HomeMy WebLinkAboutCC Legislation (Version 1) & ExhibitsCity of Miami
Legislation
Resolution
City Hall
3500 Pan American
Drive
Miami, FL 33133
www.miamigov.com
File Number: 04-01208a
Final Action Date:
A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S),
DENYING THE APPEAL BY THE MORNINGSIDE CIVIC ASSOCIATION, INC. AND
ROD ALONSO, RON STEBBINS, SCOTT CRAWFORD AND ELVIS CRUZ,
AFFIRMING THE DECISION OF THE MIAMI ZONING BOARD,' IN ACCORDANCE
WITH THE OPINION OF THE THIRD DISTRICT COURT OF APPEAL, THEREBY
APPROVING THE CLASS II SPECIAL PERMIT APPLICATION NO. 03-0309
ISSUED ON JULY 21, 2004, TO ALLOW NEW CONSTRUCTION FOR THE
PROPERTY LOCATED AT APPROXIMATELY 5101 BISCAYNE BOULEVARD,
MIAMI, FLORIDA, MORE PARTICULARLY DESCRIBED IN "EXHIBIT A."
WHEREAS, the Miami Zoning Board at its meeting on October 4, 2004, Item No. 5, adopted
Resolution No. ZB 2004-0928 by a vote of eight to zero (8-0), to DENY the appeal of the decision to
grant the Class II Special Permit Application No. 2003-0309 by the Planning and Zoning Director on
July 21, 2004, and
WHEREAS, an appeal of the Zoning Board decision was filed by the Morningside Civic
Association, Inc., and Rod Alonso, Ron Stebbins, Scott Crawford and Elvis Cruz; and
WHEREAS, as a conclusion to the various appeals to the Circuit Court and District Court of
Appeal, a mandate was issued directing the City Commission to comply with the April 25, 2012 Order
of the Court; and
WHEREAS, the City Commission after careful consideration of this matter, finds the application for
Class II Special Permit does meet the applicable requirements of Zoning Ordinance No. 11000, as
amended, and deems it advisable and in the best interest of the general welfare of the City of Miami
and its inhabitants to affirm the decision of the Zoning Board and the Planning and Zoning Director
and deny the appeal of Class II Special Permit as hereinafter set forth;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI,
FLORIDA:
Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by
reference and incorporated as if fully set forth in this Section.
Section 2. The City Commission denies the appeal and affirms the decision of the Miami Zoning
Board, ZB 2004-0928, adopted October 4, 2004, in accordance with the opinion of the Third District
Court of Appeal, thereby granting, the Class II Special Permit Application No. 03-0309 issued by the
Planning and Zoning Director on July 21, 2004, to allow new construction for the property located at
approximately 5101 Biscayne Boulevard, Miami, Florida, more particularly described in "Exhibit A."
Section 3. This Resolution shall become effective immediately upon its adoption and signature of
the Mayor. {1}
City of Miami Page 1 of 2 File Id: 04-01208a (Version: 1) Printed On: 11/2/2012
File Number: 04-01208a
APPROVED AS TO FORM AND CORRECTNESS
JULIE O. BRU
CITY ATTORNEY
Footnotes:
{1} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days
from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective
immediately upon override of the veto by the City Commission.
City of Miami Page 2 of 2 File Id: 04-01208a (Version: 1) Printed On: 11/2/2012
Exhibit "A
5101 Biscayne Boulevard
LEGAL, DESCRIPTION:
Lot 1 Lilock 5 of
recorded in Mot Back
AND
Lot 17 Block -5 of
reeiorcledin Plot Book
'BAY SHORE PLAZA UNIT No. 3' °cording to the Plot thereof as
41 at Pogo 73 of the Public Records of Mib v-Dade County, Florido.
"BAY SHORE PIAZA UNIT No. 4' according id the Plat thereof as
4 of Page 2 of the Pugftc Records of Atiomi—Oode County, Florida.
igtrict court of tppcat
State of Florida, January Term, A.D..2012
Opinion filed April 25,2012.
Not final until disposition of timely filed motion for rehearing.
No. 3D11-1701
Lower Tribunal No. 10-344 AP
Lucia A Dougherty, on behalf of contract vendee J. Laurence
Eisenberg, Trustee,
Petitioner,
vs.
City of Miami, Florida, etc. et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami -Dade County, Jose L.
Fernandez, Migna Sanchez-Llorens, and Monica Gordo, Judges.
Goldstein, Tanen & Trench, P.A., and Susan E. Trench, for petitioner.
Julie 0.. Bru, City Attorney, Rafael Suarez -Rivas and John A. Greco,
Assistant City Attorneys, for respondent City of Miami; Kaplan Zeena LLP and
Michael A. Sastre, for respondent Morningside Civic Association.
Before WELLS, C.J. and RAMI R.EZ and LAGOA, JJ.
RAMCREZ, J.
This dispute involves the permitting process for a building in the
Morningside .area of the City of Miami. This is the third appeal of this case.
Petitioner seeks certiorari to the Circuit Court for Miami Dade County, which
ruled in its appellate capacity upon a decision from the City of Miami
Commission. Dougherty contends the Circuit Court departed from the essential
requirements of law when it affirmed the City Commission's changes to a permit
application already approved by the appropriate agency within the City. We agree,
and consequently, grant the petition.
Dougherty sought a special permit to construct a residential building
planned as a 135-foot, 14-floor, 98-unit residential building. In 2003, the .Zoning
Plans Examiner signed the Permit Referral after finding the project was in
compliance with all applicable zoning regulations. Dougherty then filed the
application with the City of Miami Planning and Zoning Department.
In the next step of the process, the City's Design Review Committee made
recommendations directed toward control of potentially adverse impacts the
proposed structure would have on the surrounding neighborhood. As a result, the
proposed building was reduced in scale, to 90 feet in height, eight floors, and 63
units. The City's Urban Development Review Board unanimously recommended
approval with those conditions. The Planning and Zoning Board ("Zoning Board"),
reviewed the Urban Development Review Board's recommendations, and found
the modified project satisfied the applicable requirements and approved the permit
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application, The Planning and Zoning Director accepted the Zoning Board's
recommendation.
After the Planning and Zoning Director's approval was issued, Morningside
Civic Association and the other citizen respondents (collectively, "Morningside"),
appealed to the Zoning Board. The Zoning Board denied the appeal. Morningside
appealed to the City Commission, which, after .a de novo hearing, reversed the
Zoning Board. Dougherty appealed to the Circuit Court, which determined the
City Commission improperly exceeded its appellate jurisdiction by considering
new evidence and not including necessary findings of fact. Morningside failed in
its appeal of that decision to this Court.
On remand from the first appeal, the City Commission conducted a de novo
hearing, and approved the permit but required a further height reduction to 3.5 feet
from the previously approved height. Dougherty appealed again, and the Circuit
Court affirmed the City Commission. Dougherty sought certiorari from this Court,
which granted the petition. Dougherty v. City of Miami, 23 So. 3d 156 (Fla. 3d
DCA 2009). The Circuit Court determined the City's legislation permitted City
Commission review of the record from the Zoning Board, not a de novo review of
the permit application's merits. After appeal to this Court, the Circuit Court's
determination became binding as the law of the case. See Dougherty, 23 So. 3d at
157.
3
On remand from the second appeal, the City Commission conducted a de
novo review, and again imposed the 35-foot height limitation. Dougherty appealed
to the Circuit Court, which denied relief in a PCA opinion. Dougherty now seeks
certiorari.
When we address a petition for second -tier certiorari, we determine whether
the circuit court afforded the parties due process and adhered to the essential
requirements of law. See Custer Med. Ctr. v. United Auto Ins. Co., 62 So. 3d
1086, 1092 (Fla. 2010). Our role requires "assessment of the gravity of the error
and the adequacy of other relief." Id. (quoting Haines City Comm. Dev. Co. v.
Higgs, 658 So. 2d 523, 531 (Fla. 1995)). "The writ functions as a safety net and
gives the upper court the prerogative to reach down and halt a .miscarriage .of
justice where no other remedy exists." Broward Cnty., v. G.B.V. Tel Ltd., 787
So. 2d 838, 842 (Fla. 2001). The lower court's application of the wrong standard
of review can be corrected through certiorari. Id. at 845.
The law from which we measure the departure in this case was established
in an earlier appeal. "Under the law of the case doctrine, questions of law that
actually have been decided on appeal must govern the case in -the same court and
in the trial court through all subsequent stages of the proceedings." State, Dep't of
Revenue v. Bridger, 935 So. 2d .536, 538 (Fla. 3d DCA 2006). The lower court's
failure to follow the law of the case warrants certiorari because such failure
4
exceeds the court's role in the appellate process. See Bridger, 935 So. 2d at 539;
see also Parker Family Trust I v. City of Jacksonville, 804 So. 2d 493, 498 (Fla. 1st
DCA 2001); accord Dougherty, 23 So. 3d at 158.
In this case, the circuit court erred when it affirmed the City Commission.
The law of the case required the City Commission to conduct a limited appellate
review of the Zoning Board, not a de novo review. The applicable standard of
review was a question of law actually decided in the earlier appeal. Despite this,
the City Commission record shows that it either: a) considered additional evidence,
rather than relying upon the evidence already in the record when evaluating if the
permit could survive; or b) rejected the evidence upon which the Zoning Board
relied, without any basis. Either process amounts to de novo review. The City
Commission endeavored to rehear the evidence and objections, rather than review
whether the Zoning Board correctly affirmed the Department of Planning and
Zoning Director's determination to grant the permit. This process was contrary to
the law of the. case. The City Commission's de novo review deprived Dougherty
of the previously successful application without any legal basis and allowed the
respondents an additional bite at the apple not contemplated under either the City's
Code or the appellate pronouncements in this case.
As the Florida Supreme Court has stated, our certiorari jurisdiction in these
types of cases is limited. G.B.V. Int'l., Ltd., 787 So. 2d at 845 ("Once the district
5
court granted certiorari and quashed the circuit court order—i.e., once the court
halted the miscarriage of justice the district court's job was ended."). Thus,
because we can only affect the Circuit Court's, and not the City Commission's,
decision, we grant the petition for writ of certiorari, and quash the Circuit Court's
PCA decision, We note, however, that allowing the special exception granted by
the Zoning Board, after it performed its delegated duty under the City's Code, to
again be rescinded would be unfair. See, e.g., Jesus Fellowship, Inc. v. Miami -
Dade Cnty., 752 So. 2d 708, 710 (Fla. 3d DCA 2000). If we were able to direct the
City Commission to affirm -the Zoning Board's determination, the result which
would have occurred but for the City Commission's erroneous de novo review
almost eight years ago, we would do so.
P Wells, C.J., specially concurring.
For the same reasons stated in my special concurrence in Dougherty v. City
of Miami, 23 So. 3d 156, 163 (Fla. 3d DCA 2009), I agree that the most recent
decision from the Appellate Division of the Circuit Court must be quashed:
{W}hile I cannot agree with the reasons set forth by the
appellate division in its July 2006 opinion for reversing the City
commission's decision to deny the instant permit, I nonetheless agree
with the majority herein that by virtue of that opinion and this court's
refusal to review it, the Commission was obligated on remand to: (1)
limit its review to the record before the ZAB; and (2) state its reasons
for any determination that it made. It would also appear that by virtue
of the appellate division's reliance on the zoning code prior to its
January 2004 amendment, this is the version of the code to be applied
below.
6
Lucia A. Dougherty v. City of Miami, Florida, et al.,
Wells, C.J., specially concurring.
For the same reasons stated in my special concurrence in Dougherty v. City of
Miami, 23 So. 3d 156, 163 (Fla. 3d DCA 2009), I agree that the most recent
decision from the Appellate Division of the Circuit Court must be quashed:
[W]hile I cannot agree with the reasons set forth by the
appellate division in its July 2006 opinion for reversing the City
commission's decision to deny the instant peiniit, I nonetheless agree
with the majority herein that by virtue of that opinion and this court's
refusal to review it, the Commission was obligated on remand to: (1)
limit its review to the record before the ZAB; and (2) state its reasons
for any determination that it made. It would also appear that by virtue
of the appellate division's reliance on the .zoning code prior to its
January 2004 amendment, this is the version of the code to be applied
below.
The City Commission's August 3, 2010 Resolution, on its face, confirms
that under the previously mandated "limited review," Doughtery is entitled as a
matter of law to its Class II permit without the modifications imposed in the
August 3 Resolution. The Appellate Division's decision to affirm denial of this
permit must, therefore, be quashed with instructions on remand to reverse the
August 3 Resolution and remand to the City Commission for further legislative
action consistent with the statements made herein.
M A N DAT E
DISTRICT COURT OF APPEAL OF FLORIDA
THIRD DISTRICT
DCA # 3D11-.1701
LUCIA A. DOUGHERTY, ETC.,
vs.
CITY OF MIAMI, ETC.,
ET AL.,
This cause having been brought to this Court by appeal, and after due
consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had
in said cause in accordance with the opinion of this Court attached hereto and
incorporated as part of this order, and with the rules of _procedure and laws of the State of
Florida.
Case No. 10-344 AP
WITNESS, The Honorable LINDA ANN WELLS, Chief Judge of said
District Court and seal of said Court at Miami, this day July 18, 2012.
CC W/O OPINION: Susan E. Trench; Julie 0, Bru, Rafael Suarez -Rivas and John A Greco; Michael A. Sastre
la
\_0
IN THE CIRCUIT COURT OF THE.•
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI- DADE COUNTY, FLORIDA
APPELLATE DIVISION
CASE NO: 10-344 AP
LOWER CASE NO: R10-0220
LUCIA A. DOUGHERTY, on behalf of
Contract Vendee J. LAURENCE EISENBERG,
Petitioner,
vs.
CITY OF MIAMI, FLORIDA, etc. at al.,
Respondents.
ORDER
C
;11-111,S: CAfTSE:.havang:come..before..the..0 ourt..on,the..Manciate: o.f:the ::'Third,.I iaricr:.Court. -w
of Appeal, the Court accordingly grants Appellant's Petition for Certiorari. Further, in
accordance with the Mandate, the August 3 Resolution by the City of Miami is hereby reversed
and remanded to the City Commission for further action consistent with the opinion rendered by
the Third District Court of Appeal on April 25, 2012. Any further proceedings in this case are to'
be in accordance with the aforementioned opinion by the Third District Court of Appeal.
It is so ordered this
day of September 2012.
OS ` ANDEZ ON A GORDO
CIRCUIT . OURT JUDGE CIR T COURT JUDGE