HomeMy WebLinkAboutCourt Ordersbirb J3ttrict court of ppcat
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 O. 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 RAIVIIREZ and LAGOA, JJ.
RAMIREZ, 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
2
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 35 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. Intl 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
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 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.
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.
irb
ttrict court of ppcat
State of Florida, July Term, A.D. 2009
Opinion filed October 7, 2009.
Not final until disposition of timely filed motion for rehearing.
No. 3D09-639
Lower Tribunal No. 08-178
Lucia A. Dougherty, on behalf of contract vendee J. Laurence
Eisenberg, Trustee,
Petitioner,
vs.
City of Miami, Florida, a Florida municipal corporation,
Morningside Civic, Association Inc., a Florida corporation, Rod
Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami -Dade County, Israel
Reyes, Nushin G. Sayfie, and George A. Sarduy, Judges.
Goldstein, Tanen & Trench, Susan E. Trench, and Catherine C. Grieve, for
petitioner.
Julie O. Bru, Rafael Suarez -Rivas, and John A. Greco, Miami City
Attorneys; Kaplan Zeena, Michael A. Sastre; Jonel Newman, for respondents.
Before RAMIREZ, C.J., and WELLS and SUAREZ, JJ.
RAMIREZ, C.J.
This is a Petition for a Writ of Certiorari seeking to quash the opinion of the
Appellate Division of the Eleventh Judicial Circuit Court in and for Miami -Dade
County, dated November 13, 2008. Because the circuit court failed to apply the
law of the case, we grant the Petition and quash the decision below.
On July 14, 2006, the circuit court, sitting in its appellate capacity, reversed
and remanded the October 31, 2005 decision of the City of Miami Commission.
The City had reversed the Miami Zoning Board's decision granting a Class II
Special Permit to the petitioner for a proposed project to be constructed at 5101
Biscayne Boulevard. The circuit court held that the City Commission had failed to
follow the essential requirements of law with respect to its reversal of the Zoning
Board decision in two ways: (1) it had exceeded its appellate review jurisdiction by
considering new evidence at the appeal hearing held before it; and (2) it had failed
to provide findings of fact in support of its decision to reverse the Zoning Board.
The Morningside Civic Association filed a Petition for Writ of Certiorari which
this Court denied. See Morningside Civic Ass'n, Inc. v. Dougherty, 944 So. 2d
370 (Fla. 3d DCA 2006). The matter was remanded for the City Commission,
sitting as an appellate body, to conduct a "limited to review of the record received
from the Zoning Board," and to render findings of fact in support of its appellate
decision.
2
Upon remand, the City Commission held a de novo proceeding and
applied substantive provisions of the Miami Zoning Ordinance that were not in
effect at the time of this permit application. While the City Commission denied
the Association's appeal and granted the permit, it made its approval subject to
the petitioner agreeing to reduce the height of the Project from the previously
approved 87 feet to 35 feet.
A "first tier" certiorari petition followed in the circuit court, seeking to
quash the City Commission's decision and the removal of the height restriction
placed upon the permit approval. The circuit court denied that Petition for Writ
of Certiorari on November 13, 2008, relying specifically on Holladay v. City of
Coral Gables, 382 So. 2d 92 (Fla. 3d DCA 1980), and holding that the City
Commission, on remand, was permitted to conduct a de novo review and change
the permit because it had amended ordinances during the pendency of the first
appeal. This "second tier" petition follows.
Our review on second -tier certiorari examines whether the circuit court
(1) applied the correct law and (2) afforded procedural due process. Miami -
Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003)
(citing City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)).
This review includes determining whether the circuit court correctly applied the
law to the facts of the case. Our decision is based on narrow legal grounds-
3
the law of the case. The doctrine of law of the case mandates that "questions of
law actually decided on appeal must govern the case in the same court and the trial
court, through all subsequent stages of the proceedings." See State v. McBride,
848 So. 2d 287, 289 (Fla. 2003) (quoting Fla. Dep't of Transp. v. Juliano, 801 So.
2d 101, 105 (Fla. 2001)); U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061 (Fla.
1983); R & B Holding Co., Inc. v. Christopher Adver. Group, Inc., 994 So. 2d 329,
331 (Fla. 3d DCA 2008); Thornton v. State, 963 So. 2d 804 (Fla. 3d DCA 2007).
There is no doubt that the 2006 circuit court appellate decision actually decided
that the City Commission had to limit its review to the record received from the
Zoning Board and that it was required to render findings of fact in support of its
decision. The only exception to this doctrine is found in Strazzulla v. Hendrick,
177 So. 2d 1 (Fla. 1965), in that an appellate court has the power to reconsider and
correct an erroneous ruling that has become the law of the case where a prior
ruling would result in a "manifest injustice." Id. at 5. The respondents have not
argued manifest injustice. Thus, the City Commission was bound by the law of the
case to comply with the prior mandate of the circuit court in its 2006 opinion, and
the 2008 appellate decision failed to apply the correct law when it failed to enforce
its prior decision.
4
For these reasons, we grant certiorari and quash the November 13, 2008
decision of the appellate division of the circuit court, with directions to enforce its
prior 2006 opinion and mandate.
5
Lucia A. Dougherty, etc., v.
City of Miami, Florida, etc, et al.
Case No. 3D-09-639
Wells, J., specially concurring.
I concur in the majority opinion concluding that under the law of the case
doctrine, the City Commission on remand following Morningside Civic Assoc.,
Inc. v. Dougherty, 944 So. 2d 370 (Fla. 3d DCA 2006), was (1) restricted to a
record review of the evidence adduced before the City's Zoning Appeals Board
(ZAB) when reviewing that board's decision to grant a Class II Special Permit to
Petitioner here, and (2) was obligated to state its reasons for rejecting the ZAB's
determination. These two requirements were imposed on the City by the Appellate
Division of the Circuit Court in that opinion dated July 14, 2006 and became
binding on the City Commission following our denial of certiorari review. Id.
I now write separately to clarify these two requirements, both of which
amount to incorrect statements of the law.' As the majority opinion explains, this
matter initially came to the City Commission following a determination by the
City's ZAB that Petitioner's Class II Special Permit application should be granted.
1 I acknowledge that by our denial of certiorari we are bound by
Morningside Civic Ass'n, Inc. v. Dougherty, 944 So. 2d 370 (Fla. 3d DCA 2006),
for the purposes of this matter on remand.
6
Following a public hearing during which both proponents and opponents of this
application were heard, the City decided to deny the permit. The Petitioner sought
review in the Appellate Division of the Circuit Court. In an opinion dated July
14, 2006, the appellate division, relying on the City's zoning ordinance as it
existed before the code's amendment in January 2004, reversed the City
Commission's denial and remanded for reconsideration. It did so for two
reasons: first, because it found that section 1305 of the City of Miami's zoning
code obligated the City Commission to state its reasons for rejecting the ZAB's
permit determination and that the Commission had failed to do so; and second,
because section 1201 of the code restricted the City Commission to a record, rather
than permitting a de novo, review of the evidence adduced before the ZAB.
Neither of these determinations is correct.
As to the first point, the appellate division explained:
In the instant case, the Commission did not make specific
findings of fact. Florida case law does not require specific findings of
fact provided that the ruling is supported by competent substantial
evidence. Bell South Mobility, Inc. v. Miami -Dade County, 153 F.
Supp. 2d 1345 (Fla. USDC So. Dist. 2001), Board of County
Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla.
1993). However, the City of Miami Zoning Code imposes certain
standards.
Section 1305 of the City of Miami Zoning Code expressly
provides that:
City agents, agencies, or boards charged with decisions
concerning special permits shall make, or cause to be
7
made, written findings and determinations concerning
such of the following matters as are applicable in the
case, shall reflect such considerations and standards
specifically in the record.. .
Based on Section 1305, the City Commission was mandated to
include in their ruling written findings which specifically set forth the
considerations and standards that are supported by substantial
competent evidence. The City Commission failed to comply with this
requirement, basing its ruling on a general statement. The critical
reason for requiring an administrative agency to state their
conclusions and orders with specificity is to facilitate judicial review
and bolster decisions. The City is bound by the procedural
requirements imposed by the code and cannot renege on its promise to
its citizens to uphold the code. Failure of an agency to adhere to its
own regulations constitutes a departure from the essential
requirements of the law. As such, the ruling of the City Commission
fails to observe the essential requirements of the law, the second
prong of first tier appellate review.
(Some citations omitted).
This is a misstatement of the law. As the Florida Supreme Court confirmed
as far back as 1993 in Board of County Commissioners of Brevard County v.
Snyder, 627 So. 2d 469, 476 (Fla. 1993), "[w]hile they may be useful, the board
will not be required to make findings of fact. However, in order to sustain the
board's action, upon review by certiorari in the circuit court it must be shown that
there was competent substantial evidence presented to the board to support its
ruling." Thus, findings of fact and conclusions of law, while useful, are not
necessary to support a quasi-judicial land use determination unless the ordinance at
issue requires it.
8
Here, the pre -amendment version of section 1305 of the City of Miami's
Zoning Code, on which the appellate division relied in its opinion, mandated no
such findings. This provision expressly governed "City agents, agencies, or
boards charged with decisions concerning special permits"; it did not govern the
City itself, the entity on which the authority has been conferred to create such
agents, agencies and boards:
Sec. 1. Creation and existence.
The inhabitants of the City of Miami, Florida, within the
boundaries hereinafter designated, or within such boundaries as may
hereafter be established, shall continue to be a body politic and
corporate under the naive the "City of Miami," and as such shall have
perpetual succession and may use a common seal.
Sec. 4. Form of government .. .
(a) General description. The form of government of the City of
Miami, Florida, provided for under this Charter shall be known as the
"mayor -city commissioner plan," and the city commission shall
consist of five citizens, who are qualified voters of the city who shall
be elected from districts in the manner hereinafter provided. The city
commission shall constitute the governing body with powers (as
hereinafter provide) to pass ordinances adopt regulations and exercise
all powers conferred upon the city except as hereinafter provided... .
Sec. 38. City planning and zoning board.
(a) Comprehensive planning. The city commission is empowered
to plan for the future development of the city and, as an integral part
9
of the planning process, to take all lawful actions necessary to
implement plans made... .
(b) Authority to implement comprehensive plans. The city
commission is authorized to ... adopt and enforce:
(1) controls on the use of lands and waters;
(2) zoning of lands and waters;
(3) regulations for the development or subdivision of land;
(4) building, plumbing, electrical, gas, fire, safety, sanitary, and
other codes; and
(5) minimum housing codes.
(c) Creation of implementing boards. The city commission shall
by ordinance create such appropriate board or boards as it may deem
necessary to carry out the functions set out in subsections (a) and (b)
above....
City of Miami Charter § § 1, 4, 38.
Thus, by its terms, the version of section 1305 relied on by the appellate
division in its July 2006 opinion did not apply to the City Commission and did not
alter the rule set forth in Snyder. The City Commission was not, therefore,
required by this provision to specifically set forth the considerations and standards
that supported its quasi-judicial decision to reverse a determination of its zoning
board.2
2 This provision was amended in 2004 to impose this requirement on the City
Commission.
10
As to the second point, that is, the appellate division's conclusion in its July
2006 opinion that the City Commission was precluded from hearing evidence in
addition to that heard by the ZAB, the appellate division stated:
Section 1201 of the City of Miami Zoning Ordinance provides
that:
The City commission shall have only the following
duties: (4) Reviewing, upon request, decisions of the
Zoning Board when it serves in an appellate capacity
with respect to decisions of ... the director of planning,
building and zoning. (Emphasis added).
The usage of the word "only" limits the scope of "review" in an
appellate capacity. By comparison, Section 1305 of the City of
Miami Zoning Ordinance, expressly proves that "new materials may
be provided by the Zoning Board where such materials are pertinent
to the determination of the appeal." This express provision empowers
the Zoning Board to receive new materials. There is no similar
provision for the City Commission to receive new evidence.
Accordingly, the City Commission was limited to review of the record
received from the Zoning Board. The nature of inquiry narrows as the
case proceeds up the judicial ladder. City of Deerfield Beach v.
Vaillant, 419 So. 2d 624 (Fla. 1982). By conducting its own de novo
assessment, the City Commission usurped the authority of the Zoning
Board. G.B.V. International, Ltd., 787 So. 2d at 846. As such, by
reversing the Zoning Board's issuance of the Special Permit, the City
Commission failed to follow the essential requirements of the law.
This too is incorrect. Nothing in the version of section 1201 of the City's
zoning code relied on by the appellate division prevents the City Commission from
hearing new or additional evidence while reviewing a decision from its ZAB. This
provision states only that the Commission has the authority to review ZAB
11
decisions when the ZAB acts in an appellate capacity with regard to decisions of
the directors of planning, and building and zoning:
The City Commission shall have only the following duties:
(4) Reviewing, upon request, decisions of the Zoning Board when it
serves in an appellate capacity with respect to decisions of ... the
director of planning, building and zoning.
City of Miami Zoning Ordinance § 1201 (2004) (emphasis added).
The "it" referred to in this version of section 1201 is the ZAB, not the City
Commission. See City of Miami Zoning Ordinance § 1203 "Duties of Zoning
Board" (confirming that the zoning board "[s]erv[es] as an instrument of review of
decisions of the director of the department of planning, building and zoning in
connection with the issuance of Class II Special Permits"). Section 1201 says
nothing about the manner in which the Commission may review such ZAB
decisions.
It is, of course, well accepted that local government decisions regarding
building permits are quasi-judicial in nature and are subject to de novo review. See
Broward County v. G.B.V. Int'1, Ltd., 787 So. 2d 838, 842 n.4 (Fla. 2001)
(confirming that local government decisions on building permits, site plans, and
other development orders are quasi-judicial in nature). Such proceedings, as we
have stated, are those at which at least the parties must be allowed to present
12
evidence and cross-examine witnesses. See Jennings v. Dade County, 589 So. 2d
1337, 1340 (Fla. 3d DCA 1991).
As confirmed during the public hearing held to amend the City's zoning
code to address the appellate division's July 14, 2006 decision, the City,
historically, has applied section 1201 to treat "appeals" from the ZAB as quasi-
judicial proceedings conducted at public fora where all interested parties may
appear and present evidence:
[By the City Attorney]: ... Sometimes [sic] in 1990 ... [the courts]
said that you needed to act more like judges than legislators, and they
imposed this quasi-judicial type of proceeding['] that you have been
hearing for the last 14 whatever years, which means that when a P &
Z item comes in front of you, you need to pay particular attention to
the evidence and the testimony, and you need to weigh it. You need
to find competent, substantial evidence on the record. You need to
afford due process, you know, all of these things that we have been
advising you and that you are very adept at doing. Something has
happened recently .... In the last few months, a decision of this
commission was appealed to the appellate division of the circuit court
.... The case, very briefly, goes something like this, Ms. Gelabert
approves a special Class II Permit. That decision of hers gets
appealed to the Zoning Board. The Zoning Board agrees with her,
and the neighbors appeal that decision and comes [sic] to the
Commission. The Commission looks at it; hears evidence all over
again because that's the way that it has always happened, and the
Commission goes against the Zoning Board and Ms. Gelabert... .
When [the developer goes] to court to challenge this Commission's
decision, they were successful in convincing the court that this
3 See, e.g., Snyder, 627 So. 2d at 474 (stating generally that a local government
acts in a legislative capacity when it formulates a general rule of policy; whereas, it
acts in a judicial capacity when it applies such a general policy rule. The former
acts are subject to a "fairly debatable" standard of review by the courts; whereas,
the latter must be supported by competent, substantial evidence.).
13
Commission did not act appropriately because you consider[ed] the
matter de novo.... [N]ow you are literally under court order .. .
when you're dealing with appeals from the Zoning Board ... you
have to act like appellate lawyers, not like trier [of] fact lawyers,
which imposes an additional burden, which means that you cannot —
when it comes to you, you cannot listen to the case de novo. You
cannot hear the neighbors. You cannot hear the experts. You cannot
hear the developer's experts. You must limit yourself to the
transcript, to the record that has been passed out to you ... of what the
Zoning Board did.
http://egov.ci.miami.fi.us/meetings/2006/1/1208_M_City Commission_06-01-
26Verbatim Minutes_(Long).pdf, City of Miami Commission Meeting Minutes
1/26/06
(emphasis added); see also
http://egov.ci.miami.fl.us/LegistarWeb/Attachments/20326.pdf, City of Miami
Planning Department "Planning Fact Sheet" (Jan. 11, 2006) (stating "[r]ecently, a
Circuit Court ruled that appeals from the Zoning Board to the City Commission are
to be conducted like appellate hearings. However, the City's practice is to conduct
these hearings de novo "new hearing" where all parties can address the City
Commission with new evidence, etc. This amendment [to address the appellate
division's July 14, 2006 opinion] is simply to clarify that this is the City's
practice.").
As both the version of section 1201 applied by the appellate division in its
July 2006 opinion and the historic application of this provision confirm,4 there was
4 In fact, the neighborhood association's response filed herein concedes that
"neither the City, nor the developers or neighborhood groups, had ever interpreted
14
and is no basis for determining that the City Commission was limited to
conducting an "appellate review" similar to that conducted by the courts and as
contemplated by the rules of appellate procedure when reviewing a ZAB
determination.5 The Commission was, therefore, well within its authority to
or applied Section[] 1201 ... in the restrictive manner proscribed by the circuit
court ...."
This provision has now been amended to expressly provide for de novo review:
Sec. 1201 Duties of city commission.
Under this zoning ordinance, the city commission shall have the
following duties, including, without limitation:
(4) Reviewing and considering, in accordance with the applicable
provisions of this Zoning Ordinance upon request, by hearing de
novo, decisions of the zoning board when it serves in a review
capacity with respect to decisions of either the zoning administrator or
the directors of planning, building and zoning ... .
City of Miami Zoning Ordinance § 1201. In conjunction therewith, article 20 of
the code was amended to permit the Commission to take and consider new
evidence at such de novo proceedings:
Sec. 2004. City commission powers on review; hearing de novo.
The city commission shall conduct a hearing de novo,as a body of
original jurisdiction, upon any appeal and/or review from an
appealable decision under the terms of this zoning ordinance, as
amended. New evidence or materials may be received by the city
commission where such evidence or materials are pertinent to a
determination of the appeal. ... The city commission on review shall
have full power to affiuiii, reverse, or modify, in whole or in part, with
15
conduct a de novo review of the ZAB's decision to issue the instant permit and to
hear new evidence.
Thus, while 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.
or without conditions, the action of the zoning board or other
appealable decision pursuant to this zoning ordinance.
City of Miami Zoning Ordinance § 2004.
16
• NOT FINAL UNTIL TIME, EXPIRES
TO FILE MOTION FOR
AND IF FILED, DISPOSED OF.
• IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA •
CASE NO. 08-178 AP
RESOLUTION NO. R-08-0101
LUCIA A. DOUGHERTY, on behalfof
Contract Vendee J. Laurence Eisenberg,
Trustee,
Petitioner,
vs.
• CITY- OF MIAMI, FLORIDA, a Florida
Municipal corporation, MORNINGSIDE
• CIVIC ASSOCIATION, INC., a Florida
cotporation, ROD ALONSO, ROB STEBBINS,
SCOTT CRAWFORD and ELVIS CRUZ,
Respondents.
0Pini°11 Filed: November 13, 2008
An Appeal from a resolution of the Respondent City of Miami
SUSAN E. TRENCH, Goldstein, Tanen. & Trench, P.A., for Petitioner.
RAFAEL SUAREZ7RIVAS, Assistant City Attorney, J1iLIE O. BRU, CitiAt:torney, for • •
Respondent City ofMiami.
MICHAEL A. SASTRE, Wilson, Elser, Moskowitz, Edehnan & Dicker, LLP, and JONEL
NEWMAN, University ofMiami School ofLaw, foj• Respondent Mt) op usMe Civic
Association.
Before ISRAEL U. REYES, NUSHIN G. SAYFIB, and GEORGE A. SA1WI
• PER CURIAM.
PROCEDURAL AND FACTUAL BACKGROUND •
We begin initially by setting out the extensive factual and procedural history of this case,
as doing so is necessary to thoroughly understand the complicated nature of this legal action.
On November 24, 2003,.Lucia A, Dougherty, on behalf of contract vendee J. Laurence
Eisenberg, Trustee (the Petitioner), filed or caused a permit application (the Application) with
payment to be filed with The City of Miami (the City) Planning and Zoning Department (the
Zoning Dept.). Specifically, the Petitioner filed for a Class II Special Permit For New
Construction (the Special Permit), which is required on property located in the SD-9 Biscayne
Blvd. North Overlay District Regulations, for a 135 foot, 14th floor, 98 unit residentialbuilding
with a maximum allowable height of 140 feet. Four days earlier, the Zoning Dept. Plans
Examiner had signed the permit referral acknowledging that he had found the project (the
Project) to be in compliance with all zoning regulations. At the time, the allowable building
height was established by floor -area ration limits and an upper level setback resulting in a 14
floor limitation.
The next day, November 25, 2003, the City's Design Review Committee (the Design
Review Committee) for the first of approximately five times, reviewed the Project plans. As a
result of these reviews, several modifications and.changes were made at the request of the City.
On January 1, 2004, the City of. Miami Commission (the City Commission) amended
Miami Zoning Ordinance (MZO) 1305. However, any completed application filed before this
date was exempted from these newly amended provisions.
On March 17, 2004, the Urban Development Review Board (the .Urban Review Board)
unanimously approved the subject application. On March 25, 2004, the Zoning Dept issued an.
intended decision to approve the Special Permit with conditions because the project . was in
compliance with the pre -amended versions of MZO 1305.
On April 29, 2004, the City Commission enacted Ordinance 12350 (the Height
Ordinance) imposing a 95 foot height restriction on new construction in the SD-9 area of Miami,
the area that is the subject of this appeal, becoming effective on May 29, 2004.
On July 21, 2004, Zoning Dept. Director issued a final decision approving the Special
Permit subject to conditions that the Petitioner comply with the concerns addressed by Urban
Review Board, the Design Review Committee, and submit the plans for review and approval
before the issuance of the building permit.
On August 23, 2004, the Petitioner filed its completed application, which included
additional height modifications in compliance with the first amendment.
On September 27, 2004, the City Commission adopted a second amendment to SD-9
regulations imposing a 40 foot height restriction for garages and 25 foot with a 45 degree slope
for the rear setback point of properties abutting R-1 or R-2 zoned areas.
On October 4, 2004, the Morningside Civic Association, Inc. (Respondent Morningside)
appealed the Zoning Dept. Director's decision to the City Zoning Board (the Zoning Board)!
The Zoning Board denied Respondent Momingside's . appeal based on competent substantial
evidence as codifiedin resolution ZB-2004-0928 making findings of fact in the process. The
record before the Zoning Board included several sets of plans reflecting the numerous revisions
required by the City and made by the Petitioner including the dramatic downsizing in accord
1 Although this Court is not relying on any opinions issued by the City's Attorney, the attorney initially
did confirm that the project was governed by the MZO in effect at the time of the initial filing of the
Application although it later opined to the contrary..
with City experts and experts' determinations that the Project was in compliance with MZO
1305.
On October 26, 2004, the City Rear Setback Ordinance (12594) became effective.
On October 27, 2004, the next day, the Zoning Dept. approved the Special Permit.
On November 18,. 2004, the City Commission heard and granted Respondent
Momingside's appeal of the Zoning Board's decision of October 4, 2004 and revoked the
granting of the Special Permit thereby overturning the Zoning Board's decision.
On September 22, 2005, the City Commission enacted resolution R-04-0764 reflecting
that the Project did not meet the zoning requirements of Ordinance 11000 (the ordinance that.
amended MZO 1305). The resolution, however, misstated the record below in that it states the
zoning board ruled by a vote of 8-0 to deny the decision issued on. the Application (2003-0309)
by the Zoning Dept. Director on July 21, 2004. However, what the record shows is that the
Zoning Board voted 8-0 to deny Respondent Momingside's appeal and to uphold the decision of
the Zoning Dept.'s Director on July 21, 2004, to issue the Application (2003-0309).
Significantly, the City Commission heard the appeal de novo based on "longstanding practices"
and not pursuant to any then existing law or ordinance allowing for such hearings. The City
Commission heard testimony constituting new evidence not previously presented to the Zoning
Board. Without making specific written findings, the City Commission issued a general
statement that the Special Permit did not meet the applicable requirements of Ordinance 11000,
as amended.
The Petitioner subsequently filed its first Petition for Writ of Certiorari to this Court that
later resulted in Court's opinion in Dougherty v. City of Miami, 13 Fla. L. Weekly Supp. 959a
(Fla. 11t Circ. Ct. July 14, 2006) discussed infra. While the City's decision granting
Respondent Morningside's appeal of the Zoning Board's decision was on appeal.as
aforementioned resulting in Dougherty2, the City, on February 23, 2006, enacted an amendment
to the MZO codifying its longstanding practice of hearing appeals from the Zoning Board de
novo. Previous to this date, there was no ordinance permitting de novo hearings of the type that
occurred here.
On July 14, 2006, this Court released its opinion reversing the City's reversal of the
Zoning Board's denial of Respondent Morningside's appeal. Id. In that opinion, this Court
wrote that:
In the instant case, the Commission did not make specific findings of fact. Florida
case law does not require specific findings of fact provided that the ruling is
supported by. competent substantial evidence. BellSouth Mobility, Inc. v. Miami -
Dade County, 153 F. Supp. 2d 1345 (S.D. Fla. 2001), Board of County.
Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993).
However, the City of Miami Zoning Code imposes certain standards.
Section 1305 of the City of Miami Zoning Code expressly provides that
City agents, agencies, or boards charged with decisions concerning special
permits shall make, or cause to be made, written findings and determinations
concerning such of the following matters as are applicable in the case, shall reflect
such considerations and standards specifically in the record.. .
Based on Section 1305, the City Commission was mandated to include in their
ruling written findings which specifically set forth the considerations and
standards that . are supported by substantial competent . evidence. The City
Commission failed to comply with this requirement, basing its ruling on a general
statement. The critical reason for requiring an administrative agency to state their
conclusions and orders with specificity is to facilitate judicial review and bolster ,
decisions. City of Winter Park v. Metropolitan Planning Organization for the
Orlando Urban Area, 765 So. 2d 797 (Fla. 1st DCA 2000). The City is bound by
the procedural requirements imposed by the code and cannot renegeon its
promise to its citizens to uphold the code. Gulf & Eastern Development
Corporation v. City of Fort Lauderdale, 354 So. 2d 57 (Fla. 1978). Failure of an
agency to adhere to its own regulations constitutes a departure from the essential
requirements of the law. Rosa Hotel Developers, Inc. v. City of Delray Beach, 10
Fla: L. Weekly Supp. 600b (Fla. 15th Cir. Ct. June 12, 2003). As such, the ruling
213 Fla. L. Weekly Supp: 959a (Fla. 11th Circ. Ct. July 14, 2006).
of the City Commission fails to observe the essential requirements of the law, the
second prong of first tier appellate review.
A second issue in the case at bar concerns the admission of new evidence at the
hearing before the City Commission. The new evidence considered by the City
Commission was not presented to the Zoning Board. The traditional scope of
appellate review limits consideration of matters to materials available to the lower
court or tribunal. Fla. R. App. P. 9.190(c). Conducting a de novo hearing exceeds
the authority of appellate review. Broward County v. G. B. V. International, Ltd.,
787 So. 2d at 846 (Fla. 2001).
Section 1201 of the City of Miami Zoning Ordinance provides that:
The City Commission. shall have only the following duties: (4) Reviewing, upon
request, decisions of the Zoning Board when it serves in an appellate capacity
with respect to decisions of ...the director of planning, building and zoning.
(Emphasis added)
The usage of the word "only" limits the scope of "review" in an appellate
capacity. By comparison, Section 1305 of the City of Miami Zoning Ordinance,
expressly provides that "new materials may be provided by the Zoning Board
where such materials are pertinent to the determination of the appeal." This
express provision empowers the Zoning Board to receive new materials. There is
no similar provision for the City Commission to receive new evidence.:
Accordingly, the City Commission was limited to review of the record received
from the Zoning Board. The nature of inquiry narrows as the case proceeds up the
judicial ladder. City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla.1982).
By conducting its own de novo assessment, the City Commission usurped .the
authority of the Zoning Board. Broward County v. G. B. V. International Ltd., 787
So. 2d at 846. (Fla. 2001). As such, by reversing the Zoning Board's issuance of
the Special Permit, the City Commission failed to follow the essential '.
requirements of the law.
Based on the foregoing procedural errors, this matter is reversed and 'remanded'
for further proceedings consistent with this opinion and with controlling case law.
set forth in Morningside Civic Association v. City of Miami Commission, 917 So.
2d 293 (Fla. 3d DCA 2005).
Id. In Morningside Civic Association v. City of Miami Commission, 917 So. 2d 293 (Fla:3
DCA 2005), the Third District, in granting certiorari, explained that:
Morningside... argues that the 2004 version of the ordinance...applies to this case
and that the circuit court appellate division applied the incorrect law by relying on
the pre-2004 version of section 1305. We agree.
The question before us is which version of section 1305 applies to this case. The
developer initially filed a complete application in the fall of 2003. The developer
takes the position that since it submitted a complete application in 2003, it follows
that the pre -January 2004 version of the ordinance is applicable.
However,; after. the Planning Advisory Boardrecommended that the application be
denied;: the developer made the decision to modify its proposal rather than
pursuing the original proposal before the City Commission.
In January 2004 the amendments to section 1305 took effect. The modified
application was submitted thereafter, on February 10, 2004.
The City's zoning resolution states, in the second "whereas" clause, that "on
February 10, 2004 ... [the developer] submitted a complete Application for the
previously reviewed Major Use Special Permit application...." (Emphasis added).
By the terms of -the resol the City trea d the p1-c of being coin
on February 10, 2004. This was after the effective date of the new ordinance.``"`
FN2. Additionally, in Section of the resolution, the Commission
states: "The application for a Major Use Special Permit, which was
submitted on February 10, 2004, and on file with the Department
of Planning and Zoning in the City of Miami, Florida, shall be
relied upon generally for administrative interpretations and is
incorporated by reference."
Section 1305.2.1 of the zoning code provides in substance for grandfathering of
"any complete application for development filed prior to January 1, 2004...."
(Emphasis added). As stated in the zoning resolution, the application in this case
was not complete until February 10, 2004. That being so, the January 2004
amendments are applicable to this application.
The exercise of "second -tier" certiorari jurisdiction is appropriate where the
circuit court appellate division has applied the incorrect law. See Miami Dade
County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); City of
Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The appellate
division opinion makes clear that the appellate division panel relied on the pre-
January 2004 version of section 1305, whereas the panel should have applied the
amended version which went into effect in January 2004.
The developer argues that Momingside's position has not been properly preserved
for appellate review. We disagree. Morningside relied on the correct version of
section 1305 when it was before the City Commission, and raised the point again
in the circuit court appellate division.
For the stated reasons, we quash the ruling of the circuit court appellate division.
Certiorari granted.
Id.
Apparently, the Parties entered into a stipulation and on July 9, 2007, pursuant to the.:,.
stipulation, agreed that the decision of the Miami Zoning Board was waived and that the Speer
Permit be heard by the City Commission. The Zoning. Board then adopted, the aforementioned
stipulation by a vote of 5-0. It then appeared that the City Commission was once again poised to
hear the matter de novo. Based on the above, the Petitioner filed a motion to enforce this Court's
September 6, 2006, Dougherty mandate.3 On January 4, 2008, Judge Bagley, in his capacity as
the Administrative Judge of the Appellate Division of this Court, denied the motion citing a lack
of jurisdiction.
On February 28, 2008, the City Commission again heard this matter and ruled that due to
the MZO amendments permitting de novo hearings, enacted during the time this matter was first ;.
on appeal, it could hear this remanded matter de novo and apply the amended version of MZO
1305. During said hearing, Respondent Morningside presented new evidence. The City did not
discuss the Zoning Board's prior decision. The Petitioner, of course, objected. At the end of the
hearing, the City ruled that the Project was in compliance with amended MZO 1305 except as to
the height of the Project. Accordingly, it ruled that the Project should be reduced to 35 feet. The
City then passed Resolution 08-0101 documenting the above action by the City Commission. I
was signed by the City Mayor on March 8, 2008. The Petitioner then filed the instant Petition :
that forms the subject matter of this opinion.
ARGUMENTS
Petitioner
The City of Miami's imposition of a 35 foot height restriction on appellate review,
contravention of its own zoning code, constituted a substantial departure from the essenti
requirements of the law. Or stated another way, the City of Miami did not apply the correct law
when it imposed a 35 foot height restriction on appellate review.
The City of Miami improperly exceeded its role as a second tier appellate body.
313 Fla. L. Weekly Supp. 959a (Fla. 11th Circ. Ct. July 14, 2006).
The City of Miami acted in violation of this Court's mandate as a result of itsdecision in
Dougherty.4
The City of Miami denied the Petitioner procedural due process by applying the zoning
ordinances amendments that, by their very terms, were inapplicable to the permit application.
Morningside
review.
Under the City of Miami Zoning Ordinance, height maximums are not entitlements.
The City of Miami followed the correct procedure and applied the correct standard of
The City of Miami relied on the correct zoning ordinance.
City of Miami
Based on the findings of the City of Miami, the Circuit Court applied the correct law.
The City Of Miami did not exceed its role as an appellate body and adhered to this
Court's mandate.
The City Of Miami applied the MZO 1305 version applicable to the subject permit and
afforded the Petitioner due process.
JURISDICTION
We have jurisdiction. See Fla. R. App. P. 9.030(c)(2) and 9.100(f); Dusseau v.
Metropolitan Dade County Board of County Commissioners, 794 So.: 2d 1270. (Fla. 2001)
Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000).
STANDARD OF REVIEW
In City of West Palm Beach Zoning Bd of Appeals v. Education Development Center,
Inc., 504 So. 2d 1385 (Fla. 4th DCA 1987), the Fourth District succinctly stated that when a p
413 Fla. L. Weekly Supp. 959a (Fla. 11th Circ. Ct. July 14, 2006).
seeks review of an order of an administrative agency of a municipality by a petition for
certiorari, that petition must be heard by the circuit court as of right and the circuit court must
determine whether the agency has: (1) accorded procedural due process, (2) observed the
essential requirements of law, and (3) supported its findings by substantial competent evidence.
However, it is well settled that a circuit court is not empowered to disapprove findings of a board
or administrative agency unless the record is devoid of substantial competent evidence to support
the agency's decision. Skaggs-Albertson's v. ABC Liquors, Inc., 363 So. 2d 1082 (Fla. 1978);
City of Tampa v. Islands Four, Inc., 364 So. 2d 738 (Fla. 2d DCA 1978). Additionally, Florida
follows the Majority rule that the zoning regulation in effect at the time of the decision of an
appellate court is controlling as opposed to that in effect when the proceedings were instituted or
when the administrative agency entered its decision upon the application. Holladay v. Coral
Gables, 382 So. 2d 92 (Fla. 3d DCA 1980), State Farm Mut. Auto. Ins. Co. v. Stylianoudakis,
946 So. 2d 647 (Fla. 4th DCA 2007) (An appellate court generally is required to apply the law in
effect at the time of its decision.); see also Anderson, American Law of Zoning (4th ed.) § 27.38
(If a zoning ordinance has been amended between the moment of the administrative decision and
the moment of review, the amendment will apply.) Thus, where a restrictive amendment was
adopted after the application for a permit, the reviewing court will judge the administrative
decision on the basis of the amendment. Id An appellate court reviewing administrative conduct
will usually apply the law as it exists at the moment of appellate decision. Anderson, American
Law of Zoning (4th ed.) § 28.11. Thus, if an amendment to the applicable zoning ordinance:
outlaws a use for which a permit is sought, a denial of such permit will be sustained and
mandamus to require issuance of such permit will be denied, although the amendment became
effective after the denial of which the applicant complains. Id. The same result follows a repeal
10
of an ordinance during the pendency of the action. Id.
LEGAL ANALYSIS
The binding precedent from Holladay, supra, leaves this Court with no choice but to hold
that the City, on original remand after the first appeal, was permitted to conduct a de novo
hearing because it had amended the ordinance during the pendency of the first appeal.
Additionally, although the Petitioner is correct that the City of Miami denied the Petitioner
procedural due process by applying the amendments to the height ordinance which were, at that
time, inapplicable to the subject permit application, this Court, because of the Holladays rule,
must now apply those same amended, and now in effect and controlling, height ordinances.
Additionally, because the City Commission conducted a de novo hearing and received evidence,
the City Commission's findings were supported by this additional competent substantial
evidence.
We, however, are troubled that the City, even after a completed application is filed, can
amend an ordinance to the detriment of an applicant and apply the newly minted amendment
during the process leaving an applicant with no appellate remedy.
Here, the Dougherty6 Court ruled that the Petitioner filed its completed application on
August 23, 2004, and that it included additional height modifications in compliance with the first
amendment. Thus, since at the time, the height ordinances were amended before the City
Commission began its appellate review, it was limited to applying the height ordinances in effect
on or before August 23, 2004. Also, the City Commission, at that time, was also not permitted to
apply the second amendment to SD-9 regulations imposing a 40 foot height restriction for
5 382 So. 2d 92 (Fla. 3d DCA 1980).
613 Fla. L. Weeldy Supp. 959a (Fla. 11th Circ. Ct. July 14, 20.06).
garages and 25 foot with a 45 degree slope for the rear setback point of properties abutting R-1
or R-2 zoned areas that became effective on September 27, 2004. While the City's decision
granting Respondent Morningside's appeal of the Zoning Board's decision was on appeal as
aforementioned resulting in the Dougherty opinion, the City, on February 23, 2006, enacted an
amendment to the MZO codifying its longstanding practice of hearing appeals from the Zoning
Board de novo. Previous to this date, there was no ordinance permitting de novo hearings of the
type that occurred here.
On February 28, 2008, upon remand, the City Commission again heard this matter and
ruled that due to the MZO amendments permitting de novo hearings, enacted during the time this
matter was first on appeal, could hear this remanded matter de novo and apply the amended
version of MZO 1305. During said hearing, Respondent Morningside presented new evidence.
The Petitioner, of course, objected. The City did not discuss the Zoning Board's prior decision.
At the end of the hearing, the City ruled that the Project was in compliance with amended MZO
1305 except as to the height of the Project. Accordingly, the City ruled that the Project should be
reduced to 35 feet even though the Special Permit had previously been approved for 135 or 140
feet.
Although some jurisdictions have found that a prior zoning decisions vests an applicant
with certain rights accruing under a prior zoning ordinance, e.g. O'Hare International Bank v
Zoning Bd. of Appeal, City of Park Ridge, 347 N.E.2d 440 (1st Ill. App. Ct. 1976); in Florida,
applicants have no vested rights to zoning claims. Epifano v. Town of Indian River Shores, 379
So. 2d 966 (Fla. 4th DCA 1979). In any event, we are bound by the doctrine of stare decisis.
13 Fla. L. Weekly Supp. 959a (Fla. 11th Circ. Ct. July 14, 2006).
12
Metropolitan Dade County v. Department of Health and Rehabilitative Services, 683 So. 2d 188
(Fla.. 3d DCA 1996) (Although courts are free to express their disagreements with decisions of
higher courts, trial courts are not free to disregard them in the adjudicatory process.).
Accordingly, the Petition is hereby DENIED.
COPIES PUNISHED TO
COUNSELOF RECOaD
TOANY P_
BY
«.
13
MANDATE
FROM CIRCUIT COURT
APPELLATE DIVISION
ELEVENTH JUDICIAL CIRCUIT
MIAMI-DADE COUNTY, FLORIDA
05-409 AP
LUCIA DOUGHERTY a/a/0 Laurence Eisenberg
PETITIONER
vs.
CITY OF MIAMI, FLORIDA, MORNINGSIDE CIVIC ASSOCIATION
INC., Rod Alonso, Ron Stebbins, Scott Crawford, and Elvis Cruz
RESPONDENTS
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.
Lower Tribunal Case Numbertsl: R040764
WITNESS the Honorable Jerald Bagley, Administrative Judge of the
Appellate Division of the Circuit Court of the Eleventh Judicial Circuit of
Florida and the seal of the said Circuit Court at Miami, August 09, 2006,
HARVEY RUVIN,
Clerk of the Circuit Court of
the Eleventh Judicial Circuit
in and for - _ .i Made County,
By:
COPIES FURNISHED TO:
COUNSEL OF RECORD AND
ANY PARTY NOT REPRESENTED BY COUNSEL
Mandate. form. dot
NOT FINAL UNTIL TIME EXPIRES
TO FILE RE -HEARING MOTION
AND, IF FILED, DISPOSED OF
LUCIA DOUGHERTY, on behalf of
Contract vendee, J. Laurence Eisenberg,
Trustee
v.
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI DADE
COUNTY, FLORIDA
Petitioner, _ APPELLATE CASE NO: 05-409 AP
LOWER CASE NO. R040764
CITY OF MIAMI, FLORIDA,
a Florida municipal corporation,
M.ORNINGSIDE CIVIC ASSOCIATION,
INC., a Florida corporation, ROD ALONSO,
RON STEBBINS, SCOTT CRAWFORD and
ELVIS CRUZ,
Respondents.
Amended opinion filed this
An appeal from the City of Miami Commission.
2006.
Susan Trench, Esq., for the Petitioner.
Michael A. Sastre, Esq., for the Respondents.
Jorge L. Fernandez, Esq., Office of the City Attorney, for the City of Miami, Florida.
Before FERNANDEZ, SCHWARTZ, and PEREYRA-SHUMINER, JJ.
FERNANDEZ, Judge.
Having thoroughly reviewed the pleadings and papers in this case, the ruling of
the City of Miami Commission should be reversed and remanded.
Lucia A. Dougherty, is the Petitioner and the zoning applicant on behalf of the
record title owner, Chetbro, Ltd. Morningside Development LLC is the project
developer. The subject property is located at 5101 Biscayne Boulevard in Miami,
Florida. The proposed development is regulated by Section 609 of the City of Miami
Zoning Code, SD-9 Biscayne Boulevard North Overlay District Regulations. In
accordance with the requirements of the SD-9 Regulations, the Petitioner applied for a
Class II Special Permit. The proposed development would be a mixed -use project,
consisting of residential units with retail space on the ground floor. On November 20,
2003, the Petitioner's application was referred to the City of Miami Zoning Department
for review of the Class II Special Permit.
On April 29, 2004, the first amendment to the SD-9 Regulations was adopted
imposing a ninety-five (95) foot height restriction on construction for new residential
projects located in the district. This amendment to Zoning Ordinance 11000 became
effective thirty days after adoption. On July 21, 2004, the City of Miami Zoning
Department issued a final decision approving the Class II Special Permit for the proposed
development subject to conditions. The conditions required the Petitioner to revise its
plans and incorporate design modifications recommended by the City of Miami Planning
and Zoning Department. A day later, on July 22, 2004, the Commission passed on its
first reading the second amendment to the SD-9 Regulations, mandating a twenty-five
(25) foot height limitation on rear setback structures, such as garages abutting a
2
residential zoned area. This specific height restriction applied to properties over 150 feet
in depth as of April 29, 2004.
On August 23, 2004, the Petitioner filed its completed application, which included
additional height modifications in compliance with the first amendment. The second
amendment was adopted on its second and final reading held on September 27, 2004. On
October 27, 2004, the Petitioner was granted the Class II Special Permit. The
Respondent, Morningside Civic Association appealed the issuance of the permit to the
City of Miami Zoning Board. On December 13, 2004, the Zoning Board affirmed the
issuance of the special permit. Thereafter, Respondent, Morningside Civic Association
appealed the decision of the Zoning Board to the City of Miami Commission (hereinafter
"Commission.").
On September 23, 2005, the Commission convened a hearing on the subject
appeal. At this hearing, the Commission heard testimony constituting new evidence
which was not presented to the Zoning Board. Without making specific written findings,
the Commission issued a general statement that "the Class II Special permit does not
meet the applicable requirements of Zoning Ordinance No. 11000, as amended." As
such, the Commission reversed the decision of the Zoning Board. Based on this ruling,
the Petitioner filed its petition for writ of certiorari requesting that the appellate court
quash the decision of the Commission.
As a preliminary matter, the Court addresses the issue of standing raised by the
Respondent. Pursuant to Section 2005 of the Miami Zoning Ordinance "an appeal may
be taken by any person or persons, jointly or severally, aggrieved by any decision of the
City Commission." Similarly, Section 163.3215, Fla. Stat. (2004) sets forth a liberalized
3
standing requirement to "allow an adversely affected third party to maintain an action."
Payne v. City of Miami, 2005 WL 3054601 (Fla. 3rd DCA 2005). Case law precedent
clearly establishes that an adversely affected party includes the "owner, developer, or
applicant for development order." Id. This Court finds that the Petitioner, as applicant,
possesses the requisite standing to assert this claim pending before the Court. Further,
the Court finds that the record title owner to the subject property remains unchanged from
the zoning application originally filed.
Florida courts have established the standards for review of local agency action on
the first -tier, circuit court level. On appeal, the circuit court must determine: (1) whether
procedural due process is accorded; (2) whether the essential requirements of the law
have been observed; and (3) whether the administrative findings and judgment are
supported by competent substantial evidence. Broward County v. G. B. V. International,
Ltd., 787 So. 2d 838 (Fla. 2001), Haines City Community Development v. Heggs, 658
So. 2d 523 (Fla. 1995).
In the instant case, the Commission did not make specific findings of fact.
Florida case law does not require specific findings of fact provided that the ruling is
supported by competent substantial evidence. Bell South Mobility, Inc. v. Miami -Dade
County, 153 F. Supp. 2d 1345 (Fla. USDC So. Dist. 2001), Board of County
Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993). However,
the City of Miami Zoning Code imposes certain standards.
Section 1305 of the City of Miami Zoning Code expressly provides that:
City agents, agencies, or boards charged with decisions concerning special
permits shall make, or cause to be made, written findings and determinations
concerning such of the following matters as are applicable in the case, shall
reflect such considerations and standards specifically in the record...
4
Based on Section 1305, the City Commission was mandated to include in their ruling
written findings which specifically set forth the considerations and standards that are
supported by substantial competent evidence. The City Commission failed to comply
with this requirement, basing its ruling on a general statement. The critical reason for
requiring an administrative agency to state their conclusions and orders with specificity is
to facilitate judicial review and bolster decisions. City of Winter Park v. Metropolitan
Plannin Or anization for the Orlando Urban Area, 765 So. 2d 797 (Fla. lst DCA 2000).
The City is bound by the procedural requirements imposed by the code and cannot renege
on its promise to its citizens to uphold the code. Gulf & Eastern Development
Corporation v. City of Fort Lauderdale, 354 So. 2d 57 (Fla. 1978). _Failure of an agency
to adhere to its own regulations constitutes a departure from the essential requirements of
the law. Rosa Hotel Developers, Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp.
600b (Fla. 15th Cir. Ct. 2003). As such, the ruling of the City Commission fails to
observe the essential requirements of the law, the second prong of first tier appellate
review.
A second issue in the case at bar concerns the admission of new evidence at the
hearing before the City Commission. The new evidence considered by the City
Commission was not presented to the Zoning Board. The traditional scope of appellate
review limits consideration of matters to materials available to the lower court or tribunal.
Fla. R. App. P. 9.190(c). Conducting a de novo hearing exceeds the authority of
appellate review. G. B. V. International , Ltd., 787 So. 2d at 846.
Section 1201 of the City of Miami Zoning Ordinance provides that:
The City Commission shall have only the following duties: (4) Reviewing,
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upon request, decisions of the Zoning Board when it serves in an appellate
capacity with respect to decisions of ...the director of planning, building and
zoning. (Emphasis added)
The usage of the word "only" limits the scope of "review" in an appellate capacity. By
comparison, Section 1305 of the City of Miami Zoning Ordinance, expressly provides
that "new materials may be provided by the Zoning Board where such materials are
pertinent to the determination of the appeal." This express provision empowers the
Zoning Board to receive new materials. There is no similar provision for the City
Commission to receive new evidence. Accordingly, the City Commission was limited to
review of the record received from the Zoning Board. The nature of inquiry narrows as
the case proceeds up the judicial ladder. City of Deerfield Beach v. Valliant, 419 So. 2d
624 (Fla. 1982). By conducting its own de novo assessment, the City Commission
usurped the authority of the Zoning Board. G. B. V. International Ltd., 787 So. 2d at
846. As such, by reversing the Zoning Board's issuance of the Special Permit, the City
Commission failed to follow the essential requirements of the law.
Based on the foregoing procedural errors, this matter is reversed and remanded
for further proceedings consistent with this opinion and with controlling case law set
forth in Morningside Civic Association v. City of Miami Commission, 917 So. 2d 293
(Fla. 3d DCA 2005).
COMES RIMMED TON
COMM OF RECORD AND
to ANY PARTY
f COUNSEL, —a--
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