IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA LOUIS R. DOYLE, et. al., Plaintiffs, vs. Case No.: 2013 CA 006511 NC CITY OF SARASOTA, Defendant. CITY OF MOTION TO DISMISS FOR LACK OF JURISDICTION Defendant, CITY OF SARASOTA by and through its undersigned counsel, moves to dismiss the Complaint for Declaratory Action (the "Complaint") filed by Plaintiffs LOUIS R. DOYLE and DIANA DOYLE, his wife, individually and as Trustees of the Doyle Family Trust, and THERESA DUNN and MARY ANNE C. HERRILL, as Co-Trustees of the Survivors' Trust created under the Richard and Eleanor Dunn Family Trust ("Plaintiffs") and states as follows: Factual Bacgground 1. Wal--Mart Stores East, L.P. ("Wal-Mart") filed Site Plan Application to allow construction of a 98,000 sq/ft store with off--street parking on a 9.73 acre property owned by Plaintiffs located at 2260 Ringling Boulevard. The Planning Board of the City of Sarasota, acting in its capacity as the Local Planning Agency, approved Application No. 12-SP--12 ("Site Plan") at the conclusion of a duly noticed public hearing held on November 14, 2012. 2. Certain property owners, living in the vicinity of the proposed project ("Neighborhood appellants"), timely filed Appeal Application No. 13-APP--02 ("Site Plan Appeal") with the Office of the City Auditor and Clerk in order to appeal the Planning Board's approval of the Wal--Mart Site Plan to the City Commission. The City Commission, during a regularly scheduled meeting held on January 7, 2013, determined to hold a de novo public hearing to review the Wal--Mart Site Plan as requested by the Site Plan Appeal brought by the Neighborhood appellants. 3. The City Commission held a duly noticed public hearing on the Wal--Mart Site Plan Appeal on February 19, 2013, with such hearing being continued to February 26, 2013. At the conclusion of the February 26, 2013, public hearing the City Commission voted to deny the Wal--Mart Site Plan, after hearing all evidence and arguments presented. The City rendered Resolution 13R-2337 on March 25, 2013, citing the basis for the denial as required by ?166.033, Florida Statutes. 4. On April 24, 2013, Plaintiffs filed a Petition for Certiorari with this Court, pursuant to Fla. R. App. P. 9.100(0) seeking review of the City Commission's denial of the Wal~Mart Site Plan ("Petition for Certiorari"). Such Petition for Certiorari is currently active and filed as Case No. 2013 CA 3456 NC in this Couit; a true and correct copy of such Petition for Ceitiorari is attached hereto as Exhibit (exhibits and appendices to the Petition have intentionally been omitted). 5. On June 24, 2013, the City filed its Response to the Petition for Certiorari with this Court. 6. On September 18, 2013, Plaintiffs filed their Reply to the City's Response to Petition for Certiorari. 7. A final hearing and oral argument on the Petition for Certiorari action is currently scheduled for October 16, 2013. 8. On August 30, 2013, Plaintiffs filed this Complaint for Declaratory Judgment against the City pursuant to Chapter 86, Florida Statutes ("Complaint"). The Court lacks iurisdiction under Florida law 9. Declaratory Judgment actions are brought under Chapter 86, Florida Statutes. The purpose of declaratory judgments is to afford parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Sig Rosa County v. Administration Com'n. Div. of Administrative Hearing, 661 So.2d 1190 (1995). 10. Unlike other causes of action, usually the existence of another adequate remedy does not preclude a Plaintiff from bringing a Declaratory Judgment action. Fla. Stat., ?86.l 11 ("The existence of another adequate remedy does not preclude a judgment for declaratory relief . . . 11. However, Florida case law has established circumstances where the "another adequate remedy does not preclude" provision of ?86.11l is not applicable, and where the bringing of a Declaratory Judgment action is not appropriate or allowed jurisdictionally. 12. The present scenario, whereby Plaintiffs have already filed a Petition for Certiorari to appeal the quasi-judicial zoning decision of a local government body with this Court and now bring a Declaratory Judgment action on the same set of facts and issues in the same Court, is a scenario construed by Florida case law as being one where a Declaratory Judgment is not allowed. Teston V. Citviof Tampa, 143 So.2d 473 (1962); Fox v. State, Bd. of Osteopathic Medical Examiners, 395 So.2d 192 (1st DCA 1981); Dabbs v. City of Tampa, 613 So.2d 1378 DCA 1993). 13. The facts and arguments asserted by Plaintiffs in this Complaint Paragraphs 11-60), are the same as alleged in their Petition for Certiorari (s_e_e pages 4- 39). This Complaint raises the same legal issues raised in the Petition for Certiorari, namely that the City Commission shouldn't have allowed the Neighborhood Appellants to appeal the Planning Board decision, that the City Commission didn't correctly follow the law in construing the Zoning Code, that the evidence relied on by the City Commission in reaching its decision was insufficient or deficient, that the Plaintiffs' due process rights were violated by the process by which the City denied the Site Plan approval, and that the decision of the City Commission was "arbitrary and capricious" (and therefore not supported by competent, substantial evidence). (E paragraphs 59Complaint, "Conclusion" pg. 39-40, Petition for Ceitiorari). 14. The prayer for relief of this Complaint similarly to the Petition (pages, 1, 39- 40), requests this Court to simply overturn the quasi-judicial decision of the City Commission, find that Resolution 13R--2337 is invalid, and reinstate the approval of the Wal-Mart Site Plan by the Planning Board. 15. Any due process or "constitutional" issues purported to be alleged in this Complaint have already been raised in the Petition for Certiorari, and the objective of this Complaint appears to be, as in the Petition for Certiorari, simply the quashing of Resolution 13R-2337 and the reinstating of the Wal-Mart Site Plan. Since this Complaint seeks the review of the City's quasi--judicial decision, the proper and appropriate appellate avenue is a Petition for Certiorari, not declaratory relief. pm, at 1379-1380; City of St. Pete Beach v. Sowa, 4 So.3d 1245, 1247 DCA 2009). 16. In this context the declaratory judgment remedy should be resorted to only in the type of extraordinary cases Where the government error is so egregious or devastating that the default administrative remedy is inadequate. School Bd. of Leon County v. Mitchell, 346 So.2d 562, 568 (1st DCA 1977). 17. When the Petition for Certiorari filed is an adequate venue to address the issues raised, a Declaratory Judgment action is not proper or necessary. Couch v. State, 377 So.2d 32, 33-34 (1st DCA 1979). Conclusion 18. This Complaint for Declaratory Judgment is a duplicative, unnecessary action by Plaintiffs given their previously filed and active Petition for Certiorari. A Declaratory Judgment action is not allowed under Florida law when an appellant has already filed a Petition for Certiorari on the same set of facts and requested the same relief. When the Petition for Certiorari is an adequate venue to address the issues raised, as it is here, a Declaratory Judgment action is not proper or necessary. 5 WHEREFORE, Defendant City of Sarasota requests that this Court enter an Order Dismissing the Complaint for lack of jurisdiction and for any and all further relief this Court deems necessary. [3 Robert M. ournier, Esq. Florida Bar No. 262730 John K. Shamsey, Esq. Florida Bar No. 583383 FOURNIER, CONNOLLY, WARREN SHAMSEY, P.A. 1 South School Avenue, Ste. 700 Sarasota, Florida 34237 (941) 906-1199 Telephone (941) 906-1890 Facsimile Counsel for Defendant, City of Sarasota CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing has been sent Via electronic mail to John P. Harllee, Harllee Bald, P.A., 202 Old Main Street, Bradenton, Florida 34205, at and blt@harlleebald.co1n this day of October, 2013. Robert M. Fournier, Esq. IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA LOUIS R. DOYLE and DIANA C. DOYLE, his wife, individually and as Trustees of the Doyle Family Trust, and THERESA DUNN and MARYANNE C. HERRILL, as Co--Trustees of the Survivors' Trust created under the Richard CASE NO. 2013 CA and Eleanor Dunn Family Trust, (This Petition is filed under Fla. Petitioners, R. App. P. 9.lO0(f) and requires special processing by the Clerk) v. CITY OF SARASOTA, a municipal corporation of the State of Florida, Respondent. PETITION FOR WRIT OF CERTIORARI The Owners, LOUIS R. DOYLE and DIANA C. DOYLE, his wife, individually and as Trustees of the Doyle Family Trust, and THERESA DUNN and MARYANNE C. HERRILL, as Co-Trustees of the Survivors' Trust created under the Richard and Eleanor Dunn Family Trust, ("Owners") hereby file this Petition for Writ of Certiorari ("Petition") requesting that this Court enter a Writ of Certiorari quashing Resolution No. l3R--2337 issued by Respondent, CITY OF SARASOTA, a municipal corporation of the State of Florida which reversed the City's Planning Board decision and denied Site Plan Application No. 12-SP--12. Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Cler trcuio Sstunty, FL 2013 CA 003456 NC Dkt--79427372 Page 1 of 43 In support, Owners state: NATURE OF ACTION This action seeks the issuance of a writ of common law certiorari pursuant to Fla. R. App. P. 9.100(0) Owners request that the Court judicially review, in its appellate capacity, the final and quasi-judicial administrative actions of City adopting Resolution No. 13R--2337 ("Resolution"). (App. 1-6). The Resolution was rendered on March 25, 2013, when the City Clerk filed a signed copy of the Resolution. This Petition was filed within 30 days of the rendition of the Resolution and is timely filed pursuant to Fla. R. App. P. APPENDIX AND CITATIONS. T0 APPENDIX The Appendix supporting the Petition, including portions of the record before the City Commission, is filed simultaneously with this Petition pursuant to Fla. R. App. P. 9.220. For convenience of reference, the individual documents and materials in the Appendix are numbered in sequential order "Bates Stamped"). Citations to the Appendix shall be in the following form: (App. The transcripts of the proceedings before the City Commission are included within the Appendix, and references thereto will be to the numbered transcript pages as follows: (T 1 Although the transcripts represent hearings held on two separate dates, February 19 and 26, 2013, the pages have been numbered consecutively. The transcript for the hearing before the City's Planning Board on November 14, 2012 is included in 2 Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FE. -- 2013 CA 003456 N0 Dkt--79427372 Page 2 of 43 OF THE COURT The Owners challenge the Resolution adopted by the City Commission after several quasi-judicial hearings and is therefore properly reviewable by certiorari. Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993). See also, Park of Commerce Associates v. City of Delray Beach, 636 So. 2d 12 (Fla. 1994) (decisions of local governments denying a site plan are quasi-judicial and are subject to certiorari review by the courts). Further, such review "is a matter of right and is akin in many respects to a plenary appeal." Broward County v. G. B. V. International, Ltd., 787 So. 2d 838, 843 (Fla. 2001). This Court has original jurisdiction over the action pursuant to Fla. R. App. P. 9.030 and 9.100; and Art. V, Fla. Const. The property subject to the Resolution is owned by Owners and is located in the City. Therefore, venue is proper pursuant to 47.011, Fla. Stat. SCOPE AND STANDARD OF REVIEW AND GOVERNING LAW In this "first-tier" certiorari review, the Court acts in its appellate capacity. The review is confined to the record made in the proceedings before the City for the Court to determine (1) whether the City Commission provided procedural due process; (2) whether the City Commission followed the essential requirements of law; and (3) whether the City Co1nmission's findings and decision are supported the Appendix at Pages 17-153 because it was accepted into the record at the February 19, 2013 hearing before the City Commission. 3 Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing. Cierk of the Circuit Court - Sarasota County. FL - 2013 CA 003456 NC Dkt-79427372 Page 3 of 43 by competent, substantial evidence in the record. Id. at 843; and Town of Longboat Key v. Islarzdside Property Owners Coalition, LLC, 95 So. 3d 1037, 1039 (Fla. 2d DCA 2012). Furthermore, for there to be an effective review, the City Cornmission's denial of the Site Plan Application is subject to close judicial scrutiny. Board of County Commissioners of Brevard County v. Snyder, supra, at . 475. The first two prongs are self--evident, and the Florida Supreme Court has explained that "competent substantial evidence" under the third prong is evidence which is tantamount to legally sufficient evidence. Florida Power Light V. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). STATEMENT OF FACTS UPON WHICH OWNERS RELY A. Introduction (Parties and Standing) The Owners here are owners of the Property subject to the Resolution and have standing to bring this action as aggrieved parties because the Resolution reversed the City's Planning Board decision and denied Site Plan Application No. for the Property. (App. 492; 243-244). The authorized applicant to file the Site Plan Application and pursue the Application's approval was Wal--Mart Stores East, L.P. City is the proper Respondent pursuant to Fla. R. App. P. 9.100. Filed for Record 04/24/2013 10:43 AM -- Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County, FL - 2013 CA 003456 NC Dkt-79427372 Page 4 of 43 (Summary of the Property, Zoning, Site Plan, and the Denial) The Property is located at 2260 Ringling Boulevard, Sarasota, and comprises approximately 9.73 acres. The commercial portion is improved with shopping center of approximately 97,779 square feet. (T 30). A Publix store was the anchor tenant at the existing shopping center for many years. There was no request for a Comprehensive Plan amendment or a rezoning. The sole request was for a Site Plan Approval. The Property is zoned commercial shopping center neighborhood (CSC-N), except for a small strip on the eastern boundary which is zoned residential single~family~three (RSF-3). The CSC-N area is 8.59 acres. (App. 53; 79, 97, 130-131). Section VI--501 of the City's Zoning Code states "[T]he intent and purpose of CSC-N districts is to provide for the development of planned commercial facilities on large tracts of land." Further, "there shall be no further rezonings to the CSC-N zone districts. The standards contained in this district shall only be applied only to those zoning lots which are currently zoned Thus, the CSC-N zone district is not an active implementing district and the Property is allowed to retain its zoning and redevelop under the standards of zoning code for a CSC-N zone district. The CSC-N district is known as a zoning enclave. (T 96-99; App. 493-502). Filed for Record 04f24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County. FL - 2013 CA 003456 NC Dkt-79427372 Page 5 of 43 The Sarasota City Plan -- Future Land Use Plan provides for zoning enclaves such as the CSC-N zone district. Action Strategy 1.3 of the Future Land Use Plan provides: 1.3 Consistency with the Future Land Use Map: Zoning Enclaves contain parcels that are zoned in a manner that is not currently compatible with the future uses envisioned by the land use classification within which they are located. Unless and until rezoning occurs (see Action Strategy 1.5 below), development within zoning enclaves shall be permitted in accordance with the zone district regulations and all other relevant regulations applicable to the enclave. All development of a parcel that is in conformity with the zone district regulations applicable to that parcel, whether it is within a zoning enclave or not, shall be considered to be consistent with the Future Land Use Map of the Future Land Use Plan. (emphasis added) (See also, 6, 88, 98-101; App. 493-502). The proposal pursuant to the Site Plan would demolish the present shopping center and replace it with a new 98,000 square foot building for occupancy by Wal-Mart together with amenities and other improvements to the Property. The eastern strip zoned RSF -3 along Lime Avenue would be left as a greenbelt buffer to the project. (T 27, 30-37). The proposed store would be limited to grocery general merchandise and pharmacy (App. 354). This is not a Wal-Mart Supercenter which typically has over 180,000 -- 200,000 square feet. (App. 24-25). Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County, FL 2013 CA 003456 NC Dlct-"IQ427372 Page 6 of 43 Prior to filing the Site Plan Application, Wal-Mart held neighborhood meetings, including one where all residents within 500 feet of the project were invited. In addition, there were meetings with City staff. (App. 494-495; 19-20). The Site Plan Application was submitted August 27, 2012 (App. 506-513). After review of the Application, the City's Department of Neighborhood and Development Services') recommended approval and provided a written analysis stating why the Site Plan was consistent with City's Comprehensive Plan and the current zoning. (App. 492-505). There was a quasi-judicial hearing before the City's Planning Board on November 14, 2012. The Application was supported by Wal-Mart's presentations and the City's Department of Neighborhood and Development Services. (App. l9-75). Upon conclusion of the proceedings, the Planning Board found the site plan consistent with the applicable land use regulations and approved the application subject to two conditions. (App. 7; 121-122 132). Thereafter, a de novo quasi--judicial review by the City Commission was requested by six persons. Such a review is termed an "appeal" by the City and the persons requesting the review are referred to as "Appellants." Wal-Mart unsuccessfully objected to the review several times. (App. 301, 360- 369; 17-18). 2 This Department is comprised of several Divisions, one of which is the Planning, Development and Zoning Division. Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 003456 NC Dkt-79427372 Page 7 of 43 The City Commission held the de novo quasi-judicial hearings on February 19 and 26, 2013 at which evidence was received, including the record before the Planning Board and supporting presentations by Wal--Mart and the City's Director of Neighborhood and Development Services and the General Manager of Planning and Development. At the conclusion of the hearing on February 26, 2013, the City Commission, by a vote of 3-2, approved a motion to deny the Site Plan Application. The motion stated no specific reasons and the City Attorney was tasked with preparing the Resolution which was rendered on March 25, 2013. B. Review by City Commission The process before the City Commission commenced with an e-mail from the City's former Mayor and Commissioner, Kelly to the City Attorney and the City's Director of Neighborhood and Development Services. Among other things, Mr. requested advice about filing a Notice of Appeal. He was provided the information, including advice that an appeal must be filed no later than November 26, 2012. On Sunday, November 25, 2012, Mr. e- mailed the City Attorney and City Auditor and Clerk advising that he and others "are formally lodging our NOTICE OF APPEAL of the Planning Board's approval." Mr. e-mail gave no reason for the "appeal" and did not explain how the purported "Appellants" were aggrieved persons under Section 201 ofthe City Code. (App. 178-181). Fiied for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 003456 NC Di-tt-79427372 Page 8 of 43 On Monday, November 26, 2012, the City Attorney advised Mr. that his notice of appeal was deemed timely filed and, in addition, representatives of Wal~Mart were immediately advised of Mr. efforts. (App. 178). In order for the "appeal" to be heard by the City Commission, the application for review needed to be approved by a super majority of the City Commissioners. There was a regular City Commission meeting on December 3, 2012, and there was nothing on the published agenda regarding the "appeal" by Mr. (App. 184-191). Without notice to Wal--Mart or the Owners, nine people, including two persons attempting to "appeal," Juanita Rawlinson and Jerry Sparkman, were permitted to speak in favor of the "appeal" and to make substantive statements about the merits, albeit abbreviated. (App. 202--203). Also on December 3, 2012, counsel for Wal--Mart wrote the City Attorney, via e--mail transmission, requesting that the "appeal" be dismissed for three reasons. First, the "appeal" was not properly filed because the November 25, 2012 e--mail from Mr. did not satisfy the requirements of a letter in the City Code and there Was no provision in the Code for electronic filing; second, the filing fee was not paid; and third, Mr. and the other persons listed in his OF were not aggrieved persons as defined by Section II-201 of the City Code and quoted the definition of aggrieved persons: Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County, FL - 2013 CA 003456 NC D|d--79-427372 Page 9 of 43 Any person or entity which will suffer to a greater degree than the general public an adverse affect to a legally recognized interest protected or furthered by the land development regulations or the Comprehensive Plan. (App. 360-369). On December 4, 2012, which was the day after the written objection by Wal- Mart's counsel, an "appeal" form provided by the City was received by the City Auditor and Clerk together with the payment of $1,597.00. This form was signed by Candace D. Spalding, recognized in the Resolution as one of the appealing parties. (App. 213-216). Thereafter, on December 8, 9, and 10, 2012, identical e- mails were sent to the City Auditor and Clerk and City Attorney by Kelly Candy Spalding, Pat Kolodgy, Juanita Rawlinson, Marian Maxson Martin, and Jerry Sparkman. The e--mai1s read: This email is to confirm that I am appealing the November 14, 2012 decision of the Planning Board to approve the site plan for a new Wal-Mart at 2260 Ringling Blvd. (App. 217-222). The request for the City Commission to hold a de novo quasi-judicial hearing was scheduled for consideration at the City Commission meeting on January 7, 2013. (App. 275-283). "Appellants" provided the City's Mayor, Vice Mayor, and Commissioners with an ex paite memo dated December 28, 2012 prior to the hearing. (App. 223-274). The memo not only requested approval of the appeal, but contained a discussion as to why the Site Plan Application should be 10 Filed for Record 04/24/2013 10:43 AM Karen E. Rushing. Clerk of the Circuit Court Sarasota County. FL - 2013 CA 003456 NC Dkt~79427372 Page 10 of 43 denied and attached a report prepared by a retired City employee, Mike Taylor. Mr. Taylor subsequently admitted at the February 19, 2013 hearing that significant portions of his report, including the contention that a retail structure was not permitted on the Property, Were erroneous. (T 179-181). At the January 7, 2013 meeting, the City Attorney advised the Commission that, in addition to deciding whether or not to hold a de novo quasi--judicial hearing, the Commission would also have to make a decision as to whether or not the appealing parties were aggrieved parties. The City first voted to hear the appeal, despite the objections by Wal~Mart and an owner. (App. 299-302, 355, 360--369; 429-430). The Commission then separately considered whether or not the appealing parties were aggrieved persons within the meaning of the City's code. There was a presentation by Attorney Robert Turffs, who said he was representing the Alta Vista Neighborhood, which is not an appealing party. "Appellants," Sparkrnan and Martin, spoke but never explained why they were aggrieved parties; that is, how each will suffer to a greater degree than the general public an adverse affect by approval of the Site Plan Application. There was no presentation by "Appellants" Candy Spalding, Pat Kolodgy, and Juanita Rawlinson. Nevertheless, the City Commission Voted that all six named appealing parties in the ex parte "December 28, 2012 letter" were aggrieved persons. (App. 299-302). There were no other findings stated. 11 Filed for Record 04/24/2013 10:43 AM Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 003456 NC Dki--79427372 Page 11 of 43 The City noticed the de novo quasi-judicial review for February 19, 2013. (App. 305-314). The City requires persons who desire to speak to file a Request For Affected Person Status. Affected persons must be located within 500 feet of the Property. (See, Exhibit hereto). In preparation for the public hearing, the offices of the City Attorney and City Auditor and Clerk verified the Requests and prepared a matrix. (App. 315-317). This matrix discloses that only "Appellant" Jerry Sparkman is within 500 feet of the Property by virtue of his office address at 2168 Main Street, Sarasota. In addition, introduced a map at the hearing which designates the project site and the location of the addresses for the "Appellants," including two residences owned by Mr. Sparkman. (App. 318). This map reflects the City's matrix and shows that none of the "Appellants" reside within 500 feet of the Property. (Summary of Hearing) At the portion of the public hearing conducted on February 19, 2013, there Was testimony and documentary evidence presented by Wal--Mart, (ii) the City's Director of Neighborhood and Development Services and the City's General Manager of Planning and Development, and the "Appellants." The witnesses testified under oath and were subject to cross-examination. The only matters presented to the City Commission which were supposed to be considered evidence 12 Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL 2013 CA 003456 NC Page 12 of 43 were the testimony and documents by Wal--Mart, the City, and the appealing parties. (T 213-215). At the continuation of the hearing on February 26, 2013, the Commission received comments from "affected" parties a.nd the general public, including comments by one of the Owners, Louis R. Doyle. There was also rebuttal by the City's Department of Neighborhood and Development Services, the "Appellants," and Wal-Mart. (Hearing) At the commencement of the public hearing on February 19, 2013, counsel for Wal--Mart renewed the objections made at the City Commission meeting on January 7, 2013 and requested dismissal. (App. 299-302, 355, 360-369; 17-18). No motion was made and evidence was then presented. Wal-Mait's presentation was made through three expert witnesses. Susan M. Finch, who is certified by the American Institute of Certified Planners as a Land Use Planner with approximately 24 years experience, including employment by Hillsborough County, Florida from 1989 to 2005. (App. 372-3 73; 20). Joshua A. Bryant, a Florida Licensed Professional Engineer who graduated from the University of Florida with civil engineering degrees (B.S. and M.E.). Mr. Bryant is with CPH Engineers, Sarasota (App. 370; 30). Michael Blinn of BBR 13 Filed for Record 10:43 AM - Karen E. Rushing. Clerk of the Circuit Court Sarasota County, FL -- 2013 CA 003456 NC Dkt--79427372 Page 13 of 43 Architecture, Atlanta. Mr. Blinn holds a Bachelor's Degree in Architecture and is a Florida Registered Architect. (App. 371; 38). Ms. Finch's presentation to the Planning Board, including her Written analysis, demonstrated that the proposed Site Plan was compatible with the City's Comprehensive Plan and zoning code and were made part of the record before the Commission. (App. 47-51, 340-343). Therefore, at the hearing Ms. Finch 773 primarily presented evidence which established errors in "Appellants core contention that the proposed Wal-Mart store is not a permitted in the CSC-N zoning district because it is a department store. Ms. Finch explained the difference between permitted use and structure type in the zoning code. She also said the "Large Store" structure type, such as the proposal by Wal--Mart, is authorized by the zoning code which defines "Large Store" as retail establishment, or any combination of retail establishments in a single building, occupying more than Twenty--five thousand (25,000) gross square feet of floor area." Next, she addressed the uses -- grocery, general merchandise, and pharmacy -- all of which are permitted uses under the "use section" of the zoning code. In summary, Ms. Finch said that the Wal--Mart Site Plan was consistent with the City's site plan review criteria and the proposed use is consistent with the zoning code. (App. 47- 51, 165-168; 20-28, 63-75). 14 Filed for Record 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court Sarasota County, FL - 2013 CA 003456 NC Dki-79427372 Page 14 of 43 In his presentation in support of the Site Plan, engineer Joshua Bryant described the physical characteristics of the proposed plan, including the building site, setbacks, parking, area for deliveries, storm water management, sidewalks, pedestrian access, and other amenities and explained specifically how the proposed development complied with the City Code. (T 28-37). On cross-examination, Attorney Turffs tried to make the point that there was an existing pathway which provided access to Payne Park. Mr. Bryant explained such a pathway did not exist and, furthermore, railroad property and tracks separate the Property from Payne Park. (T 56-63). Next, the architect, Michael Blinn, described how the proposed building was based on the City's codes and is a "nonprototypical design" for a Wal--Mart store. He described the urban design flavor architecture, spaces created for the public, lighting, materials and finishes for the interior and exterior of the building, and the conservation elements structure planned for the store. (T 42--5 6). The City also made a presentation in support of the Site Plan Application. The City's presentation was made by Tim Litchet, Director of the Department of Neighborhood and Development Services, and Gretchen Schneider, General Manager of Planning and Development, Department of Neighborhood and Development Services. Mr. Litchet has a law degree from the University of Kansas and has been licensed to practice law in Florida since 1984. He has 25 15 Filed for Record 04l24l20'i3 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County, FL 2013 CA 003456 NC Dkt-79427372 Page 15 of 43 years experience in administering and interpreting the City's codes. Ms. Schneider holds a Master Degree in Urban and Regional Planning from Virginia Commonwealth University. She has more than 20 years work experience in the planning field. Mr. Litchet's presentation addressed certain issues raised by the appealing parties, explained why the proposed Site Plan met the City's codes, and also generally addressed inconsistencies in the zoning code and the need to construe the provisions in reference to each other. Ms. Schneider addressed the compatibility of the proposed Site Plan and project with the City's Comprehensive Plan and Code. Mr. Litchet submitted a written report as a back up to the oral presentations. This report contained comments by Mr. Litchet and sections from the zoning code, excerpts of minutes from the Planning Board meeting, photographs, and an analysis prepared by Ms. Schneider explaining why the proposed project was compatible with the City's Comprehensive Plan. (App. 377-424). (T 75-77). Also presented was the staff analysis and report to the Planning Board. (App. 493-502). Mr. Litchet commenced his presentation observing that the zoning code authorized the Department's Director to interpret and enforce the code3 and referenced the appealing parties' ex parte memo and report. He said "[T]he process has allowed the Appellant the opportunity to circulate their critique of 3 The reports by the appealing parties agree this authorization is conferred upon Mr. Litchet. (App. 229 #14, 431 #14) 16 Filed for Record 04124/2013 10:43 AM -- Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL 2013 CA 003456 NC Dkt-79427372 Page 16 of 43 the city staff report to you and the press in advance to get the appeal heard and this is the staff' first opportunity to respond [to the] many inaccuracies and omissions in the report that need to be addressed." He then generally mentioned that the zoning regulations were aging and had inconsistencies and discussed the principles of statutory construction. (T 78-79). In explaining why the Site Plan Application complied with the CSC-N zoning district, Mr. Litchet reviewed the presentation before the City's Planning Board by the Depa1'trnent's Senior Planner, Courtney Mendez, who holds a Masters Degree in City and Regional Planning from Clemson University and a AICP certification. (T 79; App. 52-76). Ms. Mendez addressed compatibility with the City's Comprehensive Plan and the current zoning, including the fact that a "large store" such as the one planned pursuant to the Site Plan Application and Wal~Mart's uses grocery, general merchandise, and pharmacy -- are authorized in the zoning district. Also included in Ms. Mendez' presentation were comments by the City Police during the Department Review Committee process regarding a cut--th1'ough to Payne Park. The police had safety concerns because there was no approved pedestrian crossing of the railroad property and tracks and pedestrians would be routed behind the building near the loading and unloading area of the store. (App. 59). Also during his presentation, Mr. Litchet referred to the specific provisions of the zoning code supporting the Department's recommendation for approval of 17 Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court -- Sarasota County, FL - 2013 CA 003456 NC Dkt-79427372 Page 17 of 43 the Site Plan Application. He pointed to the permitted uses for a CSC--N zoning district found in Table VI-501-A of the Zoning Code and the retail structure types authorized in Section 11-201 which includes a "Large Store." The same conclusion explained by Ms. Finch. Mr. Litchet specifically addressed the report by the former City employee, Mike Taylor, submitted by the appealing parties. He commented that zoning codes are meant to be read and applied in a logical manner and sections should not lifted out of context as was done by Mr. Taylor. He added that if Mr. Taylor's flawed analysis in his report was followed to conclusion, shopping centers or malls would not be permitted in the City's commercial shopping center zoning districts. Mr. Litchet also explained how at least two key findings in the report were erroneous. The first was the finding and statement that the current structure is a non- conforming use and, second, that the CSC-N zoning district prohibits retail structure types. Mr. Litchet testified the appealing parties' contention that the proposed Wal- Mart store is prohibited because it is a department store was erroneous. He referred to comments about this issue made by Planning Board member, Chris Gallagher, who said the appealing parties were stretching the code because a department store envisions a typical type retailer such as a Macy's, and nothing would be sold at the Wal~Mart store that has not been sold for many decades at the 18 Fiteci for Record 04/24/2013 10:43 AM -- Karen E. Rushing. Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 003456 NC Dld-79427372 Page 18 of 43 Property. Mr. Litchet also pointed out that Mike Taylor never raised any issue about the Site Plan Application prior to retiring from the City's Department of Neighborhood and Development Services. (T 75-95). During cross~examination, Mr. Litchet reiterated the distinctions in CSC-N zone district "uses" and "structure types." He said the allowed uses can fit within structure type as long as the structure meets all the zone district standards such as setbacks, lot coverages, heights, etc. (T 118-123). W. Litchet reiterated there are gaps in areas of the Code which require a certain amount of interpretation. (T 124- 125). The documentary evidence submitted by Mr. Litchet contained a report prepared by Ms. Schneider. (App. 418424). In the report, Ms. Schneider confirmed that all of the City's criteria for reviewing a Site Plan Application had been met and concluded her report as follows: The project meets the comprehensive plan as an enclave per Action Strategy 1.3, the zoning code standards and the compatability standards by the enhancements (enhanced setbacks, architectural elements, enhanced buffers, enhanced screening, enhanced pedestrian connections) and reductions offered (a reduction in height, and intensity), therefore staff feels the criteria in the code for approval of a site plan has been made and approval is recommended. The Planning Board also approved the site plan on a vote of 3-2, finding that the site plan met standards of consistency. (App. 424). 19 Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 003456 NC Dki-79427372 Page 19 of 43 Ms. Schneider's testimony explained that the replacement of the existing Shopping center with the new 98,000 square foot store is compatible with the City's Comprehensive Plan. She pointed out that the CSC-N zoning district is what is termed a "zoning enclave" and that Action Strategy 1.3 of the City's Comprehensive Plan states: Unless and until rezoning occurs, development within zoning enclave shall be permitted in accordance with the zone district regulations and all other regulations applicable to the enclave All development of the parcel that is in conformity with the zone district regulations applicable to that parcel, whether it is within the zoning enclave or not, shall be considered to be consistent with the future land use map of the future land use plan. Ms. Schneider said that the Property is zoned CSC-N and is a "zoning enclave." Further, so long as the development meets the zone district's standards, it will be considered consistent with the Comprehensive Plan. She also said "we have reviewed the site plan, and it meets the District's development standards, as well as other development standards found in the zoning code and the EDCM. All those standards do include landscaping, parking requirements, storm water, access issues, site lighting, building height." In addition, the Site Plan "does allow for traffic circulation throughout the site, using the historic access to the property in a way to be able to shield the loading and the trash facilities from public streets." 20 Filed for Record 04124/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL 2013 CA 003456 NC Dkt-79427372 Page 20 of 43 She also listed other reasons why the proposed site plan was compatible with the City's Comprehensive Plan. (T 95-109; App. 418-424). Ms. Schneider was questioned by Commissioner Snyder about the effect of lighting on residents next to the "green zone." She said there would be no lights in the buffer area and lighting within the project is authorized by the Code. (T 110- 111). When Commissioner Caragiulo requested some clarification, she said that the appealing parties' analysis ignored the controlling code provision and quoted: Development within zoning enclave shall be permitted in accordance with the zone district regulations and all other relevant regulations applicable to the enclave and added, "In other words, if you're zoned CSC--N, you can build to the CSC-N zone district standards" and the development is in conformity with the Comprehensive Plan. (T 111-113). The appealing parties' case was presented through two witnesses, Mr. Taylor, the City's former employee who prepared the appealing parties' report, and "Appellant," Jerry Sparkman. No other appealing party testified, including former Mayor and Commissioner, Kelly who was present. At one point, Mr. attempted to interject himself into the proceedings in an unexplained capacity but was ruled out of order. (T 52-54). However, he was permitted to make closing comments on behalf of the appealing parties when he was not under oath or subject to cross-examination. (T 366-3 72). 21 Filed for Record 04/24/2013 10:43 AM -- Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL -- 2013 CA 003456 NC Dkt-79427372 Page 21 of 43 Mr. Taylor was the appealing parties' first witness and he submitted a new 64 page report. (App. 533-597; 146). He commenced his presentation by admitting Mr. Litchet was correct in "pointing out a few things that were short in that original submittal" referring to the December, 2012 report. He said that he based his review on the Site Plan Application submitted on August 17, 2012 and the initial staff report dated October 30, 2012. (T 147). Mr. Taylor abandoned his contention that the existing structure is a non--conforming use. (T 149). He also commented that there were ambiguities or inconsistencies in the zoning codes. Most of Mr. Tay1or's testimony was the presentation about his experience and future uses rather than focusing on the current CSC-N zone district. However, he did contend that only two retail structure types were authorized - a hardware store with 30,000 square feet and a Variety store with 15,000 square feet. (T 156-157). This was a change from his earlier report which concluded no retail structures were authorized for the Property. Based on his new conclusions, Mr. Taylor said the new store planned by Wal--Mart exceeded maximum size by 83,000 square feet. (T 158). In response to a question by Commissioner Caragiulo, he said that multiple structures were authorized for the Property so long as the buildings do not exceed 15,000 square feet and meet the other standards such as setbacks, height, parking, etc. (T 164-166). 22 Filed for Record 04/24/2013 10:43 AM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2013 CA 003456 NC Dkt--79427372 Page 22 of 43 On cross-examination, Mr. Taylor reiterated his direct testimony that Tim Litchet was his mentor and someone who provided him guidance during the period of time he was employed by the City. (T 177-178). He also admitted that his December, 2012 report was not correct and that retail structure types are, in fact, authorized for the Property. (T 179-180). Mr. Taylor further agreed that until rezoning occurs, development of the Property is permitted in accordance with the existing CSC-N zoning and (ii) the current zoning code for a CSC-N district had to be applied in its present form. He agreed there is a distinction between "uses" and "structure type" in the zoning code and these provisions were independent of each other. He further testified the size of a structure is determined by zoning regulations and not the "use chart." Finally, Mr. Taylor admitted that he lifted out of context the provisions of Section VI-102 of the zoning code to support his testimony and that his opinion regarding the structure type authorized for the Property was speculation. (T 182-189). Mr. Sparkman spoke next and without stating any qualifications he interpreted the CSC-N zoning code and discussed two criteria for reviewing Site Plan Applications. He also said, in his opinion, a big box store should not be permitted close to a residential neighborhood, regardless of the zoning, complained about the design of the building and lack of pedestrian "connectivity," and speculated about noise without providing any specific information. On cross- 23 Filed for Record 04/24/2013 10:43 AM -- Karen E. Rushing, Clerk of the Circuit Court Sarasota County, FL -- 2013 CA 003456 NC Dkt~79427372 Page 23 of 43 examination, Mr. Sparkman admitted that he was not an engineer and is not a licensed or certified land planner. (T l67<