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Pursuant to Rules 9.100 and 9.030(c)(3) of the Florida Rules of Appellate Procedure and The Alachua County Unified Land Development Code (e.g., Article 28 and Section 402.179), Petitioner REDACTED OF FLORIDA, INC. d/b/a REDACTED’S RESTAURANT (“Petitioner”), respectfully petitions this Court for a writ of common law certiorari to review the Non-Final Judgment decision of the Board of County Commissioners (“the Commissioners”) rendered REDACTED and in support thereof would show:
Although certiorari normally issues in judicial discretion, certiorari in circuit court to review local administrative action under Fla. R. App. Pro. 9.030(c)(3) is not truly discretionary because the review is of right. Haines City Community Dev. v. Higgs, 658 So. 2d 523, 530 (Fla. 1995). Certiorari causes the entire record to be brought up in order that it may be determined whether the local authority has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law. Id.
This Court must review the record from the commission decision and determine whether: (1) procedural due process has been afforded; (2) whether the essential requirements of law have been observed; and (3) whether competent substantial evidence supports the commission’s judgment. See City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982); See also Dusseau v. Metro. Dade County Bd. of County Comm’rs, 794 So. 2d 1270, 1273-74 (Fla. 2001); Fla. Power & Light Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). The “competent substantial evidence” standard of review applied to this review “is tantamount to legally sufficient evidence.” Fla. Power & Light, 761 So. 2d 1089 at 1092.
Via a hearing on June 14, 2011 (the “Hearing”), the Alachua County Commission approved a Special Use Permit (SUP) allowing the REDACTED to operate a transitional housing facility for homeless veterans on the site of the former Holiday Inn West Hotel, at 7417 West Newberry Road (the “Property”). A copy of the Commission’s Resolution (the “Resolution”), numbered Z-11-07, is attached hereto as Exhibit A. A copy of the transcript (the “Transcript”) from the hearing is attached hereto as Exhibit B. Although the Applicant, its attorneys and/or other government officials were granted seemingly unlimited argument, the property owners were only afforded 3 minutes to state their objections and case against the proposal. See Id.
The Respondent’s Zoning Application (the “Application”), sought and the Resolution created a “Homeless Shelter” as a permitted use, under the Alachua County Unified Land Development Code (ULDC). A copy of said application is attached hereto as Exhibit C. The Hotel at issue has 152 rooms that will be used and residents would be allowed to stay there for a maximum of two years, one resident per room, with no kitchen; however, there are no guidelines as to whether these residents may reapply for additional terms and thus stay indefinitely. Id.
Importantly, the V.A. community had not expressed support for the Resolution. Testimony from REDACTED, chairman of the Alachua County Veteran’s Advisory Board, spoke at the Hearing and said as follows at page 64-65 of the Transcript:
I’m the chairman of the Alachua County Veteran’s Advisory Board. I know most of you. I have not been up in front of Commissioner Baird. Hi, Commissioner Baird. I’m here tonight with your veteran’s service officer, Major Stroup. In case you don’t know him –- he’s new in the job –- stand up, Major, please. We are here at the request of your board, who just –many of our members found out today when they put the article in the paper about this project. I must say that it’s been flying, to use an old Air Force term, under the radar for some time and most of the veterans community knew nothing about it….So what we’re asking – my phones have been ringing all day from all the members of the board. They would like a chance to take a crack at this thing and take a look at it before you vote. And, after all, we’re supposed to advise you on matters of our veterans affairs.

(e.s.). Despite Mr. REDACTED’s plea on behalf of the V.A. Community for time to analyze the project, the Commission enacted the Resolution immediately and without further input from the Veteran’s Advisory Board. Id.
Another Veteran spoke out against this project at the Hearing, again requesting more time for the project to be analyzed by the Veterans community. Mr. REDACTED, member of the Alachua County Veterans Advisory Board, testified as pages 66-67 as follows:
I’m a member of the Alachua County Veterans Advisory Board. And I am not here speaking on behalf of the board, but I do have some concerns….But I’m going to ask you to table this and bring – and let this come to the Alachua County Veterans Advisory Board. Let it come off of us. Because I think there is a command and control measure that’s missing with 153 people. You’re putting up to a company amount of personnel in this area. They are not normal citizens. They are GIs. They’re veterans. Remember, they have seen stuff and done stuff that you have not done. I’m a supporter of veterans services. I’m in support of the veterans here and we do anything that I can for them. But I am scared you’re about to make a decision that’s going to impact the community that the Alachua County Housing Authority is not ready to handle. Thank you for your time.


The Property is designated Tourist/Entertainment on the Alachua County Future Land Use Map and is zoned Highway Oriented Business Services. Id. There is no dispute that there are many businesses surrounding the area of the proposed site, such as Petitioner’s restaurant. See Exhibit B. As detailed in the Application, “[t]he site is located in the Oaks Mall Activity Center” and is in the “area surrounding the interchange of Interstate 75 and State Road 26,” (aka Newberry Road). See Exhibit C.
Petitioner requests this Court to exercise its certiorari review and quash the decision of the Alachua County Board of Commissioners on ZOS-05-11 regarding the establishment of an approximate 150 room homeless center near the Oaks Mall/I-75 area via a Special Use Permit (SUP). The Commission erred when enacting the Resolution because it 1) failed to make required findings that the Property meet its required setbacks, 2) created a Group Home that is impermissible for the current and future zoning districts of the ULDC, 3) created an illegal long term housing complex in a short term visitor zone, 4) failed to make the required findings regarding satisfaction of the general provisions of the ULDC, and 5) procedural due process was not afforded the property owners at issue. Therefore, this Court should exercise jurisdiction and issue an Order compelling the Commission to issue an Order quashing the Resolution.

The Application claimed that the Project falls within the definition a “Homeless Shelter” as that term is defined pursuant to the ULDC. Pursuant to Section 404.38(b) of the ULDC, a homeless shelter must comply with the following: “All principal and accessory buildings shall meet the required setbacks for the zoning district,” e.s. As described below, the Commission failed to insure that the Property met the required setbacks for its zoning district.
Section 403.12 of the ULDC sets for the various setback requirements for each zoning district. A setback is defined by the ULDC as follows:
Setback: The minimum horizontal distance between the lot lines and front, rear or side lines of the building, including steps, terraces, or any projection thereof. When two or more lots under one ownership are used, the exterior property lines so grouped shall be used in determining setbacks. Notwithstanding other provisions, all street sides of a corner lot shall be construed as having a “front setback.”

Section 403.12 requires that “Within all commercial zoning districts, principal building and accessory buildings shall be located and constructed in accordance with the requirements of Table 403.12.1” of the ULDC, e.s. Section 403.12 makes it clear that the districts applicable to the Property (i.e. zones BR-1 (Business, Tourist and Entertainment) and BH (Highway Oriented Business Services)) are commercial zoning districts to which Section 403.12 applies.
Table 403.12. contains the required setbacks for each side of the property at issue; for example, it requires that the setback for the Business Highway zone be 25 feet from the “street side”. A copy of Table 403.12.1 is set forth below:

Moreover, the definition section of the ULDC makes it clear that the definition of “accessory buildings” (for purposes of applying Section 403.12) is extremely broad – encompassing almost every type of possible construct. The applicable definitions are as follows:
Accessory Building: A subordinate building, the use of which is incidental to that of the principal building on the same lot. Accessory screened enclosure structures, whether or not attached to the principal building, shall be considered an accessory building if the roof and all sides of the enclosure not attached to the principal building are made of the screening material. In such cases the accessory building setback for the respective zoning district shall apply.

Building: Any structure constructed or used for residence, business, industry, or other public or private purposes or accessory thereto and including tents, lunch wagons, dining cars, trailers, mobile homes, sheds, garages, carports, animal kennels, storerooms, gasoline pumps, solar panels and similar structures, whether stationary or movable.

Structure:  Anything constructed or erected that requires a location on the ground or attached to something having location on the ground.

Thus, pursuant to the Table 403.12.1″ of the ULDC and the Definitions associated with what constitutes an “Accessory Building”, almost anything “constructed or erected” must be at least 25 feet from the property line.
The Commission completely ignored the setback requirements which they had to address to approve the SUP. Moreover, a brief review of the record shows the Property is in violation of those setback requirements. Specifically, the Survey shows a concrete wall (apparently a wall built for the trash dumpster) is out of code because it is only 14.7 feet from the “street side” instead of 25 feet. Moreover, because a wall is “constructed or erected”, used by the business that currently operates on the Property, and is on the same lot, it is an accessory building subject to the setbacks. Other setback violations may, or may not, be present at the property – but the Commission ignored the issue altogether.
In this case, both the testimony at the Hearing and the Resolution revealed that the Commission completely ignored the setback requirements of Section 404.38(b). It was never mentioned at the Hearing, and no findings were made regarding this requirement in the Resolution. This failure has practical consequences, given the fact that the Property appears not to be compliant with the setback requirements of Table 403.12.1 of the ULDC.
In sum, both the testimony at the Hearing and the Resolution ignore the setback requirements. Thus, the Resolution did not make the required finding, mandated by Section 404.38, that the planned “homeless shelter” comply with the requirement that “All principal and accessory buildings shall meet the required setbacks for the zoning district.”

As admitted in the Application, the Property is designated Business Tourist/Entertainment on the Alachua County Future Land Use Map (“BR-1”) and is zoned Highway Oriented Business Services (“BH”). Moreover, although the Application admitted that the desired use qualified as a “homeless shelter”, testimony provided at the Hearing made it clear that the desired use was not at all a homeless shelter; it was actually more properly classified as an Assisted Living Facility (a subcategory of the Group Housing general heading) that is forbidden as a use in the BR-1 and BH zones.
At the Hearing on June 14, 2011, Vianne REDACTED testified as a representative employee of the North Florida/South Georgia Veterans Health System (an organization based in Gainesville). See page 25 of the Transcript, attached as Exhibit B. On page 28 of the Transcript, Ms. REDACTED made it clear that the desired use was not that of a homeless shelter. Her testimony is as follows:
the majority of the veterans who are coming into our grant and per diem transitional housing programs are veterans who are engaged in vocational rehab activities; are engaged in job hunting; engaged in volunteer activities; a whole host of things that would structure their day. These are not –- this is not a homeless shelter. It is not -– that is not even something that, if it were, I would be under authority from VA to authorize payment for. And we do authorize those payments out of my office.

(e.s.). Thus, if the proposed use is not of a homeless shelter, the Commission is not permitted to allow it even pursuant to a SUP per Ch. 404, Article 2 – the Use Table.
Thus, if the SUP did not seek to establish a homeless shelter, then the next question that must be addressed is what did they seek to establish. The record before the Court clearly answers this question and shows that the purpose is “Group Housing”, which ordinarily consists of Assisted Living Facilities, Nursing Homes, Dormitories, Fraternity or Sorority Houses, and Community Residential Homes. See the Use Table, pasted infra. Moreover, even if the requested use does not squarely fit within one of the normal types of Group Housing, the “Similar Use” provisions of Section 404.07 operate to make the same standards for Group Housing apply to the desired use of the Property.
Specifically, Section 404.07 of the ULDC addresses “Similar Uses” and makes it clear that they may be permitted only if they meet “all requirements of the uses to which they are similar.” As to what constitutes a Similar Use, Section 404.08 provides as follows:
A use not listed in the use table, but possessing similar characteristics, including but not limited to size, intensity, density, operating hours, demands for public facilities such as water and sewer, traffic and environmental impacts, and business practices, may be allowed upon approval by the Director. Such uses will be determined based on the use category tables and definitions in Chapter 410. Similar uses shall be subject to all requirements of the uses to which they are similar.

(e.s.). Taking Ms. REDACTED’s unrebutted testimony (that they were not seeking to create a homeless shelter) into consideration and the Application itself, the desired use of the Property is more similar an Assisted Living Facility/Group Housing category than a homeless shelter. An Assisted Living Facility is defined by the ULDC as follows:
Assisted living facility: Any building or buildings, section of a building, or distinct part of a building, residence, private home, boarding home, home for the aged, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide, for a period exceeding 24 consecutive hours, housing, food service, and one or more personal care for four or more adults, not related to the owner or operator, who require such services. Personal care, for the purposes of this definition, may include ambulation, bathing, dressing, eating, grooming, toileting, and other similar tasks.

Ch. 404, Article 2 does not allow Assisted Living/Group Housing and only permits the following uses be granted via a SUP: Government Buildings and Facilities, Cemetery, Homeless Shelter (principal use), Soup Kitchen (principal use), Personal Wireless Service Facilities, and Package Treatment Plant. See also Section 404.05 (Applicability) (“Permitted, limited, special, accessory and prohibited uses are established in the use table. The use of all new or existing structures and properties shall conform with the requirements of the use table and with all other applicable requirements of this ULDC.”)[Footnote]

Because there is no dispute that the planned use will result in the housing of persons in excess of 24 hours, the only remaining issues are whether the owner or management will provide food service and personal care to its residents. If so, the requested use is prohibited by Ch. 404, Article 2 – the Use Table because an Assisted Living Facility (as with any type of Group Housing) is not permitted given the current zoning of the Property (even per a Special Use Exception, See supra Ch. 404, Article 2 – the Use Table).
As to whether food service will be supplied, the Application answers this question in the affirmative. In particular, the Application provides as follows:
Needs of Clientele: Homeless veterans need a stable living situation, access to healthcare and social services, food and other basic supplies. Gainesville Hotel will fulfill these needs.

As to whether personal care will be provided, again the unrebutted testimony of Ms. REDACTED at the Hearing answers the question in the affirmative. Her testimony, at page 50 of the Transcript, provides as follows:
I want to clarify just a couple of things, so that we’re all clear. Number one, the VA has provided funding. This is not the VA’s program. We are a partner. Alachua County Housing Authority was awarded a grant to operate a program. We provide oversight. We inspect. We screen. We provide care to the veterans that are there. We work in partnership with them. But it is the Alachua County Housing Authority that asked for the money and it is property that they own. So it is a joint venture…

(e.s.). Moreover, as noted above, the Application states that the Property owners/managers will fulfill the needs of access to health care, social issues, as well as food and basic supplies. Accordingly, because the use of the property is more properly classified as something other than a homeless shelter (i.e. a Group Home/Assisted Living), it is not permitted via a SUP pursuant to Ch. 404, Article 2 – the Use Table.

As described in the Application, the Property “has 152 rooms” and residents will be allowed to stay there for two years. There is no standard for readmitting (or denying readmission) to residents after their two year stay has expired, for additional 2 year stays. Therefore, the residents could potentially live at the Property for life.
The Future Land Use Map, Article 4, 403.11(d) for the BR-1 District (Business, Tourist and Entertainment District), makes it clear that that the BR-1 District is only proper for “short term” visitors. To this end, Article 4, 403.11(d) provides in pertinent part that “The BR-1 district is intended to provide commercial uses that are oriented primarily toward services for the short term visitor to Alachua County, by providing lodging and related commercial uses at the following locations: 1. designated highway interchanges with Interstate 75; 2. locations adjacent to natural resources, consistent with the protection of those resources; or 3. locations adjacent to other major tourist destinations.”
The residents of the Property would, indisputably, not be short term visitors as they could remain residents at the property for at least 2 years if not indefinitely. Thus, because this requested use is not for short term visitors, it would be impossible for the Commission to reasonably conclude that “the proposed use is consistent with the Comprehensive Plan and ULDC” and “the proposed use is compatible with the existing land use pattern and future uses designated by the Comprehensive Plan” as required for a SUP by Section 402.124 of the ULDC. As shown above, the Commission decision should be quashed because it represents an arbitrary exercise of governmental power that departs from the essential requirements of the law, and there is no competent substantial evidence to support it. The landmark decision of Auerbach v. City of Miami, 929 So. 2d 693, 694 (Fla. 3d DCA 2006) states:
[t]he law…will not and cannot approve a zoning regulation or any governmental action adversely affecting the rights of others which is based on no more than the fact that those who support it have the power to work their will. [quoting Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387,394 (Fla. 3d DCA 1980), cert. den., 386 So. 2d 635 (Fla. 1980)]

Moreover, other cases have held that a ruling constitutes a departure from the “essential requirements of law” when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice,” Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 5th DCA 2003) (citing Combs v. State, 436 So.2d 93, 96 (Fla. 1983)); see also City of Tampa v. City Nat. Bank of Florida, 2007 WL 1484488 (Fla. 2d DCA May 23, 2007) (“To apply the correct law means to observe the essential requirements of law”). In addition, on certiorari review, a Petitioner is “entitled to consideration of whether the administrative agency followed its laws and regulations.” see Osborn v. Board of County Comm’rs, 937 So.2d 1119, 1120 (Fla. 3d DCA 2006). The “competent substantial evidence” element of the standard of review requires a determination whether there is legally sufficient evidence to support the decision, Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000); Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1032 (Fla. 4th DCA 2002).
Here, the record is devoid of any evidence that the agency followed its laws and regulations. In fact, the record shows that the Commission inconsistently and arbitrarily applied the requirement in Article 4, 403.11(d) that only “services for the short term visitor to Alachua County” are permitted in the BR-1 zone. As a result, this Court must act to correct the errors made down below, see Osborn v. Board of County Comm’rs, 937 So.2d 1119, 1120 (Fla. 3d DCA 2006), and quash the Resolution.

The ULDC provides that the Commissioners’ decision make “a finding that an application complies with both the general criteria” and certain review factors enumerated in Section 402.124 (Criteria for Approval). Section 402.124 reads in part as follows:
The Board of County Commissioners shall, as part of a decision to approve an application for a special use permit, make a finding that an application complies with both the general criteria and the review factors listed below:

(a) the proposed use is consistent with the Comprehensive Plan and ULDC;
(b) the proposed use is compatible with the existing land use pattern and future uses designated by the Comprehensive Plan;
(c) the proposed use shall not adversely affect the health, safety, and welfare of the public; and
(d) satisfactory provisions and arrangements have been made concerning the following matters, where applicable….

Although the Resolution specifically addressed the review factors listed in Section 402.124, it failed to make a finding that the Application complied with the general criteria of the Article. Instead, the Resolution confuses the review factors listed in Section 402.124 with the ULDC’s general criteria that there be proper notice to the public, etc. In this regard, paragraph Five of the Resolution states “Any Special Use Permit is required to demonstrate that it complies with the general criteria identified in Section 402.124 of the ULDC. These criteria are: a. the proposed use is consistent with the Comprehensive Plan and ULDC…” The Resolution never addressed the general requirements – it only addressed the review factors listed in Section 402.124 (mistakenly calling them the general factors).
The Resolution reflects that the Commission failed to address whether the following general requirements were satisifed:
402.118 Pre-application Conference. Prior to the submittal of an application for a special use permit, the applicant shall request and participate in a pre-application conference with the Department.

402.119 Neighborhood Workshop. An applicant shall hold a neighborhood workshop prior to submittal of a special use permit application in accordance with Article 5, Neighborhood Workshops, of this Chapter.

402.120 Application Requirements. An application for a special use permit shall be submitted in accordance with 0, Common Development Application Elements, of this Chapter. Applications for Preliminary Development Plan approval may be processed concurrently with applications for Special Use Permit. Applications submitted concurrently may have additional requirements for submittal.

402.121 Public Notice Requirements. Mailed notice, published notice and posted notice shall be required for any application for a special use permit in accordance with the procedures in Article 4, Notice of Hearings, of this Chapter.

The requirement in Section 402.124 that general requirements be specifically stated as satisfied had important consequences in this matter. For example, in contravention of Section 402.121 above, evidence at the hearing demonstrates that certain citizens were not provided with proper notice. Evidence supplied at the Hearing states as follows:
MR. REDACTED: That is who my client is foreclosing on. The Secretary of State, Sunbiz Division of Corporations shows the ownership for Danly Group to be addressed to Newberry Road in Gainesville, and the registered agent is Newberry Road in Gainesville. My client, my client filed a lis pendens when the foreclosure was filed, putting the world on notice of that particular foreclosure procedure was happening relative to that real property. Again, despite the notice requirement to that workshop, despite the evidence that is in that application, my client was never ever given notice of that. It is a procedural flaw in the application process affecting my client

Whether or not Mr. REDACTED assertions that a notice violation existed were true was never addressed in the Resolution. Moreover, even if Mr. REDACTED assertions are incorrect, the Resolution violated the express provisions of Section 402.124 by failing to address whether the general requirements had been satisfied (including but not limited to those provided for via 402.118 – 402.121). At a minimum, the Resolution was required to state that the Application complied with the general provisions of the code. It did not and therefore the Resolution should be quashed.

On first-tier certiorari review from an administrative decision, “the circuit court must determine whether procedural due process is accorded…”” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). In similar circumstances, unreasonably limiting the time parties are afforded to state their cases in judicial (or, presumably, quasi-judicial proceedings such as the Hearing) amounts to an abuse of the governing bodies discretion. See Maleh v. Florida East, 491 So. 2d 290 (Fla. 3rd DCA 1986) (The District Court of Appeal held that the order limiting plaintiff’s counsel to an opening statement of five minutes and to a closing argument of 15 minutes was arbitrary); McLean v. State, 32 Tex.Crim. 521, 24 S.W. 898 (1894) (taking into consideration the number of testifying witnesses in adultery case and the conflicting nature of their testimony, court held a seventeen-minute limit on argument improper); Jerrell v. Norfolk & Portsmouth Belt Line R.R. Co., 166 Va. 70, 184 S.E. 196 (1936) (stating that counsel in personal injury case could not adequately open and close their arguments in thirty minutes because the questions were complicated, and noting that the action by trial court seemed calculated to give the jury the impression that the court thought little of the plaintiff’s case).
At the Hearing in this case, the property owners such as the Petitioner were only permitted about 3 minutes to rebut the contentions and arguments made by the Applicant (whom the Commission allowed significantly more time). This is especially troubling given the fact that the Hearing was a quasi-judicial one (as opposed to a normal Commission hearing), and thus issues of procedural due process and abuse of discretion are of great import. Arbitrarily limiting argument to only three minutes is both an abuse of discretion and deprives the public of their right to due process as it prevents a fair rebuttal of the applicant’s testimony.[Footnote] Finally, the actual persons being most affected by the action (the Veterans via their Alachua County Veterans Advisory Board) were asking for additional time for the project to be considered and analyzed. At least two persons from the Alachua County Veterans Advisory Board requested the vote on the Resolution be delayed so that the Veterans community could consider the project. The chairman of the Alachua County Veterans Advisory Board testified that his “phones have been ringing all day from all the members of the board. They would like a chance to take a crack at this thing and take a look at it before you vote.” Another member of the board specifically asked that the vote on the resolution be tabled so it could be properly considered by the Alachua County Veterans Advisory Board. Thus, it is abundantly clear the Veterans themselves (insomuch as they are represented by the Alachua County Veterans Advisory Board) were not afforded sufficient time to consider and argue their cases regarding the Resolution.
Petitioner respectfully requests this Court exercise jurisdiction and issue an Order quashing the resolution passed by the Board of County Commissioners of Alachua County on REDACTED, and remanding the issues addressed herein for further proceedings.

Respectfully Submitted,

Massey & Duffy

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