HomeMy WebLinkAboutSubmittal-Memo-City AttorneyTO:
FROM:
DATE:
RE:
CITY OF MIAMI
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
Mayor Manuel Diaz and City Commissioners ,
Jorge L. Fernandez , City Attorney
August 29, 2007
FREMONT, Ann B.; PAYNE, Herbert, et al.
Matter ID No.: LZ-0400282.001Appeal
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As I reported to you earlier the Third District Court of Appeal recently rendered an appellate
decision in the case of Capt. Herbert Payne, Durham Park Neighborhood Association, Inc., & the
Miami River Marine Group, Inc. Vs. City of Miami & Balbino Investments, LLC 1 ("Balbino
"decision). In the Balbino decision the Third District Court of Appeal reversed a favorable order
in favor of the City & Balbino made by the Administrative Law Judge ("ALJ") and the State of
Florida Department of Community Affairs ("DCA"). In Balbino the City approved a small scale
amendment to the Future Land Use Map ("FLUM Amendment") for a 7.91 acre parcel located at
1818/1884 Northwest North River Drive which changed the land use designation of the property
from Industrial and General Commercial to Restricted Commercial In the past that property had
been a boat repair facility but it is currently unused. The Third District Court of Appeal reversed
the ALJ/DOAH decision allowing this FLLTM amendment leaving the Balbino Property as if this
change had not occurred, that is, with the former Industrial and General Commercial
designations. The Appellate Court, in summation, based their decision on their own
interpretation of the Port of Miami River sub element which the City maintains it always applies
to identify shipping companies at certain locations along the Miami River. Conversely, the
Appellate court found despite this that it was in their opinion intended to actually protect or
preserve any property throughout the River that was classified or used as marine industrial falls
under the protection or scope of the
Port of Miami River sub element. The Appellate Court additionally opined that the ALJ order
was subject to reversal for the following reasons: failure to consider the FLUM's amendment
impact upon fundamental Port of Miami River decisions contained in the Comprehensive Plan
and the Miami River master Plan , that the Balbino FLUM amendment was inconsistent with
both the Comprehensive Plan and the Miami River Master Plan , that the entire City of Miami
should not be an urban infill site, that relaxed small scale comprehensive plan amendment review
but only targeted areas within the City of Miami should be so designated; that the SD -4 Special
Zoning District entitled Waterfront Industrial District is undermined by this FLUM; that this
FLUM allows encroachment of non -water related or dependent uses that have no relevance to
nor do they support the maritime industry ; that this FLUM ran afoul of the Coastal
Management section of the Comprehensive Plan and that the Future Land Use element of the
comprehensive plan will not reduce industrial noise and pollution or help a declining area as the
ALJ found but rather will increase traffic and hurt economic development ; that the City was
losing marine and waterfront industrial properties through FLUM amendments ; and that the
FLUM is inconsistent with the River Master Plan. In short, the Appellate Court decided the
'Payne ,
Doc. No.
(ye- 0022. r - -
et. al. vs. City of Miami, et. al. , No. 3D06-1799 (Fla. 3rdDCA August 8, 2007).
: 87717 (2)
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Balbino FUM amendment was not consistent with the City of Miami Adopted Comprehensive
Plan or the River Master Pan.
Balbino and the City of Miami have timely served a Joint Motion for Rehearing, Rehearing En
Banc and/or Motion for Certification of Apples City of Miami and Balbino. We are arguing that
the Appellate Court's en banc review is required to resolve a disputed interpretation of the Port
of Miami Sub element which the original panel's decision incorrectly elevated above the
Comprehensive Pan as a whole to be a "land banking" requirement. That is the panel decision
gave an overwhelmingly broad and far reaching definition to the Port of Miami River sub
element beyond the language of the comprehensive plan or the intentions of city planners. We
also argue that the original panel misinterpreted the Port of Miami River sub element and
independently reviewed & reevaluated the evidence to reach the result they wanted in this
respect. We further maintain that the original appellate panel usurped the administrative agency's
role by conducting a de novo, that is, an entirely fresh & new review of the FLLTM amendment.
Particularly the appellate panels' is stated to depart from the governing standard of review as to
how they addressed the issues of coastal management, future land use., marine uses and the
Miami River Master Plan. In brief, in arguing for a rehearing and rehearing en banc the
Appellees argue that the original appellate panel exceeded its authority and limitations as to the ,�40 00 c
of their review on appeal. The Appelees have further requested certification to the Florida c
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Supreme Court as a question of great public importance. c
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Even more recently the Third District Court of Appeal decided the case of Payne, the Durham .o
Park Neighborhood Ass., Inc. & Miami River Marine Group, Inc. vs. City of Miami and
Riverside Investments, LLC 2 ("Riverside" decision) which essentially duplicates the Balbino • N
decision. In the Riverside decision the property is located at 2215 NW 14 Street in the Middle
River area. At a time in the past the property had been used by a tug and barge company but is sz • E
currently not used. The City of Miami approved a FLUM amendment to change the land use ti
designation from Industrial to Restricted Commercial. This allowed the development of as multi
family development project on the property. The project was to have consisted of 4.3 acres of a
waterfront parcel for a twelve story residential condominium. The Riverside decision is very
similar to the Balbino decision discussed at length above. The appellate panel opinion again
finds that the ALJ/ DOAH erred in failing to apply the appellate court's definition of the port of
Miami River, failed to consider the Port of Miami River Sub element and critical areas of the
Coastal Management and Future Land Use element of the River Master Plan , and made findings
that were not supported by the evidence the appellate panel reversed a favorable ruling the City
& Balbino had earlier obtained from the ALJ that this FLLTM amendment was consistent with the
City's adopted comprehensive Plan. This ruling is very recent but insofar as it appears to be a
clone of the Balbino ruling the City & riverside again plan to file a motion for rehearing,
rehearing en banc and certification of the case to the Florida Supreme Court along similar
arguments as have been made in Balbino, with some differences.
Finally we have set for oral argument on September 19, 20067 the final related or connected case
in this matter which is styled Payne, et. al. vs. City of Miami, et. al. 3 We are concerned we may
get the same appellate three judge panel. In any event this case involves property located at 1583
NW 24TH Av., .this property was used as a vessel storage and repair location in the past but not
currently. The City of Miami approved a FLUM amendment for the property from Industrial to,
Restricted Commercial. The City won the administrative hearing before the ALJ and the final
order was recommended by DOAH. The Plaintiff's have filed an appeal before the Third District
2 Payne, et. al. vs. City of Miami, et. al. , No. 3D06-2409 (Fla. 3rd DCA August 29, 2007)
3 Payne , et. al. Vs. City of Miami, et. al. (Brisas Del Rio) No. 3D06-GM-261( Fla. 3rd DCA 2006, pending).
Doc. No.: 87717 (2)
2
Court of Appeal challenging the Flum's consistency with the comprehensive plan on much the
same grounds. The City and Brisas del Rio successfully maintained at the administrative hearing
its arguments that this FLUM was consistent with the comprehensive plan.
Jurisdiction of the District Court of Appeal
A. Rehearing En Banc
This office has moved for a rehearing of the Balbino decision and plans to move to
move for a rehearing of the Riverside on the same grounds. A motion for a rehearing may be
filed within 15 days of an order.4 A motion for a rehearing shall state with particularity the
point of law or fact that the court has overlooked or misapprehended in the decision. A party
may move for an en banc rehearing `solely on the grounds that the case is of exceptional
importance or that such consideration is necessary to maintain uniformity in the court's
decisions".5 All other grounds will be stricken. A vote on the motion needs to be requested by
a Judge on the panel that heard the proceeding.
A rehearing en banc is an extraordinary proceeding. The grounds must be clearly
established. The motion must contain either of these two statements:
"I express a belief, based on a reasoned and studied professional judgment that the panel
decision is of exceptional importance." Or
`I express a belief, based on a reasonable and studied professional judgment, that the panel
decision is contrary to the following decision(s) of this court and that a consideration by the
full court is necessary to maintain uniformity of decisions in this court (citing specifically the
case or cases)."
The jurisdiction of the Florida Supreme Court is limited. The discretionary jurisdiction of
the Supreme Court may be sought to review decisions of District Courts of Appeal that:
i. Expressly declare valid a state statute;
ii. Expressly construe a provision of the state or federal constitution,
iii. Expressly affect a class of constitutional or state officers,
4 Rule 9.330 (a), Fla. R. App. P., (2006).
5 Rule 9.331(d), Fla. R. App. P., (2006).
Doc. No.: 87717 (2)
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
3
iv. Expressly and directly conflict with a decision of another district
court or of the Supreme Court on the same question of law,
v. Pass upon a question certified to be of great public importance,
vi. Are certified to be in direct conflict with decisions of other district
courts of appeal.
In the present situation, the City of Miami could try to obtain Supreme Court
jurisdiction by two methods:
• As a certified question of great public importance, such as "Are long standing
interpretations of a City's Comprehensive Plan entitled fairly debatable
standard of review?"
o The DCA would have to certify the question. This is the option we have
to taken on the Balbino decision.
Another way which is sometimes available is:
• Expressly and directly conflict with a decision of another DCA on the same
question of law. See, St. Johns County v. Owings, and Dixon v. City of
Jacksonville.
o The DCA does not have to certify the matter but the issue must clearly
and directly conflict with another DCA.
We have discussed the legal measures we are undertaking and recommending relative to these
actions. A legislative measure would be to repeal or modify the Port of Miami River sublement
in the City's adopted comprehensive plan. This is because it is an optional element of the
comprehensive plan as opposed to a required element ( e.g. capital improvements element ,
future land use element, traffic circulation element, sewer, solid waste, drainage, potable water
and natural groundwater element, conservation & housing element, etc., coastal management
element et. al.). § 163.3177, Fla. Stat. As such it could be repealed or amended as a text
change. §163.3184, §163.3187, Fla. Stat.
Enclosure(s)
Doc. No.: 87717 (2)
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk
4
Doc. No.: 87717 (2)
Submitted into the public
record in connection with
item PZ.1 on 05-08-08
Priscilla A. Thompson
City Clerk