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Home My WebLink AboutSubmittal-Motion for Rehearing -RiversideIN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA CAPTAIN HERBERT PAYNE, 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, v. CITY OF MIAMI, a Florida municipal corporation, and RIVERSIDE INVESTMENTS, LLC, Appellees. CASE No. 3D06-2409 SUBMITTED INTO THE PUBLIC RECORD FOR ITEM Pz ON s-Y-ey. JOINT MOTION FOR REHEARING, MOTION FOR REHEARING EN BANC, AND/OR MOTION FOR CERTIFICATION OF APPELLEES CITY OF MIAMI AND RIVERSIDE INVESTMENTS, LLC Appellees City of Miami (the City) and Riverside Investments, LLC (Riverside) move the Court to grant rehearing, rehearing en banc and/or for certification to the Florida Supreme Court of this Court's August 29, 2007 opinion. INTRODUCTION This Court's opinion reverses the decision of the Department of Community Affairs (DCA), which decision rejecting petitioners' challenge to a small-scale amendment to the City's land -use plan, based on the Court's August 8, 2007 companion decision in Payne v. City of Miami, Case No. 3D06-1799 (hereinafter ? ' !)C' .'. k _XiOrin ;�2. — Mott ova for c. ), Payne III), which is pending on a motion for rehearing and rehearing en banc. Appendix (hereinafter "A") 1. As in Payne III, the Court has again usurped authority that the Legislature delegated to the DCA and the Division of Administrative Proceedings (DOAH) for determining whether a proposed small- scale amendment to a local governmental Future Land Use Map (FLUM amendment) is "in compliance" with the local government's adopted comprehensive plan under Section 163.3184, Florida Statutes (2006). In conducting de novo review, the Court went far beyond its narrowly prescribed role as an appellate court reviewing a DCA decision pursuant to Section 120.68(7), Florida Statutes (2006). For the same compelling reasons set forth in the joint motion for rehearing in Payne III (a copy of which is attached as Appendix 2 and incorporated in this motion) the panel opinion in this case should be reviewed by the Court en banc. I. THIS COURT'S EN BANC REVIEW IS REQUIRED TO RESOLVE THE DISPUTED INTERPRETATION OF THE COMPREHENSIVE PLAN'S PORT OF MIAMI RIVER SUBELEMENT, WHICH THE PANEL OPINION HAS ELEVATED TO A "LAND -BANKING" REQUIREMENT FOR FUTURE MARINE USES ON THE MIAMI RIVER. A. The Disputed Interpretation of the Port of Miami River Subelement Warrants En Banc Review. As the in Payne III, the panel opinion recognizes that the City specifically defined the "Port of Miami River" in its Miami Comprehensive Neighborhood Plan (the Comprehensive Plan) as fourteen shipping companies, but nonetheless relies on testimony presented by appellees (hereinafter petitioners) in concluding Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk 2 that the Port of Miami River has a much broader meaning and in giving it a status similar to that of an actual port. Appendix ("A") 1 at 15, 21-22. And, as in Payne III, the panel opinion finds that "the Port of Miami River encompasses the water - dependent marine activity on the river, which includes the shipping companies and terminals and the associated supporting marine industries." (A:22) So too, the panel opinion relies on the Court's prior decision in Payne v. City of Miami, 927 So. 904 (Fla. 3d DCA 2005) (hereinafter Payne II), in which appeal evidence of the fourteen shipping companies could not be considered due to the procedural posture of the underlying case. In the DOAH proceedings, as in the Payne III DOAH proceedings, the City produced evidence to establish the identities and locations of the fourteen shipping companies along with an updated list of companies to which the Port of Miami River Subelement applied, which evidence was considered by the DOAH Administrative Law Judge (ALJ) in rendering his decision that the subelement did not apply to Riverside's property. (R:649-54). En banc review is warranted because, as set forth in the Payne III rehearing motion, the panel opinion's extraordinarily broad interpretation and application of the Port of Miami River Subelememt has far reaching implications, i.e., the Court effectively has mandated "land banking" along the Miami River for marine and marine -related uses and precluded all residential uses. (A:2: ). 3 Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk B. The Panel Opinion's Determination That the ALJ Erred in Applying the Port of Miami River Subelement Is Flawed by the Panel's Misinterpretation of the Subelement. As in Payne III, the panel opinion determines that the ALJ "erred in failing to consider the objectives and policies of the Port of Miami River Subelement." (A:22). That determination ignores the ALJ's decision to conduct an analysis of the Port of Miami River Subelement despite the evidence demonstrating that the City's interpretation was indeed correct. (R:654-58). Relying upon DCA's Final Order in Payne III, the ALJ ruled that provisions of the Port of Miami River Subelement which are directed at land development regulations are not relevant in a FLUM amendment challenge. (R:654). The ALJ then thoroughly examined the evidence in the record with respect to Objective PA-3.3 and Goal PA-3, finding that the FLUM amendment is inconsistent with neither provision. (R:654-58). In ruling that the ALJ would have concluded that the FLUM amendment is inconsistent with the Comprehensive Plan had he considered the Port of Miami River Subelement, the panel deliberately overlooks the ALJ's analysis and reweighs the evidence, resulting in an erroneous interpretation and application of the subelement. (A:2: ). II. THE PANEL USURPED THE ADMINISTRATIVE AGENCY'S ROLE IN CONDUCTING DE NOVO REVIEW OF THE FLUM AMENDMENT. Finally, as in Payne III, the panel refuses to accord deference to the ALJ's findings and DCA's final decision with respect to the Port of Miami River Subelement, despite the constraints imposed by the applicable standard of review 4 Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk under Section 120.68(7), Florida Statutes (2006). (A:2: ). The panel opinion usurps the role of DCA and DOAH by reweighing the evidence with respect to the FLUM amendment's consistency with the Future Land Use and Coastal Management Elements of the Comprehensive Plan, in exactly the same manner as Payne III. (A:1:25-34; A:2: ). The panel's determination that the FLUM amendment is inconsistent with Miami River Master Plan (A:5, 14, 39), an issue that was not presented before DOAH or DCA because it is outside the statutorily - defined scope of the administrative proceedings, § 163.3184(1)(b), Fla. Stat. (2006), exemplifies the panel's assertion authority beyond that with which the courts are endowed. (A:2: ). Even more significantly, the panel engages in policy -making by reiterating the policy declarations set forth in Payne III, which express strong criticism of the City's legislative decisions to approve small-scale plan amendments on the Miami River. (A:31-32, 40; A:2: ). The legal basis for en banc review set forth in the Payne III joint motion for rehearing (A:2 ), is fully applicable and is incorporated into this motion. III. MOTION FOR CERTIFICATION TO THE FLORIDA SUPREME COURT. Because the panel opinion relies on the policy declarations and the underlying rationale in Payne III, if rehearing and rehearing en banc were to be denied, the City and Riverside request the Court to certify the same question of question of great public importance on which certification has been sought in Payne III. (A:2: ). 5 Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk CONCLUSION Based on the foregoing, the City and Riverside request the Court to grant rehearing, rehearing en banc, or, in the alternative, certification to the Florida Supreme Court. STATEMENT OF COUNSEL I express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance. 6 Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk David C. Ashburn, Esq. Florida Bar No. 708046 Greenberg Traurig, P.A. 101 East College Avenue Post Office Drawer 1838 Tallahassee, FL 32302 Telephone (850) 222-6891 Facsimile (850) 681-0207 Jorge L. Fernandez, Esq. City Attorney Rafael Suarez -Rivas, Esq. Assistant City Attorney City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 Telephone: (305) 416-1800 By: Respectfully submitted, Elliot H. Scherker, Esq. Florida Bar No. 202304 Lucia Dougherty, Esq. Florida Bar No. 295477 Paul R. Lipton, Esq. Florida Bar No. 156850 Pamela A. DeBooth, Esq. Florida Bar No. 128872 Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, Florida 33131 Telephone: (305) 579-0500 Facsimile: (305) 579-0717 By: Rafael Suarez -Rivas Paul R. Lipton Counsel for Appellees CERTIFICATE OF SERVICE I certify that a copy of this motion for rehearing was mailed on September , 2007 to: Andrew W.J. Dickman, Esq. P.O. Box 771390 Naples, Florida 34107-1390 MIA 179732255v1 9/5/2007 7 Submitted into the public record in connection with item PZ.1 on 05-08-08 Priscilla A. Thompson City Clerk