Wal-Mart: Zoning shouldn't be up to review board's 'whim'

Published: Thursday, October 1, 2009 at 5:32 p.m.
Last Modified: Thursday, October 1, 2009 at 5:32 p.m.

Wal-Mart argued in a legal brief recorded Thursday that the design of its proposed Supercenter in northwest Gainesville is an allowed use on the property's zoning that should not be subject to the whims of the city's Development Review Board and should be given the same consideration as other big-box plans approved on similar properties in recent years.

The reply brief, filed Wednesday night, is the last round of legal filings before a hearing before an administrative hearing officer Monday at the the civil courthouse in Gainesville.

The board voted 4-3 on July 9 to deny Wal-Mart's application for the property in the 5800 block of Northwest 34th Street, saying it did not comply with the city's comprehensive plan.

Wal-Mart appealed the decision to the Florida Division of Administrative Hearings, saying the board misinterpreted the comp plan.

Thursday's brief from Jacksonville land-use attorney Karl Sanders was in response to the city attorney's defense of the review board's decision.

The first argument centered on whether Wal-Mart should be allowed to challenge the boundaries set by the city staff to determine the "block face" -- or the front of the property -- from which building setbacks are measured.

The city said the block face issue cannot be raised because, though Wal-Mart objected during a "concept review," it did not object during a "quasi-judicial proceeding" such as the July 9 hearing.

Sanders said Wal-Mart raised repeated objections to the setback issue and pointed to a Florida Supreme Court ruling that transcripts of prior board proceedings are allowed in administrative appeals.

City planning staff said the front of the property is Northwest 23rd Street, stopping at Northwest 62nd Avenue on one side, and that Wal-Mart would be required to place its building or build two outparcels within 15-80 feet of 23rd Street.

Wal-Mart's argument is that as a private street, 62nd Avenue doesn't exist by city law, so the block face extends to the Northwood Commercial Center. That would allow Wal-Mart to place its building as far from the road as Northwood.

Sanders also argued that individual board members insisted on redesigning the site plan to satisfy their own opinion of how to make it compatible, saying that the Florida Department of Community Affairs has ruled that property owners are entitled to a notice of what conditions they must meet to develop property "and once met, cannot be refused."

As a matter of fair play, Sanders wrote that Wal-Mart requests the same treatment from the board given to similar projects in Mixed Use 2 zoning, such as the Wal-Mart Supercenter in east Gainesville and Lowe's Home Improvement on Northwest 13th Street.

The city's prior defense pointed out that board members raised numerous concerns about comp plan violations in addition to the setback issue, such as that it overlapped existing mixed-use market areas, was isolated from the nearby neighborhood and had limited pedestrian connections.

John Hudson, who owns property nearby, has filed as an intervenor in the case in defense of the city.

The administrative hearing officer can uphold the board's decision or rule that the decision did not follow the law and send the case back to the board to reconsider.

The city's land development code does not set a timetable for the officer to make a decision.

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