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HomeMy WebLinkAboutOctober 18, 2005 Circuit Court OrderNOT FINAL UNTIL TIME EXPIRES TO FILE RE -HEARING MOTION AND IF FILED, DISPOSED OF. MORNINGSIDE DEVELOPMENT, LLC, Petitioner, vs. CITY OF MIAMI, FLORIDA a Florida municipal corporation, MORNINGSIDE CIVIC ASSOCIATION, INC., a Florida corporation, ROD ALON, ROB STEBBINS, SCOTT CRAWFORD and ELVIS CRUZ, Respondents, IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA. APPELLATE DIVISION CASE NO.: 05-186 AP RESOLUTON NO.: R-05-0155 IKE ORIGIN/AL FILED ON OCT 18 2005 IN THE OFFICE OF CIRCUIT COUPT DAnF 17r, F. Opinion filed OCT 1 8 mnS, 2005. A Petition For Writ of Certiorari seeking to quash Resolution No. R-05-0155 of the Miami City Commission. Douglas M. Halsey, Esq. Evan M. Goldberg, Esq. Christopher N. Dawson, Esq. White and Case, LLP., Attorney for Petitioner. Jorge L. Fernandez, City Attorney, Rafael E. Suarez -Rivas, Assistant City Attorney, Attorneys for Respondent, City of Miami, Florida. Andrew W.I. Dickman, Esq., Law Offices of Andrew Dickman, P.A., Attorney for Respondents Momingside Civic Association, Inc., Rod Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz. 1 UPON MOTION FOR CLARIFICATION Before GORDON, FARINA, and FIERRO, JJ. PER CURIAM. Petitioner, Morningside Development, LLC, moves for clarification of this court's opinion filed August 23, 2005, requesting that this court clarify the nature of the proceedings to be conducted by the City Commission on remand of the cause. We grant the motion for clarification and substitute the following opinion for that of our August 23, 2005 opinion. Morningside Development, LLC has petitioned this court for a writ of certiorari quashing the Miami City Commission's decision set forth in Resolution R-05-0155. Morningside Development is the owner of property located on Biscayne Boulevard between 53`i Street and 55`h Street in Miami, Florida (the "property"). The property is subject to the City of Miami's Zoning Ordinance (MZO). It is located in an area zoned "O", or office, with a portion of the parcel in the R-1, or residential, zone. Additionally, the property is subject to the SD-9 Biscayne Boulevard North Overlay District Regulations. Pursuant to the SD-9 regulations, Morningside Development is required to obtain a Class II Special Permit prior to commencing any new construction. As a consequence, Morningside Development submitted an application to the City of Miami Planning Director for a Class II Special Permit for the construction of two mixed -use buildings on the property with retail space on the ground floor. The Miami Zoning Department (MZD) reviewed the application. The MZD issued a Class II Special Permit Zoning Referral stating that the application was found to be in compliance with all applicable zoning regulations and required a Class II Special Permit. Shortly thereafter, the first amendment to the SD-9 district was adopted. This amendment (the Height Ordinance) imposed a ninety-five (95) foot height restriction for any new residential 2 development in the portion of the SD-9 district where the property is located. Although Momingside Development contended that the Height Ordinance was inapplicable to its completed application, it voluntarily revised its application to comply with the 95' Height Ordinance by submitting a new application for a Class II Special Permit for buildings 92 feet in height. On August 2, 2004, the MZD issued a Class II Special Permit Zoning Referral stating that it was in compliance with all the applicable zoning regulations and required a Class II Special Peiniiit. On August 23, 2004, Morningside Development filed the application and zoning referral with the Planning Director. While its application was pending, a second amendment to the SD-9 district regulations was adopted. This second amendment imposed, among other things, a height limitation on any garage structure abutting an R-1 district to a height of 25 feet on the wall abutting an R-1 district. It also permitted a roof angle of 45 degrees upward from the top of the wall. By the Garage Height Ordinance's owns terms, it did not take effect until almost 2 and a half months after Morningside Development had submitted its completed application. On October 27, 2004, the Planning Director granted Morningside Development a Class II Special Permit with conditions. The Momingside Civic Association appealed the issuance of the permit to the City of Miami's Zoning Board. The Zoning Board heard the appeal on Dec 13, 2004, voted to deny the appeal, and uphold the Planning Director's issuance of the special permit. Next, the Morningside Civic Association appealed the Zoning Board's decision to the City Commission. At the hearing before the Commission, the Association presented new evidence that was not presented at the hearing before the Zoning Board. The Commission granted the appeal, thereby reversing the Zoning Board's decision to uphold the Planning 3 Director's issuance of the special permit. As a result, Morningside Development has petitioned this court for a writ of certiorari quashing the Commission's decision as set forth in Resolution R-05-0155. The circuit court's certiorari review of an administrative decision is governed by a three- part standard of review: (1) whether procedural due process is accorded; (2) whether the administrative findings and judgment are supported by competent, substantial evidence; and (3) whether the ssenis reauiwi— - -' ^E E.,e law have been observed. Haines City Community Dev. dos, 058 So.2d 523 (Fla. 1995). The circuit court as not - once nor substitute its own judgment for that of the agency. Id at 530. One pertinent question before this court is whether the respondent, the City, departed from the essential requirements of the law by failing to provide written findings of fact or determinations to support its reversal of the Zoning Board's decision as required by Section 1305 of the Zoning Ordinance. The respondents correctly argue that case law holds that an administrative agency is not required to make findings of fact to support of its decision. See Board of County Commissioners v. Synder, 627 So. 2d 469 (Fla. 1993). However, if an administrative agency enacts an ordinance that requires written findings of fact, it cannot unilaterally deny a citizen the protection of the ordinance. See Gulf & Eastern Development Corp. v. City of Ft. Lauderdale, 354 So. 2d 57 (Fla. 1978); Reyes v. City of Miami 2 Fla. L. Weekly Supp. 51la (Fla. l lth Cir. Ct. Oct. 21, 1994). A decision to do so is a departure from the essential requirements of the law. See Rosa Hotel Devs. Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 511 a (Fla. 15th Cir. Ct. June 12, 2003). Thus, an administrative agency that fails to follow its own procedures has departed from the essential requirements of the law. Id. Section 1305 of the Zoning Ordinance, regarding Class II Special Permits, requires that: City agents, agencies, or boards charged with decisions concerning special permits shall 4 make, or cause to be made written findings and determinations concerning such of the following matters that are applicable in the case... When examining the plain wording of the ordinance, it states that a city agency shall make written findings and deteiiiiinations when charged with decisions regarding special permits. Thus, this ordinance imposes a separate, distinct duty or obligation on the Commission to make written findings and determinations when making decisions concerning special permits. Here, the Commission's decision, as stated in Resolution R-05-0155, finds as follows: "... the Class 11 Special Permit does not meet the applicable requirements of the Zoning Ordinance No. 11000, as amended, and deems it advisable and in the best interest of the, general welfare of the City of Miami and its inhabitants to grant the appeal, reverse the decision of the Zoning Board and Planning Director and deny the Class 1I Special Peimit as hereinafter set forth;" Although the Resolution makes a general finding that the application does not meet the requirements of the Zoning Ordinance No. 11000 as amended, it fails to identify a single code provision on which the Commission based its decision. As mentioned above, the City was not required to impose on its commission the obligations to make findings of fact to support its decision. However, once it enacted the ordinance and created this safeguard, it cannot now unilaterally deny Morningside Development its protection. Its decision not to provide a detailed explanation of its reason for quashing both the City of Miami Zoning Board's and Planning Director's decision granting the Class II Special Permit was a departure from the essential requirements of the law. Another pertinent question is whether the Commission departed from the essential requirements of the law by conducting a de novo hearing and considering evidence not before the Zoning Board. Petitioner argues that the Commission exceeded its authority under the zoning ordinance by conducting a de novo hearing and considering evidence not before the Zoning Board. In 5 contrast, respondent argues that since the zoning ordinance does not expressly limit the Commission's scope of review, it is entitled to conduct a de novo hearing and consider new evidence. It is well settled that the basic rules of statutory interpretation are applicable to interpretation of municipal ordinances. See Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552, 553 (Fla. 1973). Statutes and ordinances should be given their plain and ordinary meaning. Id. at 554; See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). However, if the language of a statute or ordinance is ambiguous, the court may look to extrinsic aids and to the rules of statutory construction to determine the ordinance's intent. See Holly v. Auld, 450 So. 2d at 219. Further, if the legislature has used a term in one section, but omits it from another section of the same statute, the court will not imply it where it has been excluded. See Beach v. Great Western Bank, 692 So. 2d 146, 152 (Fla. 1997). Additionally, the court may infer that if the legislature, or City, had intended something, it could have and would have said so. See Smith v. Board of County Comm 'rs of Putman County, Fla., 8 Fla. L. Weekly. Supp. 809a (Fla. 7th Cir. Ct. April 18, 2001). Section 1201 of the Zoning ordinance, in pertinent part, reads as follows: Under this zoning ordinance, the city commission shall have only the following duties: [emphasis supplied] (4) Reviewing, upon request, decisions of the Zoning Board when it serves in an appellate capacity with respect to decisions of ... the director of planning, building and zoning[.] As noted above, when the language of an ordinance is clear and unambiguous, it must be given its plain and ordinary meaning. When reviewing the plain language of this ordinance, the use of the word "only" appears to limit the City Commission's scope of review to those duties expressly provided for in the ordinance. Further, the term "review" indicates that the intent of the 6 ordinance was to provide a traditional appellate review of the factual matters offered to support the Zoning Board's decision. Even if this court finds the language to be ambiguous, it may infer that if the City had intended for the Commission's scope of review to include conducting a de novo hearing and considering new evidence, it would have said so. Further, section 1806 of the City's zoning ordinance, which expressly describes the powers of the Zoning Board, states that "New materials may be received by the zoning board where such materials are pertinent to the determination of the appeal." Thus, the code expressly provides for the Zoning Board to receive new materials, but fails to provide for the Commission to receive new materials. Since the zoning ordinance expressly included this wording in one section of the code, but clearly omits it from the other section of the same code, then this court should not imply it where it has been excluded. Based on the foregoing, the city commission's scope of review is limited to a traditional appellate review of the Zoning Board's decision under the zoning ordinance. Consequently, the Commission exceeded its scope of authority under the zoning code by conducting a de novo hearing and considering new evidence that had not been presented before the Zoning Board. By exceeding its jurisdiction, it departed from the essential requirements of the law. As noted earlier, an administrative agency that fails to follow its own procedures has departed from the essential requirements of the law. See Rosa Hotel Devs. Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 511 a (Fla. 15th Cir. Ct. June 12, 2003). Therefore, we hereby QUASH the Commission's decision as set forth in Resolution No. R-05-0155, and REMAND this cause for proceedings consistent with this opinion. 1 � Fu uSl4ED TO COONSEL OF RECORD AND TO ANY PARSR Bi COUNSEL. 7