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HomeMy WebLinkAboutSubmittal-Memo-Law-Miami River CasesCITY OF MIAMI OFFICE OF THE CITY ATTORNEY MEMORANDUM TO: The Honorable Mayor and Members of the City Commission FROM: Jorge L. Fernandez, City Attorney DATE: September 17, 2007 SUBJECT: Herbert Payne, et. al. vs. City of Miami, et al. Case No.: 3D06-2409 (Coastal on the River project) Case No.: 3D06-2718 (Brisas del Rio project) Case No.: 3D06-1799 (Hurricane Cove project) RE: Miami River Cases w E I-- ix %\el _____.,:n fn c) 0 LU 0 C) 4' Sri CO DO As I reported to you earlier. the Third District Court of Appeal recently rendered an appellate decision in the Balbino Investments, LLC case' (the "Hurricane Cove" decision), reversing an order favorable to the City of Miami issued by an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings ("DOAH") and the State of Florida Department of Community Affairs ("DCA"). The case stemmed from the City of Miami's approval of a small scale amendment to the Future Land Use Map ("FLUM Amendment") for a 7.91 acre parr -el located at 1818/1884 Northwest North River Drive, which changed the land use designation o, the property from Industrial and. General Commercial to Restricted Commercial. The Third District Court of Appeal reversed the ALJ/DOAH decision leaving the property as if the resulting land use change had not occurred, that is, the Court's decision invalidated the FLUM amendment and reinstated the property's former Industrial and General Commercial designations. Despite the City of Miami's longstanding interpretation of the Port of Miami River subelement that it applied only to specific shipping companies at certain locations along the Miami River —the Appellate Court found that the Miami River subelement was intended to protect or preserve any property along the Miami River classified or used as "marine industrial." The Appellate Court additionally opined that the ALJ order was subject to reversal for the following reasons: • Failure to consider the FLUM amendment's impact upon fundamental Port of Miami River decisions contained in the Comprehensive Plan and the Miami River Master Plan. • 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 that only targeted areas within the City of Miami should be so designated. • The SD 4 Special Zoning District entitled Waterfront Industrial District is undezinined by this FLUM. • The FLUM allows encroachment of non -water related or dependent uses that have no relevance to nor do they support the maritime industry. " Capt. Herbert Payne, Durham Park Neighborhood Association, Inc. & The Miami River Marine Group, Inc. vs. City of Miami & Balbino Investments, LLC, (Hurricane Cove) No. 3D06-] 799 (Fla. 3`d DCA August 8, 2007). Submitted into the public record in connection with item I'Z.1 on 05-08-08 Priscilla A. Thompson City Clerk Honorable Mayor and Members of the City Commission Miami River Cases September 17, 2007 • The 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. • The City of Miami was losing marine and waterfront industrial properties through FLUM amendments. • The FLUM is inconsistent with the Miami River Master Plan. In short, the Appellate Court decided the FLUM amendment was not consistent with the City of Miami Adopted Comprehensive Plan at the Miami River Master Plan. Both the City of Miami and Balbino Investments, LLC have timely served a Joint Motion for Rehearing, Rehearing En Banc and/or Motion for Certification to the Florida Supreme Court. We are arguing that the Appellate Court's en bane review is required to resolve a disputed interpretation of the Port of Miami River subelement, and that the original Court of Appeal panel gave an impermissibly broad and far-reaching definition to the Port of Miami River subelement beyond the scope of the Comprehensive Plan and the legislative intent of the City of Miami planners. We also argue that the original panel misinterpreted the Port of Miami River Subelement and independently reweighed and reevaluated the evidence to reach the result it desired, which was beyond its power as a reviewing Court. We further maintain that the original appellate panel usurped the administrative agency's role by conducting a de novo hearing, that is, the panel re -tried the case. More specifically, the appellate panel has departed from the governing standard of review in how it 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 bane, the Appellees argue that the original appellate panel exceeded its authority and limitations in the scope of its review on appeal. The Appellees have further requested certification to the Florida Supreme Court as a question of great public importance„ Even more recently, the Third District Court of Appeal decided the case of Payne, the Durham Park Neighborhood Association, Inc. & The Miami River Marine Group, Inc. vs. City of Miami and Riverside 22 Investments, LLC` ("Coastal on the River" decision), which essentially duplicated the "Hurricane Cove" decision. The case stemmed from a property located at 2215 NW lot Streetin the Middle River area. The City of Miami approved a FLUM amendment to change the land use designation from Industrial to Restricted Commercial. This allowed the development of a 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 Coastal on the River decision is very similar to the Hurricane Cove decision discussed at length above. The appellate panel opinion again found 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 Subelement 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 of Miami and Balbino Investments, LLC had earlier obtained from the ALJ; that this PLUM amendment was consistent with the City of Miami's adopted comprehensive Plan. This ruling is very recent, but insofar as it appears to be a clone of the Hurricane Cove ruling, the City of Miami and Riverside 22 Payne, et. al. vs, City of Miami, et. al., (Coastal on the River) No. 3D06-2409 (Fla. 3rd DCA August 29, 2007) 89743 2 Submitted into the public record in connection with item 'Z.1 on 05-08-08 riscill;� A. Thompson City Clerk Honorable Mayor and Members of the City Commission Miami River Cases September 17, 2007 Investments, LLC again plan to file a -Motion for Rehearing, Rehearing en bane and Certification of the Coastal on the River case to the Florida Supreme Court. Lastly, the final related or connected case in this matter which is styled Payne, et. al. v. City of Miami, et. al.' ("Brisas del Rio case") is set for oral argument on September 19, 2007. This case involves property located at 1583 NW 24th Avenue. The City of Miami approved a FLUM amendment for the property from Industrial and Medium Density Residential to Restricted Commercial. The City of Miami won the administrative hearing before the ALJ and the final order was accepted by DOAII. The Plaintiffs have filed an appeal before the Third District Court of Appeal challenging the FLUM's consistency with the Comprehensive Plan on much the same grounds. 1-he City of Miami and Brisas del Rio, LLC successfully maintained at the administrative hearing its arguments that this FLUM was consistent with the comprehensive plan. Jurisdiction of the District Court of Appeal Rehearing En Banc This office has moved for a rehearing of the Hurricane Cove decision and plans to move for a rehearing of the Coastal on the River decision on the same grounds. A motion for rehearing may be filed within fifteen (15) days of an order.' 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."' 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: "1 express a belief, based on a reasoned and studied professional judgment that the panel decision is of exceptional importance." Or "1 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; i11, Expressly affect a class of constitutional or state officers; iv. Expressly and directly conflict with a decision of another district court or of the Supreme Court on the same question of law; ' Payne, et. al, vs. City of Miami, et. al., (Brisas del Rio) No. 3D06-GM-261(F1a. 3rd DCA 2006, pending). Rule 9.330(a), Fla. R. App. P., (2006). 5 Rule 9.331(d), Fla. R. App. P., (2006). 89743 3 Honorable Mayor and Members of the City Commission Miami River Cases September 17, 2007 v. Pass upon a question certified to be of great public importance; Ni. 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 (2) methods: • As a certified question of great public importance, such as "Are long standing interpretations of a City of Miarni's Comprehensive Plan entitled to the `fairly debatable' standard of review?" o The DCA would have to certify the question. This is the option we have taken on the Hurricane Cove decision. Another method that is sometimes available is: • Challenging a decision that expressly and directly conflicts with a decision of another DCA on the same question of law. See, St. Johns County v. Owings, and Dixon v. City of Jacksonville. (We have not employed this option as of this writing.) 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 subeternent in the City of Miami'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, coastal management element, et. aL). §163.3177, Fla. Stat. As such it could be repealed or amended as a text change to the Comprehensive Plan. § ] 63.3184, §163.3187, Fla. Stat. Enclosure(s) 89743 Submitted into the public record in connection with item. PZ,l on 05-08-08 Priscilla A. Thompson City Clerk 4