HomeMy WebLinkAbout11th Judicial Circuit Order Appellate DivisionNOT FINAL UNTIL TIME EXPIRES
TO FILE RE -HEARING MOTION,
AND, IF FILED, DISPOSED OF.
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT, IN
AND FOR MIAMI-DADE COUNTY,
FLORIDA
JACOB PFERRER, CATALINA APPELLATE DIVISION
GUTIERREZ, et al. CASE NO: 14-004 AP
Petitioners,
VS.
CITY OF MIAMI, FLORIDA and
WAL-MART STORES EAST, LP
Respondents.
Opinion filed:
,2014.
On Petition for Writ of Certiorari from a Resolution of the Respondent, City of Miami
Paul C. Savage, for Petitioners.
Joan Carlos Vs/izel, Mark A. Emanuele, Richard Lydecker, Manuel Diaz, of Lydecker/Diaz, for
Respondent, Wal-Mart Stores East, LP.
John A. Greco, Victoria Mendez, Forrest L. Andrews, for Respondent, City of Miami,
Before VENZER, BRENNAN, and VERDE, JJ.
PER CURIAM.
Petitioners, by writ of certiorari, ask the Court to quash Resolution R-13-0471 (File
No.13-0103ii). This Resolution of the City of Miami Commission (Commission) affirms the
decision of the Planning, Zoning and Appeals Board (PZAB) to deny the appeal of a Class II
Special Permit issued by the Planning and Zoning Director (Director) to Wal-Mart Store East LP
(Wal-Mart). The Class II Special Permit administratively authorizes the construction of a Wal-
Mart Superstore, as well as Liner Shops or Modern Glass Frontage, in Miami's Midtown district.
Petitioners live and work within the Midtown Special District and adjacent Wynwood
community.
FAC
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PR
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HISTORY'
On August 21, 2012, Wal-Mart submitted its application to the Department of Planning
and Zoning for a Class II Special Peimit to allow construction of a Super Wal-Mart located at
3055 North Miami Avenue, which is zoned Midtown Miami West under the City of Miami
Zoning Code. Prior to issuing the peunit, the Director referred Wal-Mart's application to the
Urban Development Review Board (UDRB) and the Neighborhood Enhancement Team Office
(NET Office), in conjunction with Department of Public Works and the Office of Transportation.
Both the UDRB and NET office recommended rejection of the application for a Class II Special
Permit.
Two meetings were held before the UDRB in February, 2013. At the conclusion of the
second meeting held on February 20th, UDRB recommended that the Director deny the
application for a Class II Special Permit due to the "applicant's failure to comply with Miami 21
with respect to the liner uses on both North Miami and Midtown Boulevard on the second and
third level; and the "failure of the applicant to address the rooftop parking, screening consistent
with Miami 21." Despite UDRB's recommendation, the Director conditionally approved the
permit in his final decision with findings on August 12, 2013.
On August 27, 2013, the Petitioners appealed the Director's decision to the PZAB. A
public hearing was held before the PZAB on October 2, 2013. At the conclusion of the hearing,
the PZAB denied the appeal of the Class II Special Peimit by a vote of 6 to 4, with no findings.
The Petitioners filed their appeal of the PZAB Resolution to the City Commission on October
GOVE'' ING REG ATIONS
1) The current Zoning Code for City of Miami, adopted May 2010, is referred to as "Miami 21."
2) The previous Zoning Code for the City of Miami is referred to as Zoning Ordinance 11000.
3) A Class II Special Permit is an administrative approval under the previous Zoning Code (Ordinance
11000).
4) Ordinance 11000 Midtown Special District regulations (also referred to as Special District 27 or SD-27
regulations) were incorporated into Miami 21 through their inclusion into Appendix C to Miami 21.
5) Miami 21, Section 2.2.1.1 states:
This Code replaces the Zoning Ordinance for the City of Miami, also known as Ordinance
11000, except that Section 627, "SD-27 Midtown Special District" is hereby retained and
incorporated as Appendix C hereto and all provisions of Ordinance 11000 referred to in Section
627 shall be applied to Midtown Special District, providing however that within the SD-27
Special District the Planning, Zoning and Appeals Board and procedures related to appeals
thereto set out by this Miami 21 Code shall replace the Zoning Board and procedures related to
appeals thereto in Ordinance 11000.
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17, 2013.
A de novo, quasi—judicial public hearing was held before the Commission on November
21, 2013. The Petitioners argued that the PZAB approval was an end -run around the City's
variance requirements. The Petitioners presented, among other evidence, an urban planning
expert, lMark Alvarez, who focused on the Project's noncompliance with the 65% pedestrian use
frontage requirement along the North Miami Avenue, the lack of liner uses and failure to meet
the setback requirements on the second and third floors, and the non-compliance with the
required number of loading berths under the Code.
In response, Wal-Mart's counsel presented Ana Gelabert, a former Planning Director for
the City of Miami. Ms. Gelabert testified that the proposed Project met the required 65% active
pedestrian frontage along North Miami Avenue, along with the liner use and setback
requirements under the Code. She further testified that the proposed Project complied with the
Code's continuous design requirement, and required number of loading berths.
The Commission voted 3-0 to deny the appeal and uphold the Director's decision. The
Commission adopted Resolution R-13-0471, (file number 13-10130ii), which contained the
following findings:
(1) The proposed project will be beneficial to the surrounding area by providing
new retail and service facilities while creating jobs for the area;
(2) The proposed project, as presented reflects revisions and refinements made
based on the comments from reviewing Departments and the Urban
Development Review Board, and is appropriate in scale and size pursuant to
Section 1305 and the Midtown Overlay District 6.27.2 Midtown Miami West;
(3) The proposed project is in compliance with the Miami Comprehensive
Neighborhood Plan in that it promotes good urban infill and is consistent with
the Buena Vista East Regional Activity Center (RAC), designation as applied to
this property; and
(4) This application has been reviewed pursuant to Section 1305 of Zoning
Ordinance 11000 and the Miami 21 Code, Appendix C: Midtown overlay District
6.27.2 Midtown Miami West and found to be sufficient.
S ANDARD OF REVIEW
In reviewing the decision of quasi-judicial action of an administrative body, the circuit
court must determine whether the decision is supported by competent substantial evidence,
whether the essential requirements of the law have been observed, and whether due process has
been accorded. Gity of Deerfield Beach v. Valiant, 419 So. 2d 624, 626 (Ha. 1982); Florida
Power & Light Co. v. City of Dania Beach, 761 So. 2d 1089, 1092 Fla. 2000); Broward Cray. v.
G.B.V. Int '1, Ltd., 787 So. 2d 838, 843 (Fla. 2001).
ANALYSIS
Petitioners present several grounds for quashing the City Commission's Resolution,
including that the Commission departed from the essential requirements of the law by: (1)
ignoring the mandatory language under the Code concerning referrals to the NET Office and
UDBR; (2) failing to set forth specific written findings sufficient to satisfy the Code's
requirements under Section 1305; and (3) granting variances under the guise of the Special
Permit.
As to the first issue, this Court addresses whether the Commission failed to follow the
essential requirements of the law by ignoring the mandatory language under the Code concerning
referrals to the NET office and UDBR. Petitioners contend that the Code requires that the
Director's decision be "affected and limited" by reports received on referrals. Since UDRB and
the NET Office rejected the application, the Director had no authority to approve the Class II
Special Permit under the Code. In contrast, the Respondents argue that the Director is only
required to consider the recommended reports and is not bound by the recommendation of the
UDRB or NET Office under the Code.
Class II Special Permits are governed by Article 13 of Ordinance 11000, which states:
It is intended that Class II Special Permits be required where design, character
and compatibility involve substantial issues relating to planning policy and
impact on surrounding area as it relates to aesthetics.
The Director of the Department of Planning and Zoning shall be solely
responsible for review for compliance and consideration of applications for
Class II Special Permits.
The Director shall make such referrals to other officers, agencies, boards or
departments as are required by regulations relating to the particular special
permit and may make other referrals deemed necessary by him before arriving
at his decision. Decisions of the Director regarding Class II Special Permit
shall be affected and limited by reports received on referral as provided in Article
15, Section 1502. [emphasis supplied]
The plain language of Article 13 states that the Director shall be solely responsible for
review for compliance and consideration of applications for Class II Special Permits. Although
SD-27 Design Standards state that "[a]11 architectural design plans will be reviewed by the
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UDRB as part of the Class to permitting process for compliance with these standards," it does
not state that the Director must follow the UDRB's recommendation. In fact, at the February 20,
2013 meeting, the UDRB members openly acknowledged that their decision was a non -binding
recommendation to the Director. Additionally, Article 13 refers to Article 15, Section 1502,
which states that "Nile director shall give full consideration to advice or information received as
a result of such referrals in arriving at his decision." Thus, based on the plain language of the
Code, the Director is not bound by the recommendations in the reports.
Nevertheless, the Director must consider the recommendations in the reports and his
decision shall be affected and limited by such recommendations. In his final decision, the
Director stated that "comments and recommendations received from the Department and Boards
have been duly considered in this final decision." At the Commission hearing, the Director
testified that the "substance of what the Urban Development Review Board (UDRB)
communicated to us throughout the hearing was accepted and translated into modifications to the
proposal to address those concerns." Moreover, the record shows that the design plans were
revised after the UDRB meetings. Therefore, it appears that the Director considered the UDBR
and NET Office recommendations and his final decision was affected and limited by these
reports.2
Next, Petitioners argue that Section 1305, Ordinance 11000, requires the Commission to
set forth written findings addressing the applicable regulations in Ordinance 11000, the specific
provisions in Section 627.2, Appendix C, Miami 21, or the concerns of UDBR.3 As a result,
Petitioners contend that the Commission departed from the essential requirements of the law by
issuing a generalized Resolution with no factual basis affirming the decision of the PZAB. In
contrast, the Respondent, Wal-Mart, contends that procedures governing the decision made by
the Commission in its appellate capacity are governed by Miami 21. Under Miami 21, no
2 Under Zoning Codes Miami 21 and Ordinance 11000, the Commission is required to conduct de novo
review of the proceedings below. As a result, there is no dispute that the Commission properly conducted
a de novo review of this case. Since the Commission's review is de novo and it makes its own findings
and determination, any error by the Director would seem to be irrelevant.
The Petitioners also raise the issue of whether the Director's written findings and determinations were
sufficient. However, as noted earlier, the Commission conducted a de novo review of the record that the
Director based his final decision upon. Since the Commission made its own findings and determination,
the issue regarding the Director's findings is moot.
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written findings are required. In the alternative, Wal-Mart contends that even if the Commission
was required to make findings and determinations, its finding were sufficient and set forth
sufficient information to afford meaningful judicial review. Respondent, City of Miami, did not
argue the applicability of Section 1305, but contends that the Commission's Resolution sets forth
written findings and determinations that fully complied with this requirement.
Miami 21, Section 2.2.1.1, states:
This Code replaces the Zoning Ordinance for the City of Miami, also known as
Ordinance 11000, except that Section 627, "SD-27 Midtown Special District" is
hereby retained and incorporated as Appendix C hereto and all provisions of
Ordinance 11000 referred to in Section 627 shall be applied to Midtown Special
District, providing however that within the SD-27 Special District the Planning,
Zoning and Appeals Board and procedures related to appeals thereto set out by
this Miami 21 Code shall replace the Zoning Board and procedures related to
appeals thereto in ordinance 11000. [emphasis supplied]
Ordinance 11000, Section 1305 "Considerations generally, criteria; standards; findings
and deteiminations required" reads as follows:
The City agent, board, or commission that is charged with decisions concerning
special each of the permits shall review the proposal before them and shall make,
or cause to be made, written findings and determinations in accordance with
established applicable criteria set forth in this zoning ordinance and the City
Code."
When looking to Section 2.2.1.1, Miami 21, it indicates that all provisions of Ordinance
11000 apply to Midtown Special District, except for appellate procedures. To determine whether
Section 1305 falls within the scope of appellate procedures, one must look to the plain language
of this provision. Section 1305 is captioned Icjonsiderations generally, criteria, standards,
findings and determinations required." The word(s) "appeal" or "appellate procedures" is
missing from this provision. In comparison, Section 1311 of the same Ordinance is captioned
"Appeals from decisions on special permits." Consequently, based on the plain language of
Section 1305, it appears to fall outside the scope of "appellate procedures" that are governed by
Miami 21. In light of the foregoing, this Court finds that Section 1305 is applicable to the facts
of this case.
The question then becomes whether the findings made by the Commission are sufficient
to satisfy the Code's requirements. It is well established that Ifiailure of an agency to adhere to
its own regulations constitutes a departure from the essential requirements of the law." Lucia
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Dougherty v. City of Miami and Morningside Civic Assoc., Inc. 13 Fla. L. Weekly Supp. 959a
(Fla. 1 lth Cir. July 14, 2006) cert. denied, 944 So. 2d 370 (Fla. 3d DCA 2006) citing to Rosa
Hotel Developers, Inc. v. City of Delray Beach, 10 Fla. L. Weekly Supp. 600b (F1a.15th Cir. Ct.
2003).
As noted above, Section 1305 requires "written findings and determinations in
accordance with established applicable criteria set forth in this zoning ordinance and the City
Code." In Lucia Dougherty v. City of Miami and Morningside Civic Assoc., Inc. 13 Fla. L.
Weekly Supp. 959a (Fla. 1 lth Cir. July 14, 2006), the Eleventh Judicial Circuit Appellate
Division held that this Section required written findings specifically setting forth considerations
and standards that are supported by competent substantial evidence. The Dougherty court went
on to state that the "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." Id
When examining the Commission's findings after conducting its de novo review, it appears to set
forth sufficient information to afford a meaningful judicial review by this Court. The
Commission's findings address the regulations that the Project needed to be in compliance with
and set forth the Project's compliance therewith. The findings do not appear to be conclusory or
based on one generalized statement, as in the Dougherty case. Therefore, the written findings of
the Commission are sufficient as a matter of law.
Finally, the most compelling argument of the Petitioners is that the Class II Special
Pen lit improperly granted variances, which are subject to a stricter standard of review and notice
and public hearing process. In other words, Petitioners allege that a variance from the Code
cancels the Class II Special Permit and requires that the application be resubmitted under other
applicable provisions governing variances. In contrast, the Respondents argue that they
presented competent, substantial evidence establishing the Project's compliance with the
requirements under the Code.
In reviewing a decision of an administrative agency, an appellate circuit court cannot
reweigh the evidence or make findings. Department of Highway Safety & Motor Vehicles v.
Stenmark 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006). Competent, substantial, evidence is "such
evidence as will establish a substantial basis of fact from which the fact at issue can be
reasonably inferred." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The test is whether
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there exists any competent substantial evidence to support the decision maker's conclusion;
evidence supporting a contrary decision is irrelevant. Dusseau v. Metropolitan Dade County
Board of County Commissioners, 794 So. 2d 1270, 1276 (Fla. 2001); Lee County v. Sunbelt
Equities, II, Ltd. Partnership, 619 So. 2d 996, 1003 (Fla. 2d DCA 1993)("The circuit court is not
permitted to . . . reweigh that evidence (e.g., where there may be conflicts in the evidence), or to
substitute its judgment about what should be done for that of the administrative agency.")
Additionally, case law shows that a Iclounty's interpretation of its own ordinance is
entitled to deference." Donovan v. Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012) citing to
Verizon Florida, Inc, v. Jacobs, Jr,, 810 So. 2d 906 (Fla. 2002) (stating that courts ordinarily
defer to a governmental body's interpretation of a statute or rule unless the agency's expertise is
not required or its interpretation conflicts with the plain and ordinary meaning of the provision.)
At the hearing before the Commission, the Petitioners argued that the Wal-Mart Project
did not comply with the Code's building continuity requirements, liner uses and garage set back
requirements, and loading berth requirements. Petitioners presented an urban planning expert,
Mark Alvarez, who testified as to the following four relaxations from the Code: 1) the Project's
non-compliance with the 65% pedestrian use frontage requirement along the North Miami
Avenue; 2) the second story parking structure had incomplete liner uses or inadequate setback; 3)
the Project's non-compliance with the parking located within the setback on N.E. 31st Street;
and, 4) the Project's noncompliance with the required number of loading berths.
In response, Wal-Mart presented Ana Gelabert, a former Planning Director for the City of
Miami from 1998 through 2010. While referring to a diagram to illustrate her point, Ms.
Gelabert testified that the proposed Project met the required 65% active pedestrian usage
frontage along North Miami Avenue by providing a combination of doors, transparency and
types of activities behind the walls. In fact, she testified that the Project exceeded this
requirement. Next, the Design Standards define "liner uses," as "storefronts and building fronts
that conceal a larger use from view, such as a parking garage." Section 627, in substantially
similar terms, states that liner uses are "[Nuilding uses that serve to conceal uses such as parking
garages and service areas." Based on the foregoing, Ms. Gelabert testified that the Project
complied with the "liner uses" requirement because the second floor of the Project has a building
front that conceals the larger use from view. In addition, she also testified that the third floor
was in compliance with the set -back requirement for "parking facilities" because the "parking
spaces" were set back 85 feet. She stated that it has always been the interpretation of the City
that the intent of the Code is for the parking "spaces" to be set back 85 feet, not the entire
parking structure. Lastly, Ms. Gelabert testified that Design Standard 2.4, which requires that
"all sides of the structure shall be continuous in design," refers to architectural elements, not
style. Since the Project is continuous in design architecturally, it satisfies the building continuity
requirement.
When examining the evidence in the record, Ms. Gelabert's testimony appears sufficient
to uphold the Commission's findings that the requirements for active pedestrian usage frontage
and liner uses were met. With respect to the setback requirements, the phrase "parking facility"
is not defined under the Code and inherently ambiguous. As noted earlier, a county's
interpretation of its own ordinance is entitled to deference, unless its interpretation conflicts with
the plain and ordinary meaning. Consequently, Ms. Gelabert's testimony finding that the setback
requirements were met because the parking "spaces" were setback 85 feet is sufficient to
establish a substantial basis of fact from which the Commission can conclude that Wal-Mart's
Project complied with this requirement. Additionally, the meaning of the phrase "continuous in
design" is ambiguous. Likewise, Ms. Gelabert's interpretation that "continuous in design" refers
to architectural elements, not style, is sufficient evidence to support the Commission's decision
that the project met the building continuity requirement.
Nevertheless, Section 627.2.15 of the Code reads "The off-street loading requirements
shall be as follows: 2. For non-residential uses: (d) For non-residential floor area up to two
hundred and fifty thousand (250,000) square feet, three (3) berths total." Such language does not
appear to have been subject to previous judicial scrutiny. At the hearing, Ms. Gelabert testified
that this provision has always been interpreted as the "minimum amount" of berths permitted
under the Code. Consequently, she testified that since the Project provides for five (5) loading
berths, it was in compliance with the required number of loading berths under the Code.
However, as case law shows, when the language of the statute or rule is unambiguous and
conveys a clear and ordinary meaning, there is no need to resort to other rules of statutory
construction. See Verizon Florida Inc., 810 So. 2d at 908. Black's Law Dictionary defines
"total" as "[w]hole, not divided, lacking no part, entire, full, complete, the whole amount."
Black's Law Dictionary 1490 (6th ed. 1990). Thus, when examining the plain language of
paragraph 2(d) of this this provision, the phrase three (3) berths "total" does not appear to be
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ambiguous. The plain meaning of the word "total" will not permit it to be read as a "minimum."
As noted earlier, "[f]ailure of an agency to adhere to its own regulations constitutes a departure
from the essential requirements of the law." Lucia Dougherty v. City ofMiami and Morningside
Civic Assoc., Inc. 13 Fla. L. Weekly Supp. 959a (Fla. 1 lth Cir. July 14, 2006). Since the Project
provides for five (5) berths and the Code requires three (3) berths total, this Court finds that the
Commission's Resolution finding that the Project complied with the requirements under the
Code is a departure from the essential requirements of the law.
For the above -stated reason, we hereby QUASH the Commission's decision as set forth
in Resolution R-13-0471 (File No.13-0103ii), and REMAND this cause for proceedings
consis nt herein.
ELLEN SUE VEN
CIRCUIT COUR
Z'16:64/6/41
VICTORIA BRENNAN
CIRCUIT,, COURT JUDGE
MARIA VERDE
CIRCUIT COURT JUDGE
COPIES FURNISHED TO COUNSEL
OF RECORD AND TO ANY PARTY
NOT REPRESENTED BY COUNSEL
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