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HomeMy WebLinkAboutSubmittal-Carter McDowell 2SUBMITTED INTO THE Page 2 of 8 Westlaw. PUBLIC RECORD FOR 426 So.2d 1100 MPage 1 426 So.2d 1100 IT SP (Cite as: 426 So.2d 1100) /. .E P District Court of Appeal of Florida, Third District. CITY OF MIAMI and Santa Maria Development Group, Petitioners, V. SAVE BRICKELL AVENUE, INC., Respondent. Nos. 82-634,82-742 and 82-790. Feb. 1, 1983. Citizens' association brought action challenging constitutionality of planned area development or- dinance which provided ostensible authority for a Miami city commission resolution approving a pro- posed planned area development project. The Cir- cuit Court, Dade County, N. Joseph Durant, Jr., Gerald Kogan and Murray Goldman, JJ., found the challenged ordinance to be unconstitutional, and city and development group petitioned for writ of certiorari. The District Court. of Appeal, Schwartz, C.J., held that: (1) citizens' association had standing to challenge constitutionality of ordinance, and (2) challenged ordinance was invalid as an unconstitu- tional delegation of legislative power. Certiorari denied. West Headnotes [11 Zoning and Planning 414 X23.1 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(A) In General 414k23 Persons Entitled to Attack Valid- ity 414k23.1 k. In General. Most Cited Cases (Formerly 414k23) Citizens' association had standing to attack consti- tutionality of enabling ordinance which was an es- sential procedure preceding enactment of zoning resolution; such attack constituted a challenge to how resolution was enacted, not what was enacted. [21 Zoning and Planning 414 X23.1 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(A) In General 414k23 Persons Entitled to Attack Valid- ity 414k23.1 k. In General. Most Cited Cases (Formerly 414k23) Supreme Court's determination that any affected citizen has standing to attack a zoning ordinance which is void because not properly enacted, as where required notice was not given, applies to any asserted basis for the conclusion that the enactment in question is void. [31 Zoning and Planning 414 X42 414 Zoning and Planning 414I1 Validity of Zoning Regulations 414II(A) In General 414k42 k. Standards Governing Conduct of Administrative Officials. Most Cited Cases Where city commission itself acted as a zoning au- thority, as under planned area development ordin- ance in question, there was a requirement for suffi- cient standards in exercise of such discretion. [41 Zoning and Planning 414 0615 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k614 Wisdom, Judgment, or Opin- ion 414k615 k. Regulations in General. Most Cited Cases Questions of zoning policy, of what is good or bad for the city and the public, involve an exercise of police power and therefore are essentially matters within the legislative orbit. [51 Zoning and Planning 414 X602 © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. og- 0 3 97ct 16rital - Ca At r rnC �DOwe 112 - 0/4/ 07 zt http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e... 1/6/2009 426 So.2d 1100 426 So.2d 1100 (Cite as: 426 So.2d 1100) 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)I In General 414k602 k. Regulations in General. Most Cited Cases In determining whether planned area development ordinance lacked sufficient standards for the guid- ance and control of the city commission and as such was an unpermitted, arbitrary and unfettered deleg- ation of authority to the commission, circuit court did not need to consider whether the commission had in fact acted capriciously or arbitrarily, because it was the opportunity, not the fact itself, which would render the ordinance vulnerable. 161 Zoning and Planning 414 X42 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(A) In General 414k42 k. Standards Governing Conduct of Administrative Officials. Most Cited Cases If definite standards, establishing guide for exercise of discretion, are not included in zoning ordinance, ordinance must be deemed unconstitutional as an invalid delegation of legislative power to an admin- istrative board. West's F.S.A. Const. Art. 2, § 3. 171 Statutes 361 0227 361 Statutes 361 VI Construction and Operation 361 VI(A) General Rules of Construction 361k227 k. Construction as Mandatory or Directory. Most Cited Cases In statutory construction, the word "may," when given its ordinary meaning, denotes a permissive term rather than mandatory connotation of the word "shall." [81 Zoning and Planning 414 X42 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(A) In General Submitted into the public record in connection with item SP.1, SP.2 & SP.3 on 08-06-09 Priscilla A. Thompson_ Page 3 of 8 Page 2 414k42 k. Standards Governing Conduct of Administrative Officials, Most Cited Cases Where wording of zoning ordinance permitted city commission to totally disregard listed criteria for approval of deviations from zoning regulations and instead to base a decision upon criteria that were not listed or no criteria at all, ordinance failed to prescribe definite standards to guide commission in the exercise of its discretion and was unconstitu- tional as an unpermitted, arbitrary and unfettered delegation of authority to itself. West's F.S.A. Const. Art. 2, § 3. *1101 Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A. and Anthony J. O'Donnell, Jr., Miami, Jose R. Garcia -Pedrosa, City Atty. and Terry V. Percy, Asst. City Atty., for peti- tioners. Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for respondent. Before SCHWARTZ, C.J., BARKDULL, J., and OWEN, WILLIAM C., Jr., Associate Judge. SCHWARTZ, Chief Judge. By petitions for certiorari, City of Deerfield Beach v. Vaillant, 419 So.2d 624 (F1a.1982), we review a decision of the appellate division of the Dade County circuit court which, on appeal by Save Brickell Avenue, Inc., reversed a Miami City Com- mission resolution approving a proposed Planned Area Development (PAD) project. Adopting the opinion in a companion case which presented the identical issues, the lower court held that (a) a cit- izens' association such as Save Brickell had stand- ing to challenge the constitutionality of the underly- ing PAD ordinance*1102 which granted the com- mission the ostensible authority to enact the resolu- tion in question and (b) the PAD ordinance was in fact invalid as an unconstitutional delegation of le- gislative power. We conclude that both holdings fully comport with the essential requirements of the law and therefore deny the petitions. [1][2] 1. Standing. On the standing question, the &Z069 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e... 1/6/2009 426 So.2d 1100 426 So.2d 1100 (Cite as: 426 So.2d 1100) comprehensive and well -reasoned opinion of Judge Thomas E. Scott, which was adopted below, states as follows: The Appellant, SAVE BRICKELL AVENUE, INC., is a non-profit, 'watch -dog' corporation consisting of members who own homes on a ten block stretch of Brickell Avenue. SAVE BRICK - ELL'S purpose is to express homeowner view- point to entities such as Appellee, CITY OF MIAMI, concerning development plans for Brickell Avenue property.... This is the second appearance before the Court. In prior proceedings, the Circuit Court dismissed SAVE BRICKELL'S appeal for want of standing to question the Resolution since it was not a property owner. On certiorari to the Third District, the Court of Appeal in Save Brickell Avenue, Inc. v. The City of Miami, 393 So.2d 1197, 1198 (Fla. 3d DCA 1981), reversed in part, holding that Save Brick - ell: "... is an 'affected ... citizen' which has stand- ing to attack the enactment in question on the ground which was asserted below, that it is void or invalid because the 'required notice was not given...' ' Subsequently, in Save Brickell Avenue, Inc. v. The City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981) [the instant case), the District Court ampli- fied its position: .. this case is controlled by our recent de- cision in Save Brickell Avenue, Inc. v. The City of Miami, Florida, 393 So.2d 1197 (Fla. 3d DCA 1981), where in a substantially identical setting we held that Save Brickell Avenue, Inc. had standing. We clarify that the statement in the cited case that Save Brickell Avenue, Inc. had standing to attack the enactment in ques- tion on the ground, which was asserted below, that it is void or invalid because the 'required Page 4 of 8 Page 3 notice was not given' was meant to limit the standing of an `affected citizen' to an attack based exclusively on the ground that `required notice was not given.' An affected citizen such as Save Brickell Avenue, Inc., has standing to attack the resolution on the ground that it is void or invalid by reason of departure from any essential procedure preceding its enactment. It may, in short, attack how the resolution was enacted, but not what was enacted." Appellees contend that Save Brickell's three points on appeal raise nothing which is properly before the Court. Point I attacks the constitution- ality of the underlying PAD ordinance. As to that point, Appellees argue Save Brickell . has no standing to raise this issue. The question of standing to raise the constitu- tionality of the ordinance requires ... extended discussion. In that regard, the issue is whether within the parameters of the Court of Appeal's previous opinions, Appellant's present attack on the constitutionality of the PAD ordinance consti- tutes a challenge '... on the ground that it is void or invalid by reason of a departure from any es- sential procedure preceding its enactment ... in short, attack how the resolution was enacted, but not what was enacted.' We hold that it does and, therefore, Save Brick - ell may attack the unconstitutionality of the PAD ordinance. We feel it is clear that the District Court contemplated that 'affected citizens' such as Save Brickell should be given the right to at- tack the constitutionality of the enabling ordin- ance. This conclusion is reasonable in light of the language that Save Brickell may attack the resol- ution based on voidness or invalidity.' Save Brickell v. The City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981). Moreover, a constitutional attack on an ordinance is an '...*1103 essential procedure preceding its enactment ...'. Any other conclusion would lead to an absurd and inconsist- ent result whereby an organization such as Save © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. J http://web2.westlaw.com/piint/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e 1/6/2009 �I OCrf+ to 7 (D rte, O 3 0 v aoo N o_ a '> UD Z rt 1 O ---IN (OD ::r Ra s O o M 3 v X3 W c O �_ 3 =r n I The Appellant, SAVE BRICKELL AVENUE, INC., is a non-profit, 'watch -dog' corporation consisting of members who own homes on a ten block stretch of Brickell Avenue. SAVE BRICK - ELL'S purpose is to express homeowner view- point to entities such as Appellee, CITY OF MIAMI, concerning development plans for Brickell Avenue property.... This is the second appearance before the Court. In prior proceedings, the Circuit Court dismissed SAVE BRICKELL'S appeal for want of standing to question the Resolution since it was not a property owner. On certiorari to the Third District, the Court of Appeal in Save Brickell Avenue, Inc. v. The City of Miami, 393 So.2d 1197, 1198 (Fla. 3d DCA 1981), reversed in part, holding that Save Brick - ell: "... is an 'affected ... citizen' which has stand- ing to attack the enactment in question on the ground which was asserted below, that it is void or invalid because the 'required notice was not given...' ' Subsequently, in Save Brickell Avenue, Inc. v. The City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981) [the instant case), the District Court ampli- fied its position: .. this case is controlled by our recent de- cision in Save Brickell Avenue, Inc. v. The City of Miami, Florida, 393 So.2d 1197 (Fla. 3d DCA 1981), where in a substantially identical setting we held that Save Brickell Avenue, Inc. had standing. We clarify that the statement in the cited case that Save Brickell Avenue, Inc. had standing to attack the enactment in ques- tion on the ground, which was asserted below, that it is void or invalid because the 'required Page 4 of 8 Page 3 notice was not given' was meant to limit the standing of an `affected citizen' to an attack based exclusively on the ground that `required notice was not given.' An affected citizen such as Save Brickell Avenue, Inc., has standing to attack the resolution on the ground that it is void or invalid by reason of departure from any essential procedure preceding its enactment. It may, in short, attack how the resolution was enacted, but not what was enacted." Appellees contend that Save Brickell's three points on appeal raise nothing which is properly before the Court. Point I attacks the constitution- ality of the underlying PAD ordinance. As to that point, Appellees argue Save Brickell . has no standing to raise this issue. The question of standing to raise the constitu- tionality of the ordinance requires ... extended discussion. In that regard, the issue is whether within the parameters of the Court of Appeal's previous opinions, Appellant's present attack on the constitutionality of the PAD ordinance consti- tutes a challenge '... on the ground that it is void or invalid by reason of a departure from any es- sential procedure preceding its enactment ... in short, attack how the resolution was enacted, but not what was enacted.' We hold that it does and, therefore, Save Brick - ell may attack the unconstitutionality of the PAD ordinance. We feel it is clear that the District Court contemplated that 'affected citizens' such as Save Brickell should be given the right to at- tack the constitutionality of the enabling ordin- ance. This conclusion is reasonable in light of the language that Save Brickell may attack the resol- ution based on voidness or invalidity.' Save Brickell v. The City of Miami, 395 So.2d 246 (Fla. 3d DCA 1981). Moreover, a constitutional attack on an ordinance is an '...*1103 essential procedure preceding its enactment ...'. Any other conclusion would lead to an absurd and inconsist- ent result whereby an organization such as Save © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. J http://web2.westlaw.com/piint/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e 1/6/2009 O 9 0 3 9 Ln b v WE 6 Ln D � N S 90 O Ln 3 W tAO 7 426 So.2d 1100 426 So.2d 1100 (Cite as: 426 So.2d 1100) Brickell could attack on notice grounds a resolu- tion but not challenge the very validity of the un- derlying ordinance.' Such a situation is totally incongruous. In the present case, the City enacted the subject resolution pursuant to the PAD ordinance. If the ordinance is unconstitutional, i.e., void and inval- id, then the Commission did not have the power or authority to approve the resolution; an , a or- tiori, any resolution passed pursuant t ereto is likewise invalid. is is true even if the unconstj- tutionality of the ordinance is not raised until after the resolution has been passed. State ex rel. uveen v. Green, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298 (1924).3 To summarize, we hold that Save-Brickell is attacking an `essential pro- cedure preceding enactment' of a zoning resolu- tion, to -wit: the constitutionality vel non of the enabling ordinance. FNI These are terms commonly used in constitutional jargon for a statute [that] is determined to be unconstitutional. The leg- al definition of the word 'void' is null, in- effectual or having no legal force or bind- ing effect; unable, in law, to support the purpose for which it was intended. The word 'invalid' is defined as not of binding force or legal efficacy or lacking in author- ity or obligation. Black Law Dict. (5th Ed.) Page 5 of 8 Page 4 time of its enactment and not only from the time of the decision. In other words, if a legislative enactment conflicts with an ex- isting' provision of the Constitution, such enactment never becomes law." IOFLa.Jur.2d, Const.Law Sec. 91 pg. 307; and 16 Am.Jur.2d, Comst.Law, Sec. 177. We have little to add to this discussion except to express our agreement with its interpretation of our prior opinions in these cases and to note that the core of the standing problem is, of course, the prop- er interpretation of the supreme court's determina- tion in Renard v. Dade County, 261 So.2d 832, 838 (F1a.1972) that "[a]ny affected ... citizen" F"' has "standing to attack a zoning ordinance which is void because not properly enacted, as where re- quired notice was not given." It seems clear that this expression applies to any asserted basis for the conclusion that the enactment in question is "void," and, indeed, that, if anything, it is more important to permit a citizen to claim that his government is acting totally without constitutional authority than that it has not observed the procedural niceties.F"' FN 1. We held in Save Brickell Ave., Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981) that Save Brickell was an "affected citizen" within the meaning of this statement. FN2. Neither instance involves the wis- dom, reasonableness, or fairly debatable nature of the ordinance, none of which, it is clear, may be challenged by a citizens' group like Save Brickell. United States Steel Coip. v. Save Sand Key, Inc., 303 So.2d 9 (F1a.1974); Renard v. Dade County, supra, 261 So.2d at 838; Hemi- sphere Equity Realty Co. v. Key Biscayne Property Taxpayers Association, 369 So.2d 996, 1001 (Fla. 3d DCA 1979). [3][4][5][6][7][8] 2. Constitutionality. As to the in- validity of the PAD ordinance itself, there is no need to do more than to indicate our complete ap- © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e... 1/6/2009 FN' This is not a situation where Save Brickell is attacking the responsibility of the Resolution passed pursuant to the or- dinance or where there was inadequate evidence before the City Commission. There arguments would be precluded under the previous Save Brickell cases. Ln Crc O 3 CL FN''Thus, a statute or part of a statute which is duly declared unconsitutional and o ° rendered inoperative by the supremacy of 3 o the Constitution is inoperative from the fD r+ i rt ? O N 7 � O i Cr � rr = Page 5 of 8 Page 4 time of its enactment and not only from the time of the decision. In other words, if a legislative enactment conflicts with an ex- isting' provision of the Constitution, such enactment never becomes law." IOFLa.Jur.2d, Const.Law Sec. 91 pg. 307; and 16 Am.Jur.2d, Comst.Law, Sec. 177. We have little to add to this discussion except to express our agreement with its interpretation of our prior opinions in these cases and to note that the core of the standing problem is, of course, the prop- er interpretation of the supreme court's determina- tion in Renard v. Dade County, 261 So.2d 832, 838 (F1a.1972) that "[a]ny affected ... citizen" F"' has "standing to attack a zoning ordinance which is void because not properly enacted, as where re- quired notice was not given." It seems clear that this expression applies to any asserted basis for the conclusion that the enactment in question is "void," and, indeed, that, if anything, it is more important to permit a citizen to claim that his government is acting totally without constitutional authority than that it has not observed the procedural niceties.F"' FN 1. We held in Save Brickell Ave., Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981) that Save Brickell was an "affected citizen" within the meaning of this statement. FN2. Neither instance involves the wis- dom, reasonableness, or fairly debatable nature of the ordinance, none of which, it is clear, may be challenged by a citizens' group like Save Brickell. United States Steel Coip. v. Save Sand Key, Inc., 303 So.2d 9 (F1a.1974); Renard v. Dade County, supra, 261 So.2d at 838; Hemi- sphere Equity Realty Co. v. Key Biscayne Property Taxpayers Association, 369 So.2d 996, 1001 (Fla. 3d DCA 1979). [3][4][5][6][7][8] 2. Constitutionality. As to the in- validity of the PAD ordinance itself, there is no need to do more than to indicate our complete ap- © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e... 1/6/2009 O ;: cn n O - o 30, 3 v oo Ln 0- f+ n. � M ni 0'n 0 O -. N O O 0 S � O M 37 3 -p b w c O Cr s 426 So.2d 1100 426 So.2d 1100 (Cite as: 426 So.2d 1100) proval of Judge Scott's opinion on the subject. Having now determined that Save-Brickell may challenge the constitutionality of the ordinance, the next question becomes whether PAD ordin- ance is void? In seeking an answer to this thorny problem, two issues are presented: (1) Whether there is a requirement for stand- ards where the City Council itself acts as the zoning authority and does not delegate legislat- ive authority to an independent administrative agency? (2) Whether the challenged zoning ordinance has sufficient standards to guide the City of Miami Commission in the exercise of its power under the PAD ordinance? *1104 The first issue was addressed in City of Coral Gables v. Deschamps, 242 So.2d 210 (Fla. 3d DCA 1970). In that case, the Third District Court of Appeal held that there is a requirement for standards where the City Council itself acts as a zoning authority and does not delegate its legis- lative authority to an independent agency. The Appellate Court relied, in part, upon the opinion in North Bay Village v. Blackwell, 88 So.2d 524 (Fla. 1956), wherein the Supreme Court opined: `An ordinance whereby the City Council deleg- ates to itself the arbitrary and unfettered au- thority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, can- not be permitted to stand as a valid municipal enactment.' Based upon the authority of North Bay Village V. Blackwell, supra, and City of Coral Gables v. Deschamps, supra, we hold that where the City of Miami Commission itself acts as a zoning author- ity, as under the presently enacted PAD ordin- ance, ere is a requirement for sufficient stand- Page 6 of 8 Page 5 ards in the exercise of such discretion. Therefore, the second and final question be- comes whether the present PAD ordinance lacks sufficient standards for the guidance and control of the Miami City Commission and as such is an unpermitted, arbitrary and unfettered delegation of authority to itself? At the outset, we recognize that questions of zoning policy, of what is good or bad for the city and the public, involve an exercise of police power and therefore are essentially matters within the legislative orbit. Conetta v. City of Sarasota, 400 So.2d 1051 (Fla. 2d DCA 1981); and, City of Miami Beach v. Greater Miami . Hebrew Academy, 108 So.2d 50 (Fla. 3d DCA 1958). However, in the present case, we need not con- sider whether the governing body has in fact ac- ted capriciously or arbitrarily,' because `it is the importunity, not the fact itself, which will render, an ordinance vulnerable.' ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1 st DCA 1979). Appellee -Developer contends that the present PAD ordinance has sufficient standards and cites Clarke v. Morgan, 327 So.2d 769 (F1a.1975). We have examined that decision as well as other Florida cases 5 passing upon the question of the constitutionality vel non of the enabling act under which the legislative agency performs and find that, `the general rule that a zoning ordinance must prescribe definite standards, in that ... the city council ... properly vested with discretionary rights in 'granting building permits or variances in exception to the zoning ordinance unless there has been established a definite standard to guide them in the exercise of such power.' North Bay Village v. Blackwell, supra. In other words, if definite standards are not included in the ordin- ance, it must be deemed unconstitutional as an in- valid e e ation of legi-sTa—tive power to an admin- istrative board. Clarke v. Morgan, supra. In the present case, the PAD ordinance © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e... 1/6/2009 426 So.2d 1100 426 So.2d 1100 (Cite as: 426 So.2d 1100) provides, in relevant part: (3) USES, DENSITY, OPEN SPACE AND FLOOR AREA RATIO AND OTHER REGULA- TIONS Within a Planned Area Development, any prin- cipal and accessory use, density, open space and floor area ratio and other regulations is permitted which is already permitted in the ex- isting zoning district or districts or PAD Dis- tricts as may be determined by the City Com- mission pursuant to a PAD application, in which such Planned Area Development is loc- ated. The distribution of these permitted prin- cipal and accessory uses, density, open space and floor area ratio, and other regulations or deviations therefrom, shall not be affected by existing zoning regulations, but shall be subject to the approval of the City Commission. Devi- ations from the permitted principal and access- ory uses, density, open space and floor area ra- tio *1105 and other regulations may be granted upon approval of a PAD Conditional Use ap- plication by the City Commission. Criteria to be considered by the City Commission for ap- proval of deviations as described above may in- clude but are not limited to: (a) private renew- al and redevelopment that creates a better urb- an environment through the assembly of land, (b). providing of public usable open space through the provision of plazas, parks, and walkways, (c) clearance of obsolete, blighted or undesirable building and/or uses, (d) dedica- tion of waterfront public easements at least twenty feet in width, (e) protection and en- hancement of views for the public, especially bayfront or riverfront, (f) preservation of his- torical structures and/or areas, (g) provision of terminal facilities for off-street parking of auto- mobiles and service vehicles, and (h) other public benefits. (emphasis added) While it is true that criteria are listed in the or- dinance for the City Commission consr eration, further examination reveals that such criteria are Page 7 of 8 Page 6 solely permissive and not mandatory. The key phrase—ology is `may include but are not limited to....' In statutory construction, the word `may' when given its ordinary meaning denotes a per- missive term rather than the mandatory connota- tion of the word `shall'. I.E. Fixel v. Clevenger, 285 So.2d 687, 688 (Fla. 3d DCA 1973). Moreover, the wording of the ordinance clearly permits the Commission to totally disregard the listed criteria and instead to base a decision upon criteria that are not listed or no criteria at all. Certainly, an ordinance which permits a legislat- ive agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria does not meet the standards recited in North Bay Village v. Blackwell, supra, and the other de- cisions cited above. Parenthetically, it must be further noted that the ordinance in Sec. 4(3), cited above, and in Sec. 7 (`where there are conflicts between the re- quirements of this Article and other provisions of the zoning ordinance, the provisions of this Art- icle shall apply') make it quite clear that existing zoning regulations do not apply to the PAD or- dinance. None of the requirements for the issu- ance of variances found in the zoning laws, e.g., proof of hardship or the existence of special con- ditions, apply to the PAD ordinance, and most importantly, nothing is substituted for them. Therefore, the inescapable conclusion is that the presently drafted PAD ordinance gives a de- veloper the opportunity to completely avoid the zoning laws. We have read the cases cited by the Appellees, Clarke v. Morgan, supra; Bellmeade [Bellemeade] Company v. Priddle, 503 S.W.2d 734 (Ky.App.1973); and Prince George's County v. M & B Construction Corp.., [267 Md. 338] 297 A.2d 683 (Md.1972) and find the ordinances in- volved in each of these cases contained far more specific standards than does the Miami PAD or- dinance.6 This case, in our viewpoint, is more closely © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. I http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e 1/6/2009 O ; N C V C o Cr C) � Q ;x =6' to n a o - y�-vZ) i rt O S O lib rr, ' 3 (n '0 0' M O Cr r+ 426 So.2d 1100 426 So.2d 1100 (Cite as: 426 So.2d 1100) provides, in relevant part: (3) USES, DENSITY, OPEN SPACE AND FLOOR AREA RATIO AND OTHER REGULA- TIONS Within a Planned Area Development, any prin- cipal and accessory use, density, open space and floor area ratio and other regulations is permitted which is already permitted in the ex- isting zoning district or districts or PAD Dis- tricts as may be determined by the City Com- mission pursuant to a PAD application, in which such Planned Area Development is loc- ated. The distribution of these permitted prin- cipal and accessory uses, density, open space and floor area ratio, and other regulations or deviations therefrom, shall not be affected by existing zoning regulations, but shall be subject to the approval of the City Commission. Devi- ations from the permitted principal and access- ory uses, density, open space and floor area ra- tio *1105 and other regulations may be granted upon approval of a PAD Conditional Use ap- plication by the City Commission. Criteria to be considered by the City Commission for ap- proval of deviations as described above may in- clude but are not limited to: (a) private renew- al and redevelopment that creates a better urb- an environment through the assembly of land, (b). providing of public usable open space through the provision of plazas, parks, and walkways, (c) clearance of obsolete, blighted or undesirable building and/or uses, (d) dedica- tion of waterfront public easements at least twenty feet in width, (e) protection and en- hancement of views for the public, especially bayfront or riverfront, (f) preservation of his- torical structures and/or areas, (g) provision of terminal facilities for off-street parking of auto- mobiles and service vehicles, and (h) other public benefits. (emphasis added) While it is true that criteria are listed in the or- dinance for the City Commission consr eration, further examination reveals that such criteria are Page 7 of 8 Page 6 solely permissive and not mandatory. The key phrase—ology is `may include but are not limited to....' In statutory construction, the word `may' when given its ordinary meaning denotes a per- missive term rather than the mandatory connota- tion of the word `shall'. I.E. Fixel v. Clevenger, 285 So.2d 687, 688 (Fla. 3d DCA 1973). Moreover, the wording of the ordinance clearly permits the Commission to totally disregard the listed criteria and instead to base a decision upon criteria that are not listed or no criteria at all. Certainly, an ordinance which permits a legislat- ive agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria does not meet the standards recited in North Bay Village v. Blackwell, supra, and the other de- cisions cited above. Parenthetically, it must be further noted that the ordinance in Sec. 4(3), cited above, and in Sec. 7 (`where there are conflicts between the re- quirements of this Article and other provisions of the zoning ordinance, the provisions of this Art- icle shall apply') make it quite clear that existing zoning regulations do not apply to the PAD or- dinance. None of the requirements for the issu- ance of variances found in the zoning laws, e.g., proof of hardship or the existence of special con- ditions, apply to the PAD ordinance, and most importantly, nothing is substituted for them. Therefore, the inescapable conclusion is that the presently drafted PAD ordinance gives a de- veloper the opportunity to completely avoid the zoning laws. We have read the cases cited by the Appellees, Clarke v. Morgan, supra; Bellmeade [Bellemeade] Company v. Priddle, 503 S.W.2d 734 (Ky.App.1973); and Prince George's County v. M & B Construction Corp.., [267 Md. 338] 297 A.2d 683 (Md.1972) and find the ordinances in- volved in each of these cases contained far more specific standards than does the Miami PAD or- dinance.6 This case, in our viewpoint, is more closely © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. I http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e 1/6/2009 a Page 8 of 8 426 So.2d 1100 Page 7 426 So.2d 1100 (Cite as: 426 So.2d 1100) analogous to the recent opinion in ABC Li- quor[s], Inc. v. City of Ocala, supra. Without ex- tensively reviewing this well-written decision, we believe that its logic and legal analysis is applic- able to the present case. FN^ Indeed, as previously discussed, Save-Brickell does not even possess stand- ing to raise such question. FN5 Cf. Josephson v. Autrey, 96 So.2d 784 (F1a.1957); North Bay Village v. Blackwell, 88 So.2d 524 (F1a.1956); Tau Alpha Hold- ing Corp. v. Bd. of Adjustments of City of Gainesville, 126 Fla. 858, 171 So. 819 (1937); and, Safer v. City of Jacksonville, 237 So.2d 8 (Fla. 1 st DCA 1970). FN6 For example, the present ccase is not analogous to Clarke v. Morgan, supra, where the Court upheld a statute where it provided standards, in that, among other things, it authorized variances only if changes in the use of property would not be contrary to public interest, special con- ditions justified changes and changes would not become effective until it had been submitted to county planning com- mission for review and recommendation. Certiorari denied. F1a.App. 3 Dist.,1983. City of Miami v. Save Brickell Ave., Inc. 426 So.2d 1100 END OF DOCUMENT Submitted into the public record in connection with item SP.1, SP.2 & SP.3 on 08-06-09 Priscilla A. Thompson © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744a5680000011 ead9c2e... 1/6/2009