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HomeMy WebLinkAboutSubmittal-Motion for Rehearing -BalbinoIN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA HERBERT PAYNE; ANN STETSER; THE DURHAM PARK NEIGHBORHOOD ASSOCIATION, a Florida not -for -profit corporation; and THE MIAMI RIVER MARINE GROUP, INC., a FLORIDA not -for - profit corporation, Appellants, Case No.: 3D06-1799 v. CITY OF MIAMI, a Florida municipal corporation; and BALBINO INVESTMENTS, LLC, Appellees. APPELLEE'S MOTION FOR REHEARING AND CLARIFICATION, WITH MOTION FOR REHEARING EN BANC, AND MOTION FOR CERTIFICATION Appellee, CITY OF MIAMI ("CITY"), pursuant to Rules 9.030(a)(2)(A), 9.330(a) and 9.331(d), Fla. R. App. P., files this its Motion for Rehearing and Clarification with its Motion for Rehearing en banc and its Motion for Certification, as to the Opinion issued August 8, 2007, and states in support: SUBMlrrED INTO THE PUBLIC RECORD FOR !TEMPZONS-1AJ Formatted: Right: 0.25" Og- 000 — C'-'`� c r f fo r �'��.�.cFQy + r '� :c o to eJ ._ MOTION FOR REHEARING AND CLARIFICATION 1. This Court issued its opinion, finding that the Balbino Investment, LLC FLLTM Amendment was not consistent with the Comprehensive Plan on grounds that the ALJ failed to consider the Port of Miami River Sub element, the Miami River Master Plan, and the Coastal Management and Future Land Use sections of the Comprehensive Plan. 2. In making its determination, however, it appears that the Court may have strayed from the appropriate standard of review in violation of section 120.68, Florida Statutes; may have overlooked the applicable rule of law that reviewing Courts are prohibited from substituting their own judgment for that of administrative bodies; appears to rely heavily on evidence, issues and circumstances not addressed by appellants on appeal and; appears, in error, to base its findings on a non-dispositive procedural ruling as well as on aspirational legislation with which the City is not obligated to comply. 3. In addition, further clarification of the Court's decision is required based on the Court's decision to reverse absent any further instruction. I. The panel strayed from the appropriate standard of review and ventured outside its prescribed powers by reweighing the evidence and conducting de novo review Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk Where small-scale comprehensive plan amendments are challenged, a reviewing court must defer to a state agency's expertise and interpretation of relevant statutes by limiting itself to the "fairly debatable" standard of review.' Moreover, where the state agency's decision is supported by competent substantial evidence, a reviewing court is precluded from supplanting that agency's decision or legal interpretation with that of its own where an issue of discretion is concerned.2 As a result, Court's are not permitted to search the record for contradictory evidence sufficient to overturn an agency's decision, but are instead tasked only to determine whether there was evidence supporting the agency's decision.3 The Court's opinion in this case erred in doing just the opposite. The facts set forth in the Court's opinion improperly contradict the findings of 1 Coastal Dev. Of N. Florida v. City of Jacksonville Beach, 788 So. 2d 204 (Fla. 2000) (holding that small-scale development amendment decisions made pursuant to section 163.3187(1)(c), Florida Statutes, are subject to the "fairly debatable" standard of review; Island, Inc. v. City of Braedenton Beach, 884 So. 2d 107 (Fla. 2d DCA 2004) (the fairly debatable standard of review is highly deferential requiring approval of a planning action even when reasonable minds can differ). 2 Pauline v. Lee, 147 So. 2d 359 (1962), cert. den. 156 So. 2d 389 (A reviewing court cannot substitute its judgment for that of a finder of fact); Knight v. Winn, 910 So. 2d 310 (Fla. 4th DCA 2005) (The DCA cannot substitute its judgment for the weight given to the evidence by the administrative law judge nor can it dispute findings of fact) and; Colbert v. Dep't of Health, 890 So. 2d 1165 (Fla lsc DCA 2004) (great weight must be given to administrative construction and interpretation of a statute by officials charged with its administration). 3 United Faculty of Florida v. Public Employees Relations Comm'n, 898 So 2d 96 (Fla 1st DCA 2005), rev. den. 909 So. 2d 863 (reviewing courts must defer to an agency interpretation if it is consistent with legislative intent and supported by competent substantial evidence); Pasco County School Bd. v. Florida Public Employees Relations Comm'n, 353 So. 2d 108 (Fla. lst DCA 1977) (it is inappropriate for reviewing appellate court to resolve conflicts in testimony). 3./ Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk the Administrative Law Judge ("ALJ") using contradictory evidence and alternative forms of interpretation: ALJ Findings Panel's Revision Petitioners failed to present any evidence concerning a lack of coordination of activities relative to the FLUM amendment. The amendment is internally consistent with the City's Plan, and is based on adequate data and analysis, as required by Florida Administrative Code Rule 9J- 5.005(2) and Section 163.3177(8), Florida Statutes. This being so, the City's determination that the plan amendment is in compliance must be sustained. The FLUM amendment is inconsistent with the comprehensive plan and the ALJ failed to examine the amendment's impact on fundamental policy decisions. The Middle River is a long-standing mixed -use area with industrial, commercial office and many types of residential uses. The SD-4.2 classification precludes ANY residential uses. The amendment benefits the urban Infill, which is intended to draw more dense development to the central areas of the County favoring smart growth and preventing more urban sprawl. The City's interpretation fails to protect the Port of Miami River from encroachment by non -water dependent or water -related land uses The small-scale amendment is consistent with LU-1 (1), (3), which policy protects and enhances residential neighborhoods The City's interpretation fails to protect the Port of Miami River from encroachment by non -water dependant or water -related land uses. The Middle River does not include or mandate Marine uses The parcel has always been used for Marine industrial purposes. The Port of Miami Sub element does not apply to the FLUM amendment even if the Port of The Port of Miami River sub element is not limited to the 14 properties in question. The ALJ ignored the ,.+ Formatted: Right: 0.25" Submitted into the public record in connection ivith item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk Miami River Sub element is not limited to the 14 properties in question. findings of Payne II. Based on the record, the ALJ correctly determined that the Port of Miami River Sub element does not apply to the FLUM amendment and that the amendment was consistent with the comprehensive plan. It was not the role of the Appellate Court to reweigh the evidence anew, based on its independent findings. The Court's improper detour into the realm of de novo review is most evident in its treatment and consideration, or lack thereof, of the expert testimony of Lourdes Slazyk. The findings contained within the ALJ decision correspond almost entirely with Ms. Slazyk's expert testimony, including findings that the FLUM complied with the comprehensive plan, that the City has never applied the Miami River Sub Element river -wide, and that the Miami River sub element was not violated. However, the 41-page opinion issued in this case completely ignored Ms. Slazyk's testimony —in fact, Ms. Slazyk's extensive testimony was not mentioned at all in the 41-page opinion. Instead the Court combed through the record for evidence specifically countering Ms. Slazyk's testimony. As addressed earlier, this type of "cherry -picking" for contradictory evidence is prohibited by long standing rules of law. r- +, Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk The Court's purposeful disregard of Ms. Slazyk's testimony, purposeful disregard of the ALJ's findings of fact based on that testimony, and its decision to make independent, extensive and contradictory findings of fact violates the standard of review and improperly usurps the role of the ALJ. II. The ALJ's decision was supported by competent substantial evidence The ALJ considered the location of the property as being in the "Middle River". This geographic designation is taken from the Miami River Master Plan (MRMP) adopted and approved by the City in 1992. From the evidence presented, the ALJ found, as is well known, that the Middle River is a long-standing mixed use area. Based on the MRMP, the ALJ found that the Middle River has the most existing housing and residential uses along the entire Miami River. Ms. Slazyk's expert testimony also verified that the amendment was consistent with the comprehensive plan, including the Port of Miami River Sub element. Here, the Court's attempt to counter expert testimony by extracting and citing unfavorable evidence from the record is simply not permitted. Reviewing Courts are precluded from searching the record for rebuttal or contradictory evidence, and are tasked only to determine if there is Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk supporting evidence in the record for the lower court's decision.4 As a result, the Court needed to look no further than the testimony of experts such as Lourdes Slazyk, who testified that the Miami Sub element applied only to the existing 14 named, mapped and identified properties in the record III. The Court erred in basing its decision on an interlocutory ruling and on evidence not addressed in the appeal The Court's opinion and re -interpretation of the agency's decision is based almost exclusively on the findings of Payne v. City of Miami, 927 So. ......................... _.. 2d 904 (Fla 3rd DCA 2005) ("Payne II'). However, the Court's reliance on this ruling is severely misplaced. rayne II, as decided by this court, is a procedural ruling that was made as to petitioner's standing to bring the action. The only dispositive question in [Payne II was whether the Miami , River Marine Group had standing as an affected person under chapter 163, Florida Statutes, to institute and maintain a small-scale amendment challenge. It is critical to note that Payne II was not a ruling on the merits ,. on which the Court was permitted to rely in making its decision. Payne II was merely a motion to dismiss. Where orders are made on interlocutory matters, any decisions of that court are not the law of the case, nor are they a merits -ruling on the facts of law. Ladner v. Plaza Del Rado Condo Ass 'n, 4 Id. Formatted: Font: Italic •'Formatted: Font: Italic Formatted: Font: Italic • f Formatted: Font: Italic l_ Formatted: Font: Italic Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk Inc., 423 So. 2d 927 (Fla. 3d DCA 1982). Based on this well established rule of law, the Court was precluded from using that decision as a basis for determining where the Port of Miami River is located. In addition, the Court's opinion is unduly colored by the terms of the Miami River Master Plan. It is important to note that the City has never adopted the Miami River Master Plan and that the Plan is merely aspirational, not mandatory. To base its decision almost entirely on optional legislation with which the City was not required to comply is plain error. Finally, the Court's opinion challenges the City's attempt to engage in alleged surreptitious, "piecemeal" rezoning in a multiplicity of small scale FLUM amendments —all in an effort to allegedly break apart marine uses in and on the river. However, not only does argument address zoning, an issue precluded from discussion in a comprehensive plan amendment case pursuant to chapter 163, it also improperly raises issues not challenged or addressed by appellants on the record.5 This issue did not appear in the order issued by the ALJ and it was not briefed by appellants in their request for an appeal. It must be noted that Appellate review is limited solely to the 5 The Court's argument is likely taken from a speech made by Appellant's attorney, Mr. Dickman, during oral argument. However, the Court is precluded from basing its decision on comments not contained within the record, that is comments contained in the order or in briefs submitted by counsel. 8. „riormatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk record of the proceeding before the administrative agency on which the questioned order is based.6 MOTION FOR REHEARING ENBANC Rule 9.331, Fla. R. App. P., authorizes a rehearing en banc where it is necessary to maintain uniformity in the Court's decisions. The opinion issued herein presents such a departure from the prescribed powers of a reviewing Court that, if manifested, would contradict a well -established rule of law, including decisions from the Florida Supreme Court and the First, Second, Third and Fifth District Courts of Appeal, precluding a reviewing court from supplanting its own interpretations in place of that of an expert agency. JORGE L. FERNANDEZ CITY ATTORNEY RAFAEL SUAREZ-RIVAS ASSISTANT CITY ATTORNEY Attorneys for the City of Miami 444 S.W. 26d Avenue, Suite 945 Miami, FL 33130-1910 Tel.: (305) 416-1800 Fax: (305) 416-1801 By: Rafael Suarez -Rivas, Assistant City Attorney Florida Bar No. 293881 6 Ft. Lauderdale Bd. of Adjustment v. Nash, 413 So. 2d 855 (Fla. 4th DCA 1982). Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk Required Statement I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of the Florida Supreme Court, this and other Courts and that a consideration by the full Court is necessary to maintain uniformity of decisions in this Court: • Ladner v. Plaza Del Rado Condo Ass 'n, Inc., 423 So. 2d 927 (Fla. 3d DCA 1982). • Coastal Dev. Of N. Florida v. City of Jacksonville Beach, 788 So. 2d 204 (Fla. 2000). • Island, Inc., v. City of Bradenton Beach, 884 So. 2d 107 (Fla. 2d DCA 2004). • Metropolitan Dade County v. Florida Department of Environmental Protection, 714 So. 2d 512 (Fla. 3d DCA 1998). • St. Johns County v. Owings, 554 So. 2d 535 (Fla. 5th DCA 1989). JORGE L. FERNANDEZ CITY ATTORNEY RAFAEL SUAREZ-RIVAS ASSISTANT CITY ATTORNEY Attorneys for the City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130-1910 Tel.: (305) 416-1800 Fax: (305) 416-1801 By: Rafael Suarez -Rivas, Assistant City Attorney Florida Bar No. 293881 Formatted: Right 0.25 10. Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk MOTION FOR CERTIFICATION 1. Rule 9.030(a)(2)(A)(v) and (vi), Fla. R. App. P., permits discretionary review by the Florida Supreme Court when district court decisions directly conflict with a decision of another District Court of Appeal or the Supreme Court of Florida on the same question of law. 2. The Court's decision herein conflicts with the Supreme Court of Florida's decision in Coastal v. City of Jacksonville; the Second District Court of Appeal's decision in Metropolitan Dade County v. Florida Dep't of Environmental Protection and;8 the Fifth District Court of Appeal's decision in St. Johns v. Owings.9 Each case holds that where a small-scale amendment is challenged, reviewing courts must apply the agency - deferential "fairly debatable" standard of review. Moreover, each case establishes that reviewing courts must defer to an agency's interpretation of an operable statute as long as such interpretation is consistent with legislative intent and is supported by competent substantial evidence. Nevertheless, the opinion rendered in this case interferes with the province and expertise of the Administrative Law Judge as the trier of fact and the Department of Community Affairs as the administrative body --all contrary 7 Coastal Dev. Of N. Florida v. City of Jacksonville Beach, 788 So. 2d 204 (Fla. 2000) 8 Metropolitan Dade County v. Florida Dep't of Environmental Protection, 714 So. 2d 512 (Fla. 3d DCA 1998) 9 St. Johns v. Owings, 554 So. 2d 535 (Fla. 5th DCA 1989). ,% Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk to established rules of law. The opinion rendered in this case ignores competent substantial evidence supporting this agency's decision, improperly relies on the Court's own interpretation of the statute, and improperly expands the Court's prescribed powers to the level of de novo review. WHEREFORE, the decision issued herein not only presents a conflict with the Supreme Court of Florida's decision in Coastal, it also conflicts , with decisions of the First, Second, Third and Fifth District Courts of Appeal, thus warranting review by the Supreme Court of Florida. JORGE L. FERNANDEZ CITY ATTORNEY RAFAEL SUAREZ-RIVAS ASSISTANT CITY ATTORNEY Attorneys for the City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130-1910 Tel.: (305) 416-1800 Fax: (305) 416-1801 By: Rafael Suarez -Rivas, Assistant City Attorney Florida Bar No. 293881 12. Formatted: Font: Italic I Formatted: Right: 0.25" Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk