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NOT FINAL UNTIL TIME EXPIRES TO FILE RE -HEARING MOTION, AND IF FILED, DISPOSED OF. MORNINGSLDE CIVIC ASSOCIATION, INC.; a Florida not for profit corporation; JAMES D.WING; and CESAR A. HERNANDEZ-CANTON, Petitioners, vs. CITY OF MIAMI COMMISSION, CITY OF MIAMI, a Florida municipal corporation, KUBIK, LLC, and BISCAYNE PREMIER INVESTMENTS, INC., Respondents. Opinion filed: January 25, 2005 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADS COUNTY, FLORIDA APPELLATE DIVISION CASE NO.: 04-352 AP RESOLUTION NO. R-04-0383 err 70. A Petition for Writ of Certiorari from the CITY OF MIAMI COMMISSION, MIAMI- DADE COUNTY, FLORIDA. ANDREW DICKMAN, ESQ. and JAMES D. WING, ESQ., for Petitioners. ELLIOT H. SCHERKER, ESQ., and REGINE MONESTIME, ESQ., for Respondents. BEFORE THOMAS M. CARNEY, MARIA ESPINOSA DENNIS, and DAVID C. MILLER, JJ. MILLER, DAVID, J. Kubik, LLC and Biscayne Premier Investments, Inc. ("Kubik") own property located at 5600-5780 Biscayne Boulevard. Kubik sought a Major Use Special Permit (MUSP) and a special exception from Appellee City of Miami for a 14-story twin -tower residential project, "Kubik at Momingside," which would include recreation facilities (an exercise room, two swimming pools, an aviary, a pedestrian plaza, and a garden), parking, and ground floor commercial elements. The present zoning designation allows for high -density mixed -use development (meaning that there is no height limitation for development on the property and the zoning code allows for up to 150 dwelling units per acre). The City's Planning Board (PAB) recommended approval of the developer's application, with certain additional conditions. The City's Urban Development Board also unanimously approved of both of Kubik's design options. The developer met with City staff and various boards, resulting in approval for the project from the Internal Design Review Board and the Large Scale Development Committee, among other entities. The City Commission had three public hearings on the application, during which, Petitioners, area residents, and expert witnesses, were able to speak out for and against the proposal. The Commission ultimately found that the project was in conformity with both the City's Comprehensive Plan and existing zoning, and that the project satisfied all governing regulations. The project was unanimously approved; the development order set eleven conditions with which the project must comply. This petition followed. This panel concludes, based on a review of the record and on the applicable legal standard, that the petition for writ of certiorari must be denied. On certiorari review of a local government's quasi-judicial decision, the Court is obligated to apply the three-part standard of review of City of Deerfield Beach v. yaillant, 419 So. 2d 624 (Fla. 1982); Board of County Commissioners of Brevard County v. Snyder, 627 So, 2d 469, 476 (Fla. 1993). The Court must determine: (i) whether the administrative tribunal accorded due process of law; (ii) whether the administrative tribunal applied the correct law, i.e.. whether the essential requirements of law were observed in the administrative proceedings, and (iii) whether the decision of the administrative tribunalis supported by substantial competent evidence. See Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270 (Fla. 2001); Raines City Community Derv. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). The City Commission's decision clearly meets these standards. The City afforded all interested parties due process of law by allowing the petitioners and the respondents to be heard at every stage of the proceedings. After a lengthy review process, and numerous meetings between the developer and various citizen neighborhood groups, the Commission held three separate public hearings on the matter. One hearing was held on April 22, 2004, where testimony for and against the project was offered. At that hearing, petitioners' lawyer requested that the matter be deferred, due to an alleged lack of time to prepare. The Commission ultimately voted to continue consideration of the application to a later date. - The second public hearing was on May 6, 2004. At that time, 16 individuals and one real estate appraiser spoke in opposition to the project. Some speakers argued that the project failed to meet the MUSP standards, and that the project was too large and too overwhelming for the neighborhood. Others contended that the Commission had insufficient information on which to base its decision. Some speakers objected to particular aspects of the design, such as the plans for ingress/egress, or lighting. Kubik responded, presenting witnesses and supportive area residents, In the end, Commissioner Winton, the Commissioner for the district in which Kubik's property is located, moved to continue the hearing as he had "... struggled [to] understand [the] issue about scale," The Commission adopted Winton's motion. The third public hearing was held on June 10, 2004, to allow for the argument of counsel and a presentation by the City's staff. Petitioners' counsel, as well as Kubik's counsel, addressed the Commission. Each side proffered a scale model rendition of the project. Once the hearing was closed to public debate, Commissioner Winton expressed his opinion that while he would have preferred a community consensus, the project was compatible with the surrounding neighborhood. He moved to approve the project, with various conditions. Thereafter, the motion to approve Kubik's application, with conditions, passed unanimously. Petitioners were given ample opportunity, both as individuals and through counsel, to raise their concerns with Kubik and with the City Commission. They were afforded adequate due process. The next consideration on certiorari review is whether the commission observed the essential requirements of law. Here, it is evident from the City's. resolution, R-04-- 0383, that the City did apply the correct law under the circumstances. The governing body of law can be found in the City Zoning Code, sections 13051 and 17032. The 'Section 1305, which falls under "Article 13, Special Permits; Generally", reads as follows: Sec. 1305. Considerations generally; standards; findings and determinations required. As appropriate to the nature of the special permit involved and the particular circumstances of the case, the following considerations and standards shall apply generally, in addition to any other standards and requirements set forth concerning the class or kind of permit being considered. City agents, agencies, or boards charges with decisions concerning special permits shall make, or cause to be made, written findings and determinations concerning such of the following matters as arc applicable in the case, shall reflect such considerations and standards in their decisions as to issuance of permits, with or without conditions and safeguards, or denial of applications. 1305,1 Ingress and egress. Review for adequacy shall be given to ingress and egress to the property and structure and uses thereon, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fie or other emergency. 1305.2 Offstreet parking and loading_ Review for adequacy shall be given to offstreet parking and loading facilities as related to adjacent streets, with particular reference to automotive and pedestrian safety and convenience, internal traffic flow and control, arrangement in relation to access in case of fire or other emergency, and screening and landscaping. 1305.3 Refuse and service areas. Review for adequacy shall be given to the location, scale, design, and screening of refuse and service areas; to the manner in which refuse is to be stored; and to the manner and timing of refuse collection and deliveries; shipment, or other service activities, as such matters relate to the location and nature of uses on adjoining properties and to the location and character of adjoining public ways. 1305.4 Signs and lighting. Review for adequacy shall be given to the number, size, character, location, and orientation of proposed signs, and of proposed lighting for signs and premises, with particular reference to traffic safety, glare, and compatibility and harmony with adjoining and nearby property and the character of the area. 1305.5 Utilities. Review for adequacy shall be given to utilities required, with particular reference to availability and capacity of systems, location of connections, and potentially adverse appearance or other adverse effects on adjoining and nearby property and the character of the area. 1305.6 Drainage. Review for adequacy shall be given to provision for drainage, with particular reference to effect on adjoining and nearby properties and on general drainage systems in the area. Where major drainage volumes appear likely and capacity of available systems is found marginal or inadequate, consideration shall be given to possibilities for recharge of groundwater supply on the property, temporary retention with gradual discharge, or other remedial measures. 7105 7 Prpseuation enatural features. Review for appropriateness shall be given to provision for the preservation of existing vegetation and geological features whenever possible. 1305.8 Control of potentially adverse effects generally. In addition to the review of detailed items indicated above, as appropriate to the particular class or kind of special permit and the circumstances of the particular case, review for appropriateness shall be given to potentially adverse effects generally en adjoining and nearby properties, the area, the neighborhood, or the city, of the use of occupancy as proposed, or its location, construction, design, character, scale or manner of operation. Where such potentially adverse effects are found, consideration shall be given to special remedial measures appropriate in the particular circumstances of the case, including screening or buffering, landscaping, control of manner or hours of operation, alteration of proposed design or construction of buildings, relocation of proposed open space or alteration of use of such space, or such other measures as are required to assure that such potential adverse effects will be eliminated or minimized to the maximum extent reasonable feasible, and that the use of occupancy will be compatible and harmonious with other development in the area to the degree which will avoid substantial depreciation of the value of nearby property. Commission's resolution, allowing the Kubik project to proceed, tracks the language of the provisions. While some of the conclusions in the resolution are not backed up with specific facts, the Florida Supreme Court has held that the absence of specific factftnding (Ord, No. 10863, § 1, 3-2g-91; Ord. No. 10976, § 1, 4-2©-92) 2 Article 17 of the City of Miami Zoning Code is entitled "Major Use Special Permits; Detailed Requirements." The text of section 1703 reads as follows: Sec. 1703. Commission disposition of application; consideration of recommendations; findings required. The city conunission may approve an application for Major Use Special Permit as submitted, deny the application as submitted, or approve the application with attached modifications, conditions, or safeguards, giving full consideration to the recommendations of boards, agencies, and/or departments. In reaching a decision on the application as submitted, the commission shall make a determination as to whether: (a) The development will be in conforrnity with, or necessitate a change in, the adopted Mi Comprehensive Plan; and (b) The development is in accord with, or will necessitate a change of the district zoning classification. In arriving at such determinations, the commission shalt consider, where applicable, the standards and criteria set forth in section 1305 of this ordinance, and the standards set by this ordinance applicable to the particular actions or charges as proposed, as well at the following standards: (1) Whether the development will have a favorable impact on the economy of the city; (2) Whether the development will efficiently use public transportation facilities; (3) Whether the development will favorably affect the need for people to find adequate housing reasonably accessible to their places of employment; -(4)-Whether-tlra-development-will ficierttly ems' (5) Whether the development will have a favorable impact on the environment and natural resources of the city; (6) Whether the development will adversely affect living conditions in the neighborhood; and (7) Whether the development will adversely affect public safety. Before approving the application, the commission shall state that, based on its determinations, the public welfare will be served by the proposed development; and shall clearly list its findings an the proposed development derived from section 1305 and (1) through (7) above. When a complete application for Major Use Special Permit is approved as submitted, or approved with attached modifications, conditions, or safeguards, the action of the commission shall specify clearly and order any changes in the comprehensive plan; any changes in zoning classification or other city ordinances or regulations; any further implementing actions and if so, their nature and requirements; and specifications as to timing of development under the Major Land Use Special Permit. (Ord. No. 10771, § 1, 7-26-90; Ord, No. 10863, § 1, 3-28-91; Ord. No. 11079, § 4, 7-22-93) by an administrative tribunal is not error and does not interfere with a reviewing court's ability to pass upon the correctness of the tribunal's ruling. See Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993). It is clear from a review of the Planning Fact Sheet submitted to the City Commission by the City of Miami Planning and Zoning Department that the City Commission considered all relevant legal factors prior to voting. Some issues considered by the professional staff, and presented to the Commission include: convenient access to Metrorail, locations of driveways for ingress and egress, traffic studies, height of proposed development in relation to existing neighborhood, security and safety issues, study by Department of Solid Waste, Minority Participation and Employment Plan, Public Works study and landscaping issues. In the supporting resolution, the Commission specifically found that the favorable impact the project will have on the City, it will efficiently use public transportation facilities, it will not negatively impact the environment and natural resources of the City or adversely affect living conditions in the neighborhood, and the project will favorably affect the need for people to find adequate housing reasonably accessible to their places of employment. The commission also found that any potentially adverse effects of the project arising from safety and security, fire protection and life safety, solid waste, heritage conservation, trees, shoreline development, minority participation and employment, and minority contractor/subcontractor participation will be mitigated through compliance with the conditions of the Major Use Special Permit. As the factors of sections 1305 and 1703 of the City Zoning Code were properly and thoroughly considered by the Cornrnission prior to voting on the Kubik project, it is clear that the essential requirements of law were observed in the administrative proceedings, The final factor on certiorari review is whether the decision of the administrative tribunal is supported by competent substantial evidence; see Dusseau, 794 So. 2d 1270 (Fla. 2001); Haines, 658 So. 2d at 530 (Fla. 1995), supra. Additionally, on certiorari, it is only the existence of competent substantial evidence in support of the decision, and not the quantity and/or quality of the evidence in opposition, that matters. See Dusseau at 1274-75. The governing standard requires this Court to determine whether there was competent substantial evidence sufficient to support the Commission's decision, not whether there was evidence in opposition. Here, Kubik's application materials, including photographs, models, and maps, supplemental filings, expert testimony and reports, multiple and favorable staff recommendations, and support from area residents satisfies the standard. The Commission was entitled to accept this competent substantial evidence, and to reject any other evidence presented at the hearing. The competent substantial evidence standard is satisfied where "the evidence relied upon to sustain the ultimate finding is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." See DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The City's professional staff personal, such as Planning and Zoning, considered all relevant factors and recommended approval of the project, with conditions. Zoning staff recommendations and reports can serve as competent substantial evidence. See Dusseau, 794 So. 2d 1270 (Fla. 2001); Metropolitan Dade County v. Fuller, 515 So. 2d 1312, 1313-14 (Fla. 3d DCA 1987). This Court has applied the appropriate three part standard for certiorari review as to the decision made by the Miami City Commission regarding Kubik' zoning application. As the Commission has complied with all three parts of the applicable law, Petitioners' Petition for Writ of Certiorari must be DENIED, Judges CARNEY and ESPINOSA DENNIS concur, CONES FUIWSIXEP TO COUNSEL OF RECORD AN .Tiv_') ANY PARTY NOT REMESENTED BY COUNSEL NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005 MORNINGSIDE CIVIC ASSOCIATION, INC., JAMES D. WING, and CESAR A. HERNANDEZ-CANTON, Petitioners, vs. CITY OF MIAMI COMMISSION, CITY OF MIAMI, KUBIK, LLC, AND BISCAYNE PREMIER INVESTMENTS, INC., Respondents. Opinion filed December 21, 2005. CASE NO. 3D05-138I LOWER TRIBUNAL NO. 04-352 A Writ of Certiorari to the Circuit Court for Miami --Dade County, Thomas M. Carney, Maria Espinosa Dennis, and David C. Miller, Judges. Baker & McKenzie and Donald Hayden; Holland & Knight and James D. Wing, for petitioners. Jorge L. Fernandez, City Attorney and Rafael Suarez -Rivas, Assistant City Attorney; Greenberg Traurig, P.A., and Elliot H. Scherker and Lucia Dougherty, for respondents. Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ. On Rehearing Granted COPE, C.J. Can consideration of the petitioners' motion for rehearing, we grant the motion and withdraw our previous order denying certiorari . We substitute the foliowing opinion. Petitioners Morningside Civic Association, James D. Wing and Cesar Hernandez -Canton (collectively "Morningside") petition for a writ of certiorari to quash a decision of the appellate division of the circuit court. The appellate division denied Morningside's "first tier" petition for certiorari which sought to quash a zoning resolution of the City of Miami. The zoning resolution, to which Morningside objected, granted a major use special permit ("MUSP") for respondents Kubik, LLC and Biscayne Premier Investments, Inc. (collectively "the developer"). We conclude that the circuit court panel applied the wrong ordinance in denying the petition and thus departed from the essential requirements of law. The developer filed an initial application in the fall of 2003. In December 2003 the Planning Advisory Board recommended that the application be denied, so the developer decided to modify its proposal.. During this time the City was considering amendments to its zoning ordinance, including section 1305 of the Miami City Code. The amended version of the ordinance went into effect in January, 2004. The amended version of the ordinance requires 2 that the City Commission make certain written-: findings with regard to seven different "design criteria." 0n February 10, 2004--after the effective date of the amended ordinance --the developer submitted the revised application which included new architectural plans for the site. The letter submitting the new plans stated that this was a "substantial modification." When the application came before the City Commission for hearing, a presentation by Morningside quoted the criteria from the new ordinance. Further, the transcript indicates that the speakers representing Morningside divided their presentation so as to have each speaker address one of the relevant seven criteria from the new ordinance. Thus the correct ordinance was addressed in the proceedings below. 1 Specifically, the 2004 version of section 1305 states: [T]he City agent, board or commission that is charged with decisions concerning each of the special permits shall review the proposal before them and shall make, or cause to be made, written findings and determinations in accordance with the established applicable criteria set forth in this zoning ordinance and the City Code. [Emphasis added). Section 1305.2 then sets forth `design review criteria" for: 1) Site and Urban Planning; 2) Architecture and Landscape Architecture; 3) Pedestrian Oriented Development; 4) Streets and Open Space; 5) Vehicular Access and Parking; 6) Screening [of parking] and 7) S.ignage and lighting; and B) Preservation of Natural Features. 3 The. City Commission approved the project without making any of the written findings required by amended section 1305. Morningside petitioned for certiorari in the circuit court appellate division seeking to quash the resolution. In the petition Morningside again addressed the new ordinance. In its response in the appellate division, the developer simply inserted a footnote saying that the old ordinance was the correct one. The circuit court appellate panel denied the petition and went on to state: The next consideration on certiorari review is whether the commission observed the essential requirements of the law. Here, it is evident from the City's resolution, R-04- 0383, that the City did apply the correct law under the circumstances. The governing body of law can be found in the City's Zoning Code, sections 1305 and 1703. Opinion at 4. The panel then set forth the pre-2004 version of section 1305 in a page -long footnote and found that the zoning resolution complied with that language. By motion for rehearing in the circuit court appellate division, Morningside pointed out that the court had quoted the wrong version of the ordinance. The circuit court appellate division denied the motion for rehearing without explanation. Morningside then petitioned for certiorari in this court. Morningside argues that the 2004 version of the ordinance applies to this case and that the circuit courtappellate division applied the incorrect law by relying on the pre-2004 version of section 1305. We agree. The question before us is which version of section 1305 applies to this case. The developer initially filed a complete application in the fall of 2003. The developer takes the position that since it submitted a complete application in 2003, it follows that the pre-january 2004 version of the ordinance is applicable. However, after the Planning Advisory Board recommended that the application be denied, the developer made the decision to modify its proposal rather than pursuing the original proposal before the City Commission. In January 2004 the amendments to section 1305 took effect. The modified application was submitted thereafter, on February 10, 2004. The City's zoning resolution states, in the second "whereas" clause, that "on February 10, 2004, • [the developer] submitted a. complete Application for the previously reviewed Major Use Special Permit application 11 (Emphasis added). By the terms of the resolution, the City 5 treated the application as being complete on February 10, 20€ 4 . This was after the effective date of the new ordinance.z Section 1305.2.1 of the zoning code provides in substance for grandfather of "any complete applicat tiled prior to January 1, 2004 . . n development (Emphasis added). As stated in the zoning resolution, the application in this case was not complete until February 10, 2004. That being so, the January 2004 amendments are applicable to this application. The exercise of "second -tier" certiorari jurisdiction is appropriate where the circuit court appellate division has applied the incorrect law. See Miami -Dade County v. Omriipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The appellate division opinion makes clear that the appellate division panel relied on the pre -January 2004 version of section 1305, whereas the panel should have applied the amended version which went into effect in January 2004. The developer argues that Morningside's position has not been properly preserved for appellate review. We disagree. Morningside relied on the correct version of section 1305 when 2 Additionally, in Section 7 of the resolution, the Commission states: "The application for a Major Use Special Permit, which was submitted on February 10, 2004, and on file with the Department of Planning and Zoning in the City of Miami, Florida, shall be relied upon generally for administrative interpretations and is incorporated by reference." 6 it was de ore the City Commission, and raised the paint again in the circuit court appellate division. For the stated reasons, we quash the ruling of the circuit court appellate division. Certiorari granted. 7 IN THE DISTRICT COURT OP APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006 MARCH 22, 2006 MORNINGSIDE CIVIC ASSOC., INC., ETC., ET AL., Appellant(s)/Petitioner(s), VS. CITY OF MIAMI COMM., ETC., ET AL., Appellee(s)/Respondent(s). CASE NO.: 3D05-1381 LOWER TRIBUNAL NO. 04-352 AP Upon consideration, respondentsmotion for clarification is hereby granted. The matter shall be remanded by the Circuit Court to the City Commission for further proceedings consistant with this Court's opinion. COPE, C.J., and SHEPHERD and ROTHENBERG, JJ., concur. cc: Donald J. Hayden James D. Wing Elliot H. Scherker Rafael Suarez -Rivas Michael A. Sastre Hon. David C. Miller Hon, Maria Espinosa Dennis Hon, Thomas M. Carney ia MORN1NGSIDE CIVIC ASSOCIATION, INC., a Florida not for profit corporation, JAMES D. WING, and CESAR A. HERNANDEZ-CANTON, Petitioners, vs, IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA, APPELLATE DIVISION April 26, 2006 CASE NO.: 04-352 AP MIAMI CITY COMMISSION, CITY OF MIAMI, a Florida municipal corporation, KUBIK, LLC. and BISCAYNE PREMIER INVESTMEMENTS, INC., Respondents. LOWER TRIBUNAL NO.: 030415 Upon consideration by the court, Respondents', Kubic, LLC and Biscayne Premier Investments, Inc. Motion to Remand Cause to the City of Miami Commission for Further Proceedings is hereby granted. DAVID C. MILLER and MARIA ESPINOSA DENNIS, JJ., concur. A True Copy ATTEST: yelihe Abct7Nasear CC: ELLIOT ...?OFIERKER, ESQUIRE LUCIA DOUdHERTY, ESQUIRE DONALD J.'HAYDEN, ESQUIRE JAMES D. WING, ESQUIRE JORGE L. PERNANDEZ, MIAMI CITY ATTORNEY RAFAEL SUAREZ-RIVAS, ASSISTANT CITY ATTORNEY MICHAEL SASTRE, ESQUIRE Order Grt Mtn.dot