 2020, June 3, 2020, and May 19, 2020. Orders on these motions

were issued and are reflected on the DOAH electronic docket. Notably, an

Order Clarifying Pre - Hearing Procedures and Hearing Procedures was

entered on August 28, 2020, addressing the briefing schedule, timelines to

supplement the Record, procedures for the final hearing, transcript costs, proposed final or ders, and renderin g of the final order.

The final hearing was held via Zoom web conferencing on September 14

and 15, and October 1 and 2, 2020. At the final hearing , the parties were

allowed to present witness testimony to supplement the Record. Appellants

presented the te stimony of eight witnesses: Appellants NKwanda Jah, Kali

Blount, Jennifer Parker, and Joel Parker; Floid Churchill ( former a ppellant ) ;

Eric Smith (expert witness - arborist); Kim Tanzer (expert witness -

architecture and land use planning); and William Haw kins (expert witness -

land use planning). The City presented the testimony of three witnesses:

Lillian Kolluri (City ' s Environmental Coordinator); Evette Thomas (City

Planner); and Andrew Persons (City ' s Interim Director of the Department of

Sustainable De velopment). TWP presented the testimony o f John Lee Webb

(TWP President); Russell Stuart Ad ams (expert witness - arborist); Paul

Allen (expert witness - architect ure ) ; and Gerry Dedenbach (expert witness -

land use plan ning ). On the last day of hearing, Oc tober 2, 2020, oral

argument was conducted regarding the appeal.

The Transcripts of the public hearing and the final hearing were filed with

DOAH on October 30, 2020. The parties filed a Joint Motion for Extension of

Deadline to Submit Proposed Final Ord ers, which was granted, making the

parties ' post - hearing submissions due on or before November 16, 2020. 5 All

parties timely filed P roposed Fin al O rders, which have been duly considered.

S TANDARD O F R EVIEW

Pursuant to section 30 - 3.57.D. of the LDC, the s tandard of review for this

appeal is as follows:

Appeal criteria . T he 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 wh en the Hearing Officer finds that

the administrative official ' s final decision, order,

requirement, interpretation, determination, or action:

5 Although the LDC requires a final order in an appeal proceeding to be rendered seven days

after the final hearing, the parties had agreed to submit to the traditional deadlines allowed

for providing p roposed final orders, and for rendering of the final order provided for under the DOAH rules. By jointly agreeing to an extension to file the proposed final orders, the

parties waived the deadline for issuance of the final order. See Fla. Admin. Code R. 28 -

106.216(2).

1. Was clearly erroneous or patently unreasonable

and will result in a miscarriage of justice;

2. Has no foundat ion 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 vires 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.

In a footnote in their Proposed Final Order, Appellants argue the City ' s

decisions and interp retations should not be given deference based on

Article V, section 21 of the Florida Constitution (2020) (also known as

Amendment Six). ( See Appellants ' Pro. Final Ord. , p. 22, n. 4).

6 This

constitutional provision states:

In interpreting a state statute or rule, a state court

or an officer hearing an administrative action

pursuant to general law may not defer to an

administrative agency ' s interpretation of such

statute or rule, and must instead interpret such

statute or rule de novo.

Art. V, § 21, Fla. C onst.

Appellants ' reliance o n this provision is misplaced. This provision clearly

addresses non - deference to agencies in interpreting "a state statute or rule. "

Based on the current state of the law, Amendment Six does not apply to local

ordinances or re gulations. See Evans Rowing Club, LLC v. City of

6 Appellees filed a Joint Memorandum of Law Regarding the Applicable Standard of Review

(Memorandum) on December 10, 2020, well after the Proposed Final Orders were submitted.

Appellants filed a Response to the Memorandum on December 16, 2020. Neither filing is

authorized pursuant to the DOAH procedural rules or LDC, nor did Appellees seek leave to

file additional briefing as required by the DOAH rules. See Fla. Admin. Code R. 28 - 106.215 .

Despite being unauthorized, the undersigned has reviewed both the Memorandum and the

Response and addresses the arguments therein for completeness.

Jacksonville , 300 So. 3d 1249, 1249 - 50 (Fla. 1st DCA 2020) (per curiam)

(Wolf, J. concurring) (explaining Amendment Six applies only to state agency

interpretations of state statutes or rules and does not ap ply to local land use

decisions). Even the concurring opinions by Judge Brad Thomas in Evans

Rowing Club and in Neptune Beach FL Realty, LLC v. City of Neptune Beach ,

300 So. 3d 140, 2020 WL 4433806, at *2 (Fla. 1st DCA 2020) (unpublished

opinion) cited by Appellants , acknowledge that the issue of whether

Amendment Six applies to local governments has not been resolve d . Judge

Thomas also correctly states that until the Florida Supreme Court finds to

the contrary, courts must follow Florida precedent of givi ng deference to local

governments in interpretation of their own land use and zoning decisions:

In land - use cases, the hyper - deferential review of

second - tier certiorari is based on the principle that

the local decisions on zoning and exceptions are

entitl ed to " deference [as] to the agency ' s technical

mastery of its field of expertise, and the inquiry narrows as a case proceeds up the judicial ladder. "

Broward Cty. v. G.B.V. Int ' l Ltd. , 787 So. 2d 838,

843 (Fla. 2001) (emphasis added) (footnotes

omitted). The precedent of the supreme court

establishing that district courts are powerless to

conduct plenary review of local zoning decisions is based on the principle that such decisions are inherently administrative and " technical " in nature

and, therefore, the extremely limited review on

appeal, solely by second - tier certiorari, must

respect that administrative competence.

Evans Rowing Club, 300 So. 3d at 1250 (Thomas, J. concurring).

Additionally, the administrative decision cited by Appellants, SCF, Inc. v.

Department of Business and Professional Regulation , C ase No. 19 - 4245RU

(F la. DOAH Order Mar. 13, 2020), was a challenge to a state agency 's

allegedly unadopted rule . In his order, Judge John G. Van Laningham

examined the impact of Amendment Six on state agencies:

But there has been a sea change in administrative

law as a result of the voters ' approval, in 2018, of

" Amendment Six, " which added an anti - deference

provision to the Florida Constitution. Effective

January 8, 2019, article V, section 21, of the Florida

Constitution rescinds the doctrine of judicial

deference as a rule of Florida law. Thus, Florida

agencies can no longer expect to receive judicial

deference, which means that they have lost the

interpretive discretion they used to enjoy — and

with i t the latitude to formulate quasi legislative

policy retroactively, through adjudication.

(emphasis added).

Id. at p.64, ¶117.

Although Judge Thomas in Evans Rowing Club certified a question of

great public importance to the Florida Supreme Court as to whether

Amendment Six applied to local government decisions, the Florida Supreme

Court has yet to address the issue. Like Judge Thomas, t he undersigned

must also follow established precedent and leave it to the appellate courts to

address the applicabilit y of Amendment Six to DOAH and local government

decisions:

If we were not bound by the limited standard of

review applicable here, I would grant the writ. I

again urge the Florida Supreme Court to reconsider

its precedent in this area of law in light of th e

declaration of the people of Florida that courts

must exercise their independent judgment in cases

involving local zoning decisions which both

naturally and procedurally depend on

administrative determinations. … For the foregoing

reasons, I concur with the opinion while urging the

Florida Supreme Court to reconsider its precedent

in this area of law.

Neptune Beach FL Realty , 2020 WL 4433806, at *3 . As such, the deference

provided for in section 30 - 3.57.D. of the LDC to the City must be adhered to

in thi s appeal.

F INDINGS O F F ACT B ASED O N T HE R ECORD

The Parties and Property

1. The Seminary Lane Development consists of multiple parcels totaling

6.33 acres of property that straddle Northwest 5th Avenue and Northwest

12th Street in Gainesville, Florida (Pro perty). 7 The majority of the Property

is owned by the Gainesville Florida Housing Corporation (Housing

Corporation). 8 The area around the Property is known as the Fifth Avenue

Neighborhood (Neighborhood).

2. Appellant Kali Blount is a resident of Gainesvil le who has worked

continuously to improve the Neighborhood since 1987. Mr. Blount has served

multiple terms on the Gainesville Fifth Avenue Community Redevelopment

and Pleasant Street Advisory Board, a board of citizens appointed by the

Gainesville Communi ty Redevelopment Agency (CRA) to advise the CRA on

development in the area including and surrounding the Property.

3. Appellant NKwanda Jah is a resident of Gainesville and is the founder

and executive director of the Cultural Arts Coalition, which is hou sed in the

Wilhelmina Johnson Center located in the Neighborhood at 321 N orthwest

10th Street. The Center is about 200 feet from the Property.

4. Appellant Carrie Johnson resides in the Neighborhood at

705 Northwest 10th Street. Ms. Johnson has lived in her home for the last

35 years. Her home is about 700 feet from the Property.

5. Appellants Jennifer and Joel Parker live in the Neighborhood at

1202 N orthwest 4th Avenue, which is located about 150 feet from the

Property. The Parkers ' home is located in a part of the Neighborhood that has

been designated by the City as the " University Heights Historic District "

(U H HD).

7 Northwest 5th Avenue in Gainesville, Florida , is also known as " Seminary Lane. "

8 The remainder of the Property consists of two additional parcels which TWP int ends to

purchase in the future.

6. Appellee TWP is a Florida limited liability company that is developing

the Seminary Lane Development. TWP submitted the application wh ich

resulted in the Development Decision.

7. Appellee City is a Florida municipality. The City enacted the LDC and

has authorized its staff to administratively issue final approval of TWP ' s

application for the Development Decision.

History of the Proper ty and Neighborhood

8. The Neighborhood has historic and cultural significance to Gainesville ' s

history. In the past, African Americans ( who were denied access to land that

was restricted to " whites only " for residential, commercial, institutional, or

reli gious use elsewhere in Gainesville) exclusively occupied the

Neighborhood. As a result, the community has a number of single - family

homes, as well as religious and institutional buildings that serve the African

American community. S ome Appellants have live d in the Neighborhood since

the Jim Crow era or have close ties to Neighborhood institutions.

9. The homes in the Neighborhood are of varying architecture but are no

more than two - story. They sit on varying lot sizes. The streets in the

Neighborhood are s ometimes narrow and often lack sidewalks.

10. More recently, the Neighborhood has diversified in its residents and

character. For example, although historically African American, non - African

Americans also own property and/or reside in the Neighborhood. In the past

five years, at least two s tudent housing developments, similar to the project

proposed by TWP, have been built in or on the outskirts of the Neighborhood.

11. The City has taken steps to lay the foundation for redeveloping the

Property and Ne ighborhood. T he Property was acquired by the Housing

Corporation. In 2009, the City removed 31 structures from the Property.

Since that time the Property has remained and is currently vacant.

12. In 2017, the City changed the Future Land Use designation f or the

Property and other surrounding and nearby properties to Urban Mixed Use

(UMU) and changed the zoning for the Property to Urban 6 (U6).

13. Ultimately, the Housing Corporation entered into a contract to sell

TWP the Property for $8,590,600.

14. Th e proceeds from the sale of the Property will give the Housing

Corporation funds to further its mission of providing affordable housing in the

form of mortgage - free homes or payment - assisted homes. Additionally, TWP

is obligated to build eight affordable h ousing units on the Property, contribute

$200,000 towards a community center , community space, or for community -

based investment in the surrounding neighborhood, and provide $50,000

toward relocation of a building housing a leadership program currently

loc ated on the site.

The Master Plan and Development Decision

15. On April 17 , 2019, TWP (through a consultant) conducted a workshop

regarding its intention to file an application to develop the Property. At the

time, TWP was applying for a special use permi t for the Seminary Lane

Development. Although special use permits require a neighborhood meeting,

t he workshop was not sponsored by the City, nor was City S taff in attendance

in their official capacity at this meeting.

16. TWP ' s consultant mailed notice of the workshop to property owners in

the Neighborhood and published notice of the neighborhood workshop in the

newspaper. The notice was mailed to Appellants Joel Parker and Jennifer Parker . The notice did not mention a " master plan. " After the workshop, TWP

changed the type of development procedure it would utilize and abandoned

the special use permit process.

17. By way of a letter dated February 3, 2020, the City notified TWP ' s

consultant that it had administratively approved the Seminary Lane Master P lan (Master Plan) and that the approval would remain effective for five

years. The letter stated in relevant part:

The [City ' s] Technical Review Committee (TRC)

has reviewed the Seminary Lane Master Plan, DB

19 - 00180, in accordance with the process and

req uirements as set forth in the [LDC]. Based on

the review by the TRC, the plan has been approved.

Please note, the master plan serves as a basis for

the review of future development plans in the

phased development and any individual phases or

portions of t he project and must be consistent with

the approved master plan. Any future development plan shall comply with the [LDC], the City ' s

Comprehensive Plan and any and all applicable

regulations for the City of Gainesville.

18. The City - approved Master Plan consists of one sheet and sets forth a

graphic of the area approved for development. The Master Plan also indicates

that there will be two phases of development , sets forth the acreage for each

phase (Phase One – 5.41 acres and Phase Two – .92 acres), a s w ell as the

total acreage of 6.33 acres. The Master Plan provides no specific details of the

number of units proposed for each phase of the project or the individual

parcel s within the Property.

19. Rather, t he Master Plan depicts Phase 1 containing propos ed

buildings for multi - family dwelling units and for car parking. T he

Development Decision at issue in this appeal addresses development for

Phase 1 of the project .

20 . Phase 2 is depicted on the Master Plan as containing affordable

housing units on land t o be donated by TWP, proposed parking, and a

stormwater area for the affordable housing units. Phase 2 is not at issue in

these proceedings.

2 1 . T h e Master Plan set s forth the following information related to density

for the entire proposed development, bo th Phase 1 and Phase 2.

TABLE 2: PROPOSED MAXIMUM BED COUNT

AREA BEDS

ALLOWABLE** 1042

**ALLOWABLE TOTAL BASED ON THE

MAXIMUM NUMBER OF DWELLING S IS

PERMITTED BASED ON LAND DEVELOPMENT

CODE (LDC) §30 - 4.9.C1 60 UNITS PER ACRE @

6.33 ACRES = 379 UNITS MAX 379 UNITS @ 2.75

BEDS/UNIT = 1042 BEDS MAX [ 9 ]

22. The City provided no public notice of the TRC ' s review of the Master

Plan. The City provided no notice to anyone - besides TWP - of its decision to

administratively approve the Master Plan. The City di d not inform anyone

living in the Neighborhood, including Appellants, about its consideration or

administrative approval of the Master Plan.

23. After the Master Plan (labeled by the City as DB - 90 - 180) was

administratively approved by the City for the Sem inary Lane Development ,

TWP submitted a major development plan application for the first phase of

the development which was referred to as " Peak Campus Seminary Lane "

(labeled by the City as DB - 19 - 00074). As required by the LDC, the

appli cation was review e d by the TRC , made up of City S taff from different

departments, for consistency and compliance with the LDC and with the

Master Plan.

24. Although TWP argues this development is not " student housing, " the

units will contain up to four bedrooms, each with their own bathroom, and a

very small living space. As a practical matter, although technically the

development is not limited to students, it will cater to the large student

population in Gainesville. The floor plan is a dorm - like apartment setting,

and, as the "Campus" in its name suggests, the development is within

walking distance to the University of Florida campus.

25. On March 27, 2020, after five rounds of review, the TRC

administratively issued a final approval for DB - 19 - 00074 , the Development

Deci sion. The approved Development Decision consists of approximately 46

sheets of schematics, renderings, and plans for stormwater, demolition , tree

9 The term "beds" refers to the number of bedrooms per unit.

protection, grading, drainage, underground utilities, landscape, and

architecture.

26. The Development Decisi on involves three development areas that

make up the Property : Area A, Area B, and Area C. Below is a graphic of the

areas and buildings approved by the TRC in the Development Decision as

superimposed on the Master Plan.

27. Area A is located on the nort hwest corner of Northwest 5th Avenue

and Northwest 1 2th Street. It is one block east of N orthwest 13 th Street, a

major street through Gainesville, Florida. The area across N orthwest 12 th

Street east of Area A is zoned RSF - 4 and Residential Conservation (RC ). The

area north of Area A, which is separated from Area A by an undeveloped (and

perhaps abandoned) right - of - way or an alley, is zoned Urban 2 (U2) and has a

Future Land Use Designation of Residential Low (RL).

28. Area A consists of buildings (as expla ined below) that will house multi -

family residential units and a parking garage. The proposed building s are

connected as one structure and ha ve a " terraced " design containing three to

five stories. The parking garage is wrapped with multi - family residentia l

units, but some sides of the parking garage face the outside streets.

29. Area B is a backwards " L " shaped parcel on the interior portion of a

block bordered by N orthwest 5 th Street to the north . Building B1 is on the

west portion of the parcel . It has a " terraced " design similar to the building in

Area A, and also contains multi - family residential units and a multi - story

parking garage attached to its southern wall. Building B1 abuts the rear of

several single - family homes.

30. Building B2 is also on thi s parcel and will contain multi - family

residential units but have no parking. Building B1 ' s parking garage will

serve the units in Building B2. It also abuts the rear of several single - family

homes.

31. Area C is located on the southeast corner of N orthwes t 5 th Avenue

and N orthwest 12 th Street. The building in Area C will be four stories and

will contain multi - family residential units but have no parking. Building B1 ' s

parking garage will serve the units in Building C.

32. The homes abutting Area B on the south are in " a designated historic

district, " U H HD. Several single - family homes located in this historic district

are within 100 feet from the south side of B uildings B2 and B1.

33. Although the number of units to be built is not specified in the

Develo pment Decision, the following is provided regarding the maximum

number of bedrooms:

PROJECT DESCRIPTION:

Only Phase 1 as seen on the master plan is

proposed to be permitted with this set. Phase 1 includes areas, area [sic] A, B and C.

Area A & B include t he construction of a three and

five - story multi - family building with a four - story

parking garage, amenities, underground stormwater system, landscape and utilities.

Area A proposes a total of 502 beds.

Area B proposes a total of 325 beds.

Area C include s the construction of a four - story

multi - family building with included amenity space,

utilities, underground stormwater and landscaping.

Area C proposes a total of 32 beds.

The total proposed beds for Phase 1 is 859. Based on

a total allowable of 1,042 be ds , Phase 2 can have up

to 183 beds. (emphasis added) .

34. As noted above, Phase 1 will allow development of 859 bedrooms in

three separate multi - family buildings located on Areas A, B, and C in the

Neighborhood. S ection 30 - 4.8.D.3.a., establishes the fol lowing formula for the

maximum bedrooms in multi - family developments:

Multi - family developments shall be limited to a

maximum number of bedrooms based on the

development ' s maximum residential density

allowed by the zoning district multiplied by a 2.75

mult iplier.

35. Using this multiplier, the maximum number of units approved by the

City for Phase 1 is 3 12 units. Additionally, the parking structures attached or

part of Buildings A and B1, will provide 537 motor vehicle parking spaces.

36. Prior to commenci ng construction on Phase 1 of the proposed

development, TWP must submit documentation and obtain building permit s

for the individual buildings . According to the testimony at the hearing, the

building permit documentation will be consistent with the Develop ment

Decision but have more detail.

Issue I - Whether the approved development is compatible with the historic

Fifth Avenue Neighborhood.

37. Appellants contend that the size and nature of the multi - family

buildings and the multi - story parking structures contrast with the existing

neighborhood in a manner that does not fit with the character of the

N eighborhood. Specifically, Appellants point to the approve d 312 off - campus

apartments with 859 bedrooms and 537 motor vehicle parking spaces as

compared with the existing single - family homes surrounding the Property.

(App ellants ' Pro posed Final Or der , ¶ 46). Appellants also contend potential

residents of the project (i.e. students) will not mix with the existing residents

in the Neighborhood .

38. More specifica lly, Appellants argue the Seminary Lane Development

violates s ection 30 - 1.3 of the LDC, which is entitled " Purpose " and states as

follows:

This chapter implements the City of Gainesville

Comprehensive Plan (Comprehensive Plan) to

secure an environment for present and future

generations that is environmentally sustainable,

socially just and desirable, and economically sound through the scientific, aesthetic, and orderly disposition of land, resources, facilities and services.

39. Further, Appellants argue t hat the Seminary Lane Development

violates the objectives described in section 30 - 1.4 of the LDC:

This chapter is prepared in accordance with and for

the promotion of the goals, objectives and policies of the Comprehensive Plan. The regulations herein

are designed to conserve the value of land, building

and natural resources; protect the character and maintain the stability of residential, commercial and industrial areas; and provide for efficiency and economy in the process of development through:

A. Pres ervation, protection and conservation of

significant natural features of land, creeks, lakes,

wetlands, uplands and air;

B. Appropriate use of land;

C. Regulation of the use and occupancy of

buildings, land and water;

D. Healthful and convenient distrib ution of

population;

E. Provision of convenient circulation of people and

goods and the control of traffic congestion;

F. Provision of adequate public facilities and

utilities;

G. Protection, enhancement and perpetuation of

specific community areas with special character,

interest or value representing and reflecting

elements of the city ' s cultural, social, economic,

political, historical and architectural heritage;

H. Establishment of zoning districts regulating the

location and use of buildings and oth er structures,

and the use of water and land for trade, industry,

residence and other purposes, by regulating and

limiting the height, bulk and access to light and air of building and structures, the area of yards and other open spaces and density of use; and

I. Provision of low cost, efficient and expeditious

development review process. (emphasis added).

40. Article I of the LDC is titled " Generally " and City Staff has construed

this p rovision a s being aspirational rather than imposin g any substantive

r equirements for a proposed development. A plain reading of Article I

i ndicates it is a description of the general purpose and objectives that

motivat ed the City when it adopted the land development regulations that are

codified as the LDC. It is prefatory in nature, serving as an introduction and

guidance to interpreting the requirements set forth in the LDC. Thus,

compliance with the specific substantive requirements contained in Articles

III through X of the LDC would carry a presumption of furthering th ese

motivational goals and objectives; violation would indicate that a project was

inconsistent with these goals and objectives. Whether the Development

Determination violated the substantive requirements of the LDC are

addressed below.

41. As such, n eith er LDC section 30 - 1.3 nor section 30 - 1.4 provides a basis

upon which to challenge the Development Decision. See generally Dep ' t of

State v. Fla. Greyhound Ass ' n, Inc. , 253 So. 3d 513, 521 (Fla. 2018)

( " Although prefatory language may aid a court to determi ne legislative intent

when the operative terms of a provision of law are ambiguous, such language

does not control interpretation of the operative terms of that provision. " ); Per

Jonas Ingvar Gustafsson v. Aid Auto Brokers, Inc. , 212 So. 3d 405, 409 (Fla.

4th 2017)(noting prefatory language did not necessarily create any

obligations).

42. As such, the Development Decision cannot be said to violate sections

30 - 1.3 or 30 - 1.4 of the LDC. The City ' s interpretation of these sections in

approv ing the Development Decision is not clearly erroneous , patently

unreasonable, or unfounded in reason. Nor will the City ' s determination

result in a miscarriage of justice or an ultra vires act.

Issue II - Whether the approved development violates the maximum density

allowed for multi - family development by the LDC.

43. Appellants argue that the Development Decision exceeds the density

allowed by the LDC. The City found that the project was entitled to a density

bonus based on the preservation of a tree. Based on this bonus, the City

approved 60 units per acres. TWP counters that appellants waived the issue

of density because Appellants did not appeal approval of the Master Plan,

and even if not waived, the City ' s density calcula tions are correct.

Did Appellants waive the is sue of density? 10

44. Section 30 - 3.57 allows the appeal of " a final decision, order,

requirement, interpretation, determination, or action. " As stated above,

Appellants challenge the density allowed in the Devel opment Decision

proposed for Buildings A, B1, B2, and C, not the Master Plan. Appellees '

waiver argument fails for the following reasons.

45. First, t h e Master Plan does not provide an actual number of units or

beds that will be constructed in each phase or area , nor does it identify the

qualifying tree that results in the density bonus. Rather, it provides for the

10 The LDC defines " density " as " the extent of development of residential uses, expressed in dwelling

units per acre of land. "

maximum allowable density for the project in a chart titled " Proposed

Maximum Bed Count " (emphasis added). The use of the wor d " proposed "

indicates that this number was not the final or ac tual number approved by

the City .

46. Second, the LDC anticipates that a master plan is just one step in the

development process, not a final step. It states:

Sec. 30 - 3.49. - Master plans.

A. Purpose. Master plan review is an optional step

for projects t hat fall within the intermediate or

major level of development review. A master plan is

intended to provide for large area planning for phased developments . The intent of the master plan

is to identify internal and external connectivity,

regulated natural and archeological resources, and

developable areas.

B. Review and effect. Master plans are reviewed

by the technical review committee in accordance with the process set forth in this division for

development plan review, and must demonstrate

that the com pleted development will be consistent

with this chapter and with the Comprehensive

Plan. Each phase must include a proportionate

share of any required recreational and open space,

and other site and building amenities of the entire

development, except that more than a

proportionate share of the total amenities may be included in the earlier phases with corresponding

reductions in the later phases. An approved masterplan will serve as a basis for review of future

development plans in the phased development, and

individual phases or portions of the project must be

consistent with the approved master plan.

C. Expiration of master plan. A master plan

shall be effective for up to five years from the date

of approval. (emphasis added).

47 . Third, the City ' s Feb ruary 3 letter approving the Master Plan

explicitly states that the Master Plan is not final. Rather, the City informed

TWP " the master plan serves as a basis for the review of future development

plans in the phased development and any individual phases or portions of the

project ." It goes on to state that a ny " development plan shall comply with the

[LDC], the City ' s Comprehensive Plan and any and all applicable regulations

for the City of Gainesville. " The clear intent is that a development plan would

be s ubmitted in the future and that each phase of the development would

require a separate review of consistency with the LDC.

4 8 . Lastly , the notice s regarding the workshops were not from the City ,

nor did the workshop notice mention " Master Plan. " The City and TWP admit

that they did not provide notice to anyone that the TRC had approved the

one - page Master Plan because the LDC does not require it .

49 . Appellants did get actual notice, albeit not automatically or from the

City, that the a pplication for Phas e 1 of the project was approved in the 45 -

page Development Decision that had the actual bedroom numbers and

identified the qualifying tree . A s a practical matter, Appellants could not

have challenged the size of the qualifying tree (as discussed below) wit hout

identification of the tree or the final numbers proposed for the development.

50. To require Appellants to have appealed the Master Plan ' s proposed

density formula without having been give n notice o f the specific details

provided in the Development De cision would be a miscarriage of justice. See

generally Mordenti v. State , 630 So . 2d 1080, 1084 (Fla. 1994) (noting a

fundamental error " equivalent to a denial of due process " results in a

miscarriage of justice). They have the right to challenge the dens ity numbers

approved in the Developmental Decision, even though the formula w as

previously established in the Master Plan.

Was TWP entitled to a tree bonus ?

51 . As stated above, the Property is located in a zoning district designated

as U6, which allows a broad range of uses including multi - family residential .

Pursuant to section 30 - 4.13, the maximum residential density in the U6

Zoning District is 50 units per acre " by right " and up to 60 units per acre with

certain bonuses. Section 30 - 4.9 establishes t he City ' s incentive - based

" Development Bonus System " :

A. Available bonuses . In accordance with this

section and up to the limit allowed with bonuses as

specified for the applicable zoning district,

development projects may be eligible for:

1) additional bu ilding stories and the corresponding

increase in overall building height; and 2) increased

residential density. (emphasis added) .

5 2 . Section 30 - 4.9.C.1. awards a developer a density bonus of ten units per

acre if the development preserves either one High Quality Heritage Tree with

a diameter breast height (DBH) of more than 71 inches or two trees that have

a DBH of between 51 to 70 inches. It provides:

RESIDENTIAL DENSITY BONUS

High Quality Heritage Tree Preservation (fair or better condition):

Tree DBH 20 " — 30 " 31 " — 50 " 51 " — 70 " 71 "

Bonus DU/Acre 0.5 1 5 10

5 3 . Although Appellants presented contrary measurements, t he record

reflects that the City and TWP presented evidence that the Property has a

qualifying tree in Area A with a DBH of 71. 8 inches. This tree is located on

the eastern side of proposed B uilding A on Northwest 12 th Street.

Additionally, there is testimony in the record that there are two trees in Area

B that have a DBH of between 5 1 and 70 inches that would also qualify for

th e bonus and award TWP 10 bonus units per acre.

5 4 . There is no dispute that the development is a "project" as defined by

the LDC. 11 Section 30 - 4.18 provides that the density bonus applies project -

wide, not just in the immediate area where the qualifying tree exists:

Development criteria described in the density

bonus points manual, when met, shall allow increases in development intensity based upon the

limits in this section. These increases in intensity

shall be allowed should a developer propose to unde rtake a project that will result in a

development sensitive to the unique environmental

and developmental needs of the area. For each

criterion met by the developer, certain points shall

be credited to the project. Those points, calculated in accordance wi th the Density Bonus Points Manual,

shall determine the maximum allowable density.

(emphasis added).

5 5 . Appellants also assert that the Development Decision fails to protect

the qualifying tree in Area A and that as proposed, the building would harm

11 The City ' s LDC defines " project " as follows:

Project means a single development as designated by the

applicant, but two or more purportedly separate

developments shall be considered one project if the City Manager or designee determines that three or more of the following criteria exist :

A. The purportedly separate developments are located within

250 feet of each other;

B. The same person has an ownership interest or an option to

obtain an ownership interest of more than 50% of the legal

title to each purportedly separate development;

C. There is a unified development plan for the purportedly

separate developments;

D. The purportedly separate developments voluntarily do or

shall share private infrastructure; or

E. There is or will be a common management or advertising

scheme for the purportedly separate developments.

LDC § 30 - 2.1. The development fulfills criteria A, B, C, and E.

the qualifying tree's root structure or interfere with the tree's "dripline." In

other words, Appellants argue, the City has failed to require TWP to provide

a sufficient buffer to ensure the qualifying tree remains healthy. At the

hearing, TWP objected to te stimony regarding this issue because it was not

raised in Appellants' Amended Notice of Appeal or any supporting briefs. The

undersigned agrees and sustains the objection regarding the "dripline" issue.

56. Even if this issue had been properly raised, the undersigned must

defer to the City Staff, who did not seem concerned that the tree w ould not

remain in "fair or better" condition as required for the bonus.

5 7 . The City ' s calculation of 60 units per acre for the maximum density for

the p roject ( which incl ude s the 50 units provided for the U6 Zoning District

plus the 10 - unit bonus for having one or more qualifying High Quality

Heritage Trees ) cannot be said to be clearly erroneous , patently

unreasonable, or unfounded in reason. Nor will the City's density c alculations

result in a miscarriage of justice or an ultra vires act.

Did the City err in calculating the density amount for Phase 1?

5 8 . TWP intends to develop Buildings A, B1, B2 , and C to have 312

residential units and 859 beds. Appellants argue that th e City erred in

allowing TWP to " transfer " density from Phase 1 to Phase 2, and among

a reas. As indicated above, the City determined that TWP was allowed a

maximum of 379 units or 1,042 beds. The record further establishes all of the

project ' s units could theoretically be placed anywhere on the P roperty .

5 9 . The City determined a maximum density of 379 units, based on the

60 - unit per acre density calculation and the 6.33 acreage for the entire

project. The City further determined that based on the entire si ze of the

project, the maximum number of bedrooms ( calculated by multiplying the 379

units by the 2.75 multiplier for allowable bedrooms per unit ) would be 1042

bedrooms.

60 . Appellants seem to argue that the density calculations should have

been done by phase or parcel. In other words, they insist the density

allowance (here, 60 units or 1 65 beds per acre) should be multiplied by

individual acreage for each area and not the 5.41 acres for Phase 1 or the 6.33

acreage of the entire project.

6 1 . Below is a chart comparing the calculations for the separate areas.

Property Size Number of Number of Number of

Units allowed units allowed by exception (@ 60) for tree Units approved in the Development

by Right (@ 50 per acre)

bonus Decision

Area A 2.91 145 174 1 75

Area B 2.24 112 134 129

Area C 0.26 13 15 8

Phase 1 5.41 270 324 312

Total Project 6.33 316 379 n/a

6 2 . Assuming the density should be based on the size of the parcel being

developed in each phase, the total area for Phase 1 (Areas A, B, and C) be ing

developed would be 5.41 acres. This would equate to maximum density of 324

units or 891 beds for Phase 1. Again, TWP only seeks to develop 312 units

with 859 beds . This is well under the density limitation calculated by

Appellants for Phase 1.

6 3 . Us ing Appellants ' method of calculation per parcel , the allowable

density approved for A rea A is one unit over the allowable amount under the

LDC (using the bonus formula). This is t he only portion that would go beyond

the maximum amount . This parcel approac h, however, is not consistent with

the LDC. As indicated above , the density bonus is project - wide, not phase or

parcel dependent. I t would be illogical to calculate the density bonus per

project, and not also calculate the base density the same way, per pr oject.

6 4 . The testimony of City Staff ( taken at the hearing and made part of the

record) also establishe s that a development applicant may allocate density

anywhere within the boundaries of the project, regardless of whether the

project consists of multip le lots or parcels , and regardless of whether the

project has streets crossing through the project. For example, all the

approved 312 units for Phase 1 could be located in Area A even though this

amount was calculated based on the entire Phase 1 acreage, s o long as the

project complied with other aspects of the LDC.

6 5 . Because the density is correctly calculated for the entire project area

and th e proposed number of beds is consistent with the terms of the LDC, it

cannot be said that the City ' s determinat ion of maximum density is clearly

erroneous, patently unreasonable, or unfounded in reason. Nor can it be said

that these calculations would result in a miscarriage of justice.

Issue III - Whether the approved development meets the compatibility

standards between multi - family development and single - family development

found in the LDC.

6 6 . Appellants argue that the project violates the LDC because it is a

multi - family development that fails to comply with section 30 - 4.8 of the LDC.

Section 30 - 4.8.D. states, in pertinent part, as follows:

1. Generally. Multi - family development shall

contain no more than six dwelling units per

building and shall be in the form of single - family

dwellings, attached dwellings, or small - scale

multi - family when located within 100 f eet of any

property that is in a single - family zoning district ,

the U1 district, or a designated historic district.

(emphasis added).

67. A plain reading of section 30 - 4.8.D.1. indicates the restrictions in that

section apply only to multi - family developm ent in three instances: when the

project is located wi thin 100 feet of any property in (1) a single - family zoning

district, (2) a U1 Zoning District, or (3) a designated historic district.

68. Section 30 - 4.2 sets forth the zoning districts that are consi dered

" single - family " by the City.

Future Land Use Category Zoning Districts

Single - Family (SF) U1, RSF - 1 to 4, RSF - R

69. Before evaluating Appellants ' argument regarding subsection D.1 ., it

is helpful to identify the zoning districts surround the Pr operty . With regards

to Area A, the land to the north is zoned U2, U4 , or U6; the land to the

immediate east is zoned U8; the land to the west across N orthwest 12 th

Street is zoned U6, RSF - 4 , and RC; and the land to the south is mostly U6,

but the south west corner catty - corner to the property is zoned U8. Again,

only the RSF - 4 to the east of Area A is a " single - family " zoning district.

70. Areas B and C are surrounded by U4 and U6 zoning districts . To the

south of Area B, is property located in the UHHD, a designated historic

district. According to the Development Decision, B uilding B 2 is within 100

feet from the UHHD.

71. The City has interpreted section 30 - 4.8.D.1. as establishing a definite

prescriptive compatibility standard that applies specifically to a land area

that is measured as 100 feet within certain areas (i.e., single - family zoning

district, U1 district, or designated historic district). Here, there are two areas

of the proposed project that trigger section 30 - 4.8.D.1. First, there is the

por tion of Area A that is located on Northwest 12th Street and 100 feet from

the RSF - 4, a " single - family zoning district. " A ccording to the City, section 30 -

4.8.D.1. does not apply to the entirety of a project area, no matter how large,

just because a portion may be within 100 feet of a described area. Rather, it

applies only to the portion that is located within 100 feet of that designated

zone . Thus, the City determined that the limitation of no more than six

dwelling units per building and the requirement t hat such buildings be in the

form of single - family dwellings, attached dwellings, or small - scale multi -

family only applies to that portion of the project area which is located within

100 feet of the RSF - 4 Zoning District.

72. The issue then becomes whether the restrictions in section 30 - 4.8.D.1.

apply to the entire Building A, or only that portion that is built in Area A

that is within the 100 feet of the RSF - 4 Zoning District. City Staff has

a pplied this provision to achieve development within the applicab le 100 - foot

area where each building, or portion thereof, contains no more than six

dwelling units in the form of single - family dwellings, attached dwellings, or

small - scale multi - family. This achieves the City ' s goal to provide a transition

between proper ty designated as a single - family zoning district, U1 district, or

a historic district and property proposed for larger - scale development.

73. As an example, Appellees point to Figure 2 in section 30 - 4.8, which

depicts an example of allowable transition in g between property in a

designated single - family zon ing district and a portion of a multi - family

building that lies within 100 feet of th at zoning district .

74. The Development Decision depicts three separate structures of

residential development that a re on the eastern side of Building A. The City

has interpreted these three structures as " buildings " because they will be

built for the enclosure or shelter of persons. 12 Although Appellants argue that

these three structures are part of one building, Buildi ng A, and cannot be

treated separately, the undersigned defers to the City 's determination that

these are three separate buildings. Similarly, the City considers the parking

structure as a separate building from the three buildings in Area A on

Northwest 1 2 th Street.

75. These three buildings make up the only portion of the development

that is located within 100 feet of property in a single - family zoning district.

Each building is capped at three stories with a maximum of six units per

building. Thus, these buildings are in the form of a small - scale multi - family

structure with a maximum of six units per building and, thereby, meet the

requirements of s ection 30 - 4.8.D.1., as interpreted by the City.

76. The second area triggering section 30 - 4.8.D.1 is in Are a B. TWP

disclosed that as approved, Building B2 exceeds the maximum density of six (6) dwelling units per building for multi - family development because that

portion of the building, which is five stories tall, is located within 100 feet of

the U H HD. The City failed to detect this conflict with the LDC when it

approved the development of Building B2 in the Development Decision.

77. Pursuant to section 30 - 3.57.C.7., TWP request ed at the hearing that

the undersigned consider modif ied plans for Building B2 th at correct the

error approved by the City . The undersigned declines to do so. Rather, b ased

on the representations by the City at the hearing, the portion of the

12 The City ' s LDC defines " building " as follows:

Building means any structure, either temporary or

permanent, except a fence or as otherwise provided in t his

definition, used or built for the enclosure or shelter of persons,

vehicles, goods, merchandise, equipment, materials or

property generally. This definition shall include tents, dining

cars, trailers, mobile homes, sheds, garages, carports, animal

kenn els, storerooms, jails, barns or vehicles serving in any

way the function of a building as described herein. This

definition shall not include individual doll houses, play

houses, and animal or bird houses.

Development Decision approving Building B2 is reversed without prejudice,

so that TWP may pro ceed with development of Buildings A , B1, and C, and

submit an amendment to the City for TRC review and approval of revised

plans for Building B2.

78. Appellants next argue that the Development Decision violates section

30 - 4.8 . D.2.e., which requires certa in dividers in the form of walls or screening

between multi - family projects that ab ut single - family properties:

2. Abutting single - family property . All new

multi - family projects, whether stand alone or part

of a mixed - use project, abutting property in a

re sidential district or a planned development

district with predominantly residential uses shall

comply with the following regulations:

* * *

e. A decorative masonry wall (or equivalent

material in noise attenuation and visual

screening) with a minimum hei ght 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 . However, driveways,

emergency vehicle access, or pedestrian/bicycle

access may interrupt a continuous wall. If, in the

professional judgment of city staff or other

professional experts, masonry wall construction

would damage or endanger significant trees or

other natural features, the appropriate reviewing

authority may au thorize the use of a fence and/or

additional landscape buffer area to substitute for

the required masonry wall. There shall be no

requirement for a masonry wall or equivalent if

buildings are 200 or more feet from abutting

single - family properties. In addi tion, the

appropriate reviewing authority may allow an

increased vegetative buffer and tree requirement

to substitute for the required masonry wall.

f. The primary driveway access shall be on a

collector or arterial street, if available. Secondary

ingress /egress and emergency access may be on or

from local streets. (emphasis added).

79. Specifically, Appellants argue that Building A fails to provide the

proper wall and dividers from the property to the north of Area A. Area A is

separated from the propert y to the north by a 15 - foot alley which includes the

paved portion of Northwest 6 th Avenue. This area includes a former

appellant ' s property and homes that were built by or with the assistance of

Habitat for Humanity. Although this alley may be an abandone d right - of -

way, a platted street maintained by the City, or simply an undeveloped portion of Northwest 6 th Avenue, it is clear that there is separation between

Area A and the single - family homes to the north.

80. Section 30 - 2.1. provides clarification by defining " adjacent " and " abut " :

Adjacent means when two properties, uses or

objects are not abutting but are separated only by a

right - of - way, street, pathway or similar minimum

separation.

Abut means to physically touch or border upon, or

to share a comm on property line.

81. As such, Area A does not abut the residential property to the north

but rather, is adjacent to that area.

82. Moreover, this area to the north of Area A is zoned U2 and is not

included as a residential zoning district in section 30 - 4 .1 , which is described

as follows:

Residential

RSF - 1 to 4 Single - Family

RC Residential Conservation

MH Mobile Home

RMF - 5 Single/Multi - Family

RMF - 6 to 8 Multi - Family

83. Even assuming the property to the north of Building A abuts the

proje ct, neither section 30 - 4.8.D.2.e. nor section 30 - 4.8.D.2.f. is applicable to

the Development Decision. Section 30 - 4.8.D.2.e. requires a decorative

masonry wall only to " separate multi - family residential development from

properties designated single - family residential. " There are no properties

which abut the property that are " designated as single - family residential. "

84. Section 30 - 4.8.D.2.f. requires the primary driveway access to " be on a

collector or arterial street, if available. " Section 30 - 2.1 defin es both collector

and arterial streets as follows:

Arterial or arterial street means any street:

A. Designated as arterial on the roadway map on

file in the public works department;

B. Functionally classified by the state department of transportation as an urban principal arterial

street or an urban minor arterial street; or

C. Designated by the city commission as an arterial

street based on its physical design, moderately long

trip length, and existing or anticipated traffic characteristics.

* * *

C ollector or collector street means any street:

A. Designated as collector on the roadway map on

file in the public works department;

B. Functionally classified by the state department

of transportation as a collector; or

C. Designated by the city com mission as a collector

street based on its physical design, moderate trip

length, and existing or anticipated traffic

characteristics.

85. It is undisputed that a collector or arterial street is not available to the

project. Thus, the Development D ecision complies with the requirements of

section 30 - 4.8.D.2.f.

86. With the exception of Building B2, it cannot be said that the City ' s

determinations that TWP ' s application meets the requirements of sections

30 - 4.8.D.1. and 30 - 4.8.D.2.e. and f. are clearly err oneous, patently

unreasonable, or without foundation in reason. Nor can it be said that the

City ' s finding of compatibility and compliance with these sections of the LDC

will result in a miscarriage of justice or is an ultra vires act.

Issue IV - Whether t he approved development meets the building design

standards set forth in the LDC.

87. Appellants argue that the project does not meet building design

standards set forth by the LDC. Appellants contend that the Seminary Lane

Development fails to provide bu ilding entrances as set forth in section 3 0 -

4.14 . D.

88. Section 30 - 4.14.D. states as follows:

Building entrances.

1. Each building shall provide a primary public

entrance oriented toward the public right - of - way,

and may be located at the building corner f acing

the intersection of two streets . Additional entrances

may be provided on other sides of the building.

2. Primary public entrances shall be operable,

clearly - defined and highly - visible. In order to

emphasize entrances they shall be accented by a

chan ge in materials around the door, recessed into

the façade (alcove), or accented by an overhang,

awning, canopy, or marquee.

3. Building frontages along the street shall have

functional entrances at least every 150 feet.

( e mphasis added).

89. First, Appel lants contend that the development proposed for Area A

does not provide for primary entrances into the residential portion of the

building on two streets. As noted above , the development proposed for Area A

is made up of more than one building. T here are a t least three buildings

fronting Northwest 12 th Street that are within 100 feet from the RSF - 4

Zoning District, the larger building made up of five s tories that is outside the

100 - f oo t area , and the parking structure .

90. TWP must make sure that each buil ding complies with the LDC

requirements. Assuming the portion of Building A that is beyond 100 feet

from the RSF - 4 Zoning District is a separate building, it has one public

entrance into a proposed non - residential space at the corner of Northwest 5th

Avenu e and Northwest 12th Street. This satisfies the LDC ' s provision that

states the entrance " may be located at the building corner facing the

intersection of two streets. "

91. There are , however, multiple building s (as defined by the LDC) in

Area A. The dr awings and plans approved by the City in the Development

Decision do not reflect that each of the three buildings that front Northwest

12th Street and are located within 100 feet from the RSF - 4 Zoning District

have their own entrances " oriented toward the public right - of - way . " Because

this failure to designate entrances for each of these three buildings is in

violation of the LDC and clearly erroneous, the Development Decision must

be modified to require entrances for each building in Area A .

92. Appellant s also contend that the buildings set to be constructed on

Proposed Development Area B do not have any entrances oriented toward the public right - of - way. Because approval of Building B2 has been reversed, the

issue of whether the entrance complies with the LDC is moot.

93. Regarding Building B1, which is made up of a residential portion and

a parking garage, the Development Decision plans indicate an entrance at

the corner facing Northwest 5th Street, which is a public right - of - way. Thus,

the proposed Bui lding B1 complies with the entrance requirements of the

LDC.

94. Finally, the Development Decision plans relating to Building C reflect

that its primary public entrance is on the west side of the building facing

Northwest 12 th Street , which is a public ri ght - of - way. Thus, the proposed

Building C complies with the entrance requirements of the LDC.

95. With the exception of the three buildings that lack complying

entrances in Area A modified above, it cannot be said that the City ' s decision

in approving the proposed plans for Buildings A, B1 , or C are clearly

erroneous, patently unreasonable, or without a foundation in reason. Nor can

it be said that the approval of these buildings and their entrances would

result in a miscarriage of justice or constitute an ultra vires act.

Issue V - Whether the approved developm ent meets the parking structure

standards set forth in the LDC.

96. Appellants argue that the two parking structures in the project violate

the LDC ' s provisions regulating parking structures.

97. Se ction 30 - 7.3 provides the following regarding structured parking:

A. Development plans for new parking structures

as a principal or accessory use must:

1. Minimize conflict with pedestrian and bicycle travel routes;

2. Provide parking for residents, emp loyees, and

customers to reduce the need for on - site surface

parking;

3. Be located and designed to discourage vehicle

access through residential streets ; and

4. Design facilities for compatibility with neighborhoods by including ground floor retail,

o ffice, or residential use/development (as

appropriate for the zoning district) when located on a public street. The facility must also have window

and facade design that is scaled to relate to the

surrounding area.

B. Structured parking may not be locate d within

100 feet of property zoned for single - family use.

98. Section 30 - 4.15.C. further provides :

C. Design of parking structures .

1. Parking structures located along Storefront

streets shall be concealed by liner buildings , which

may be attached or d etached from the parking

structure . The liner building shall have a minimum

of two stories and a minimum height of 30 feet and

a minimum depth of 25 feet along the entire length

of the parking structure.

2. Parking structures located along Principal

stree ts shall be required to provide ground floor

commercial or office space along the street frontage.

3. On all other streets , any structured parking that

is not concealed behind a liner building or ground floor commercial or office space shall have

decorati ve screening walls, perimeter parking

landscaping per Article VII, or a combination

thereof to screen ground floor parking. ( figures and

references omitted; e mphasis added).

99. Appellants first argue that the Development Decision does not comply

with sec tion 30 - 7.3 . A. 3 ., which discourages vehicle access to and from a

parking structure via residential streets. Notably, this section does not

prohibit vehicle access through residential areas but just discourages it .

According to the record, the parking struc ture in A rea A has vehicle access on

the southside through an opening to Northwest 5th Street and on the

northside on Northwest 6th Street. Both of the entrances to the parking

structure seem to be toward the west end of Area A, away from the properties in the RC and RSF - 4 zoning districts and closest to Northwest 13th Street.

As indicated above, Northwest 13th Street is a multi - lane road running

through Gainesville.

100. Moreover, the parking structures in Areas A and B have access from

Northwest 5th Str eet , which the City consider to be a " S torefront street, " not

a " residential street. " Therefore, section 30 - 7.3 . A.3 . is not implicated for these

vehicular access openings.

101. The Northwest 6th Avenue entrance for the parking garage in Area A

is depicted on one of the architectural sheets that makes up the

Developmental Decision. As stated above, Northwest 6th Avenue runs

between Area A and a number of single - family homes. Vehicular access so

close to the residences could be disruptive and not compliant wi th the LDC's

goal in section 30 - 7.3 of minimizing conflict with nearby residences.

102. The hearing testimony established that during the TRC review

process the City requested TWP remove the Northwest 6th Avenue vehicular

access opening . TWP claims that th e original architectural sheet has simply

not been updated. To the extent the Developmental Decision has not been

updated, the Developmental Decision is modified to remove the vehicular

access from Northwest 6th Avenue into the parking structure in Area A.

103. Next, Appellants contend that the Area A parking garage fails to

comply with section 30 - 4.15.C. , which requires certain design f eatures when

located on a public street. Arguably, the parking structure in Area A also

fronts Northwest 6th Avenue as wel l, but this is an undeveloped part of that

street, and it is unclear if it is a " public street. " Regardless, the parking

structure in Area A is located on at least one public street : Northwest 5 th

Avenue.

104. The City determined that both parking structu res have the required

window and façade designs that are scaled to relate to the surrounding area.

Moreover, the parking structure in Area A is wrapped with residential units ,

and thus complies with the requisite screening requirements. It cannot be

said t hat this decision was clearly erroneous, patently unreasonable, or not

based in reason.

105. Appellants next contend that the parking structure located in Area A

is within 100 feet from a " single - family zoning district, " the property across

Northwest 12 th Street that is zoned RSF - 4. However, the parking structure

in Area A is on the far west side of the property, more than 100 feet from the

area zoned RSF - 4. Moreover, as noted above, there are three buildings

between the parking structure in Building A and Northwest 12th Street.

Because, as explained above, there are multiple buildings in Area A, the

parking structure in Area A does not violate section 30 - 4.15.C.

106. Appellants also contend that the Development Decision does not

provide for any decorative screening walls, perimeter landscaping, or window

and façade design compatible with or scaled to relate to the surrounding area

as described in section 30 - 4.15 . C.

107. As stated above, the City has designated Northwest 5th Avenue as a

" Storefront Street. " Thus, section 30 - 4.15.C.1. is applicable to the parking

structures located along Northwest 5th Avenue. The depictions in the

Development Decision indicate that the parking structures will have the

required liner building , thus complying with this section o f the LDC.

108. The parking structure in Area A that fronts Northwest 6th Avenue

must comply with section 30 - 4.15.C.3., which requires a liner building,

ground floor commercial, office space, or decorative screening walls. The

portion of the parking struct ure in Area A that is not co ncealed behind a liner

building has a decorative screening wall made up of brick veneer with

openings made to look like windows. Thus, the parking garage in Building A complies with the requirements of section 30 - 4.15.C.3.

1 09 . With the modification of remov ing the Northwest 6 th Avenue

vehicular access entrance for the parking structure in Area A, i t cannot be

said that the City ' s decisions regarding the parking structures were clearly

erroneous, patently unreasonable, or not fo unded in reason. Nor can it be

said that the development of these parking structures as part of the project

will result in a miscarriage of justice or an ultra vires act.

C ONCLUSION OF L AW

110 . The parties do not dispute, and the record supports, standing to

appeal for all Appellants. 13

Burden of Proof

111 . Appellants challenging the administrative decision are tasked with

the burden of proving that the City approved a development plan application

in violation of the applicable administrative review criteri a in section 30 - 3.46

of the LDC.

112 . Section 30 - 3.46 of the City ' s LDC provides that an application may be

approved if the " proposed development is consistent with the Comprehensive

Plan and complies with the Comprehensive Plan, the Land Development

Code , and other applicable regulations. "

113 . Based on the above Findings of Fact, TWP ' s development plan

application is consistent with the City ' s Comprehensive Plan and complies

with the City ' s Comprehensive Plan and LDC, except with regard to Building

B2; t he entrance s to the three buildings in Area A that are within 100 feet of

13 Section 30 - 3.57 of the City's LDC governs stand ing 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 parti cular project or parcel of real property:

* * *

c. All owners of real property that lies 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 d emonstrates a direct adverse

impact from the decision that exceeds in degree the general

interest in community good shared by all persons.

the RSF - 4 Zoning District ; and the vehicular access to the parking structure

in Area A on Northwest 6th Avenue.

114 . Except as indicated above, Appellants did not carry their burden to

show that the City - approved Development Decision is in violation of section

30 - 3.46 of the LDC.

D ETERMINATION

Based on the foregoing Findings of Fact, the City ' s administrative decision

approving the project in the Development Decision, is approved, wi th the

following modifications and partial reversal :

A. Tramell Webb Partners , Inc. , shall update the architectural sheet and

resubmit it to the City of Gainesville for approval for Area A so that it reflects

that each individual building located within 10 0 feet of the RSF - 4 Zoning

District across Northwest 12 th Street depicts an entrance in compliance with

the Gainesville Land Development Code.

B. Tramell Webb Partners , Inc. , shall update the architectural sheet

which incorrectly depicts a vehicular access into the parking garage in

Building A from Northwest 6 th Avenue , to remove that vehicular access .

C. The approval for Building B2 is reversed without prejudice. Tramell

Webb Partners , Inc. , may submit amended plans for Building B2 to the City

of Gainesvil le for review for compliance with the Gainesville Land

Development Code , Comprehensive Plan, and other applicable regulations .

D ONE A ND O RDERED this 29th day of December , 2020 , in Tallahassee,

Leon County, Florida.

H ETAL D ESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 29th day of December , 2020 .

C OPIES F URNISHED :

David A. Theriaque, Esquire

Theriaque and Spain

433 North Magnolia Drive

Tallahassee, Florida 32308 - 5083

(eServed)

Kali Blount

Apartment 4

605 Southeast 2nd Place

Gainesville, Flori da 32601

Carrie Johnson

705 Northwest 10th Street

Gainesville, Florida 32601

Sean M. McDermott, Esquire

City of Gainesville, Office of the City Attorney

Suite 425

200 East University Avenue

Gainesville, Florida 32601

(eServed)

NKwanda Jah

321 Northwe st 10th Street

Gainesville, Florida 32601

Joel Parker

Jennifer Parker

1202 Northwest 4th Avenue

Gainesville, Florida 32601

Terrell K. Arline, Esquire

Terrell K. Arline, Attorney at Law

1819 Tamiami Drive

Tallahassee, Florida 32301

(eServed)

S. Brent Spain, Esquire

Theriaque and Spain

433 North Magnolia Drive

Tallahassee, Florida 32308

(eServed)

Benjamin R. Kelley, Esquire

Theriaque and Spain

433 North Magnolia Drive

Tallahassee, Florida 32308

(eServed)

Daniel M. Nee, Esquire

City of Gainesville

Of fice of the City Attorney

MS 46

Post Office Box 490

Gainesville, Florida 32627

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Pursuant to section 30 - 3.57 of the City of Gainesville Land Development

Code, this decision shall be final, and may be subject t o judicial review as

provided by ordinance.