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Home My WebLink AboutThird District Court of Appeal Decisiont t..- 0 1 State of Florida, July 'Term, A.D.2007 Opinion r;7, �in��f.e� October ] << 2007. Nei final until disposition tit Timely filed r potion for rehearing. No. 3D07-465 Lower Tribunal No. 06-291 Cesar A. Hernandez -Canton, Elvis Cruz, William Hopper, Jack Wolfe, and Al Sasiadeck, Petitioners, VS. Miami City Commission, City of Miami, Kubik, LLC, and Biscayne Premier Investments, Inc., Respondents. A Writ of Certiorari to the Circuit Court for Miami -Dade County, Jeffrey Rosinek, Ivan F, Fernandez, and J. Douglas Chumbley, Judges. Michael A. Sastre, for petitioners. Greenberg Traurig, P.A., and Elliot H. Scherker and Lucia Dougherty and Brigid F, Cech Samole; Jorge L. Fernandez, City Attorney, and Rafael Suarez - Rivas, Assistant City Attorney, for respondents. Before COPE, RAMIREZ, and SALTER, JJ. Co:. Inc COPE The question before us this proceeding is whether the Miami City n misinterpreted this court's prior ruling in Mornin side Civic Ass'n® Cite of Miami Coni n'n, 917 So. 2d 293 (Fla, 3d DCA 2005 ), We conclude that our prior rulin? a, misinterpreted. We therefore remand for a new hearing. In 2004, the Miami City Commission enacted a zoning resolution granting approval for a development proposed by Kubik, LLC and Biscayne Premier Investments, Inc. (collectively "the developer"). At the hearing before the City Commission, there was a disagreement about which version of Section 1305 of the Miami City Code would be applicable. Section 1305 had been amended in January 2004. The developer and the City Commission took the position that the old version was applicable. The objectors argued that the new version was applicable. Id, at 294. The City Commission applied the old version and approved the project. The objectors sought certiorari review in the circuit court appellate division, which denied certiorari. On second -tier certiorari review in this court, we concluded that the new version of Section 1305 was the applicable version. Ida Our court concluded that the City Commission and the appellate division of the circuit court had applied the incorrect law. Id, We quashed the ruling of the appellate division of the circuit 2 cour, ulipuNisnec (rcieT on mccoor, 'Joy CiarificactIon. 11-le matter shall be remanded by the Circuit Court to the Commission for further proceedings consistent with this coures opinion." Order, March 22, 2006. When the matter returned to the City Commission, there was a disagreement show how io n1enrei COM1's ojm0fl Tbe Atiorne:\ 1001; the view ihi our court had left the 2004 zoning resolution intact, and had simply remanded so that the City Commission could make findings in support of its 2004 resolution. The objectors argued that the earlier zoning resolution could not stand in view of this court's determination that the 2004 resolution was based on the wrong law, i.e., the wrong version of Section 1305, The City Commission accepted the proposition that its 2004 zoning resolution had not been overturned. The City Commission enacted a new zoning resolution which made the findings contemplated by the new version of Section 1305. The objectors sought certiorari review in the appellate division of the circuit court, which was denied. The objectors then sought second -tier certiorari review in this court. The petition for certiorari is well taken. We must respectfully say that our prior opinion was misinterpreted in the proceedings on remand. In order for the developer's application to be approved, it was necessary for the developer to demonstrate compliance with the new version 3 =e lion 30:. . t.; t f,.. Section 1305, it follows that the 2004 zoning resolution was defe be set aside, It was necessary for the City Commission to conduct a new hearing and make a determination whether the developer's proposed project does, or does n , c' )7f�i. iol�ar?jr, i�"'ti7 the ersion of Sep on 1 0f t 1_ i 0 and had to We therefore grant certiorari and quash the decision of the circuit court appellate division, We vacate the 2006 and 2004 zoning resolutions, We remand this matter to the circuit court appellate division, with directions to remand the matter to the City Commission for a new hearing and determination by the City Commission whether the proposed project does, or does not, comply with Section 1305 as amended in 2004. At the new hearing, the developer has the burden of demonstrating compliance with the new version of Section 1305. The City Commission must reopen the record and afford the developer and the objectors an opportunity to present new evidence if they so choose. Alternatively, the developer and the objectors are free to rely on the existing record if they so choose.1 We address two other issues raised by the objectors in their petition, The objectors complain that, at the hearing below, the City Commission did not allow adequate time for the objectors to present their position. Under the circumstances We express no opinion on whether the existing record is, or is not, legally sufficient to support the position of either side. 4 casc eview° Criteria. some of which have multiple subdivisions. The City Commission was asked to make a total of twenty-five findings relating to the Design Review Criteria aad their subdivisions, The City Co m 1 F:E F -.in Vesia ion allotted onh' eight minutes side i4?r P T" the oC;('Clt.. rr 3 ma'Ee li-iti' ^t'P P,ii2I?C1?t. ;..`J wier Ih circumstances; we must respectfully state that eight minutes per side was too short a time allotment, While we do not specify any particular length of time, on remand a reasonable time allotment shall be given to each side. Second, the objectors in their petition raise a facial constitutional challenge to Section 502(c) of the City of Miami Zoning Code, which is the City's floor area ratio ordinance. We agree with the developer that a petition for writ of certiorari cannot be used for this purpose. "[A] petition seeking certiorari review is not the proper procedural vehicle to challenge the constitutionality of a statute or ordinance," Miami -Dade County v. Omnipoint Holdings, Inc., 863 So, 2d 195, 199 (Fla. 2003) (citation omitted). A challenge to the constitutionality of an ordinance "must be determined in original proceedings before the circuit court, not by way of a petition for writ of certiorari." Id. (internal quotation marks and citations omitted). As we did in our prior opinion., we conclude that the exercise of "second® tier" certiorari is appropriate where, as here, there has been an application of the 199 (Fia. 2003): City of Deerfield Beach 419 So, 2d 624, 626 (F i98.4 ?Miorningside Civic Ass'n, 917 So. 2d at 295 Second -tier certiorari is also appropriate where, after an earlier second -tier certiorari proceeding, there has been depa; uro tt"o171 tl,s ierm 0,1 the bappell?I( court remand, For the stated reasons we grant certiorari and remand for proceedings consistent with this opinion. • 'nF in the ,,roceeciino� on