HomeMy WebLinkAboutSubmittal-Grant Stearn-Supplemental Brief of Respondent to 11th Circuit Court of AppealIN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA
Appellate Division Case No. 14-004 AP
On Petition for a Writ of Certiorari from a Resolution of the City of
Miami Commission
(File No. 13-0103ii)
JACOB PFEFFER, et al.,
Petitioners,
v.
CITY OF MIAMI, FLORIDA and WAL-MART STORES EAST, LP,
Respondents.
SUPPLEMENTAL BRIEF OF RESPONDENT
WAL-MART STORES EAST, LP'S
SUBMITTED INTO'I ]
PUBLIC RECORD FOR
ITEM PZ. to I� i -fin-►�
SEPTEMBER 15, 2014
Joan Carlos Wizel
Mark A. Emanuele
Richard Lydecker
Manuel A. Diaz
LYDECKER I DIAZ
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
(305) 416-3180
Counsel for Respondent
Wal-Mart Stores East, LP
4(M) i i SubrnittAt- brc n - fttA -ivcFl t 'W it gritiL 0- pon()eni- fb
1 din Cirw i- L611Yi Of- A'ppe i (.
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Wal-Mart Stores East, LP (the "Wal-Mart") submits this supplemental brief
on the question of whether the City of Miami Commission departed from the
essential requirements of the law by giving deference to the Planning and Zoning
Department's interpretation of Section 627.2.15 as establishing a minimum number
of loading berths.
The Commission did not so depart from the essential requirements of the
law, as the Department's interpretation is not clearly erroneous, at the very least,
given the ambiguity in Section 627.2.15 arising from its reading in light of the
express legislative intent in the "INTERPRETATION" section of the Code, and
specifically Section 2301, which requires the Code's provisions to be interpreted as
"minimum requirements or maximum limitations ... adopted for the promotion of
public health, safety, morals or general welfare." Moreover, the Department's
interpretation is consistent with the legislative intent of Section 627.2.15 and the
general legislative intent of the Code. Finally, the word "total" does not change the
analysis because (a) it can be reasonably (and best) viewed as a modifying the term
"floor area," (b) the existence of multiple provisions of the Code that use the word
"total" coupled with the qualifiers minimum or maximum show that it is not meant
to impose an ultimate, restricted, no -more -and -no -less number, and (c) the one
other section of the Code that employs a combination of the words "requirement"
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and "total" without a qualifier can only be reasonably interpreted as establishing a
minimum requirement.'
I. The text of Section 627.2.15 must be interpreted in light of
the express legislative intent.
As this Court has recognized,
The law in Florida mandates that courts give substantial
deference to an administrative agency's interpretation of
a law it is charged with enforcing. See e.g., Donato v.
American Tel. & Tel. Co., 767 So. 2d 1146, 1153 (Fla.
2000). This is the general rule and should only be
deviated from when an agency's construction of a statute
is clearly erroneous or in conflict with the statute's
legislative intent. Id.2
If there is an ambiguity, deference must be given to the Department's
interpretation.3 Moreover, when examining a statute to determine if the agency's
interpretation is clearly erroneous, the Court must not —as Petitioners would have
it —approach the text with blinders, isolating a word or even a subsection from its
context and leaving the notion of purpose aside. Quite the opposite. A basic tenet
In the Response to the Petition we argued that the content of Section 627.2.15 is
itself ambiguous, given the interplay of the words "requirement" —which signifies
something is essential, but can be exceeded —and the word "total." This brief is
meant to supplement, rather than restate the arguments, so Wal-Mart has not
abandoned the arguments presented in its original Response.
2 Properties of Hamilton, Inc. v. Miami -Dade County, No. 02-484 AP, 02-520 AP,
2003 WL 24295677 (Fla. Cir. Ct. Dec. 9, 2003) (emphasis added).
3 See City of Hialeah Gardens v. Miami Dade Charter Found., Inc., 857 So. 2d
202, 206 (Fla. 3d DCA 2003); Donovan v. Okaloosa County, 82 So. 3d 801, 807
(Fla. 2012); Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002).
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of statutory interpretation is that a statute must be interpreted "to give effect to
every clause in it, and to accord meaning and harmony to all of its parts."4 Thus, a
single word cannot be read in isolation, nor can a single provision of a statute.5
Moreover, as the Third District Court of Appeal has instructed: "When the Court
interprets a statute, the Court must follow the plain meaning of the statute in light
of the express legislative intent contained in the statute's language."6 When the
legislative intent is expressed in a provision of the code that is intended to apply
generally to all provisions of the code, the Court must examine the text of any
4 Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001) (quoting
Acosta v. Richter, 671 So. 2d 149, 153-54 (Fla. 1996)).
5 Id. at 915.
6 Daneri v. BCRE Brickell, LLC, 79 So. 3d 91, 94 (Fla. 3 DCA 2012) (citing St.
Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071, 1073 (Fla. 1982))
(emphasis added). Cf. Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003) ("It is
well established that our purpose in construing a statutory provision is to give
effect to legislative intent. Legislative intent is the polestar that guides a court's
statutory construction analysis." (quotation omitted)); City of St. Petersburg v.
Siebold, 48 So. 2d 291 (F1a.1950) (legislative intent must be ascertained and
effectuated); Haworth v. Chapman, 113 Fla. 591, 152 So. 663 (1934) ("[W]hen the
intention can be ascertained with reasonable certainty, words may be altered or
supplied in the statute so as to give it effect, and to avoid any repugnancy to or
inconsistency with such intention."); State v. Hoag, 419 So. 2d 416, 417 n.2 (Fla.
3d DCA 1982) ("If a statute is to make sense, it must be read in light of some
assumed purpose. A statute merely declaring a rule, with no purpose or objective,
is nonsense."). Cf. Donato v. American Tel. & Tel. Co., 767 So. 2d 1146, 1153
(Fla. 2000) (concluding that the term at issue was not ambiguous "either by itself
or in conjunction with the other provisions within the [Act at issue].").
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given provision in that code with the goal of giving effect to the stated legislative
intent.'
II. When read in light of Section 2301, at the very least, an
ambiguity in Section 627.2.15 is evident, requiring the
Court to defer to the Department's interpretation.
Section 2301 spells out the legislative intent the Code at issue and imposes
the directive that its provisions must be interpreted as follows:
ARTICLE 23. - INTERPRETATION; CONFLICTS
Sec. 2301. - Provisions of zoning ordinance declared to
be minimum or maximum requirements.
In their interpretation and application, the provisions of
this zoning ordinance shall be held to be minimum
requirements or maximum limitations, as the case may
be, adopted for the promotion of the public health, safety,
morals or general welfare.
(Emphasis added.)
Section 627.2.15 must be read in light of this articulated legislative intent,
and, when so read, at the very least, an ambiguity is evident. Whereas Section 2301
requires that Section 627.2.15 be interpreted as imposing either a "minimum
requirement" or a "maximum limitation," Section 627.2.15 itself does not
expressly state whether it imposes one or the other.8 In fact, Petitioners propose a
See id. See also Escambia County v. Flowers, 390 So. 2d 386, 388 (Fla. 1st DCA
1980) (applying the section of the code establishing the legislative intent to
interpret a particular section within that code).
8 As proffered during oral argument, most of the provisions of the Code, consistent
with Section 2301, expressly announce if they are impose a minimum requirement
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reading that, contrary to the express legislative intent of the Code, would impose
neither —suggesting, instead, that it imposes a number of berths that can neither be
more nor less than that stated. At the very least, this evidences an ambiguity in the
provision, requiring the Court to give deference to the Department's interpretation.
III. The Department's interpretation is not clearly erroneous, as
it is consistent with the legislative intent of Section 627.2.15
and the general intent of the Code.
In the face of the ambiguity, the Department interprets Section 627.2.15 as
establishing a "minimum requirement." This decision is supported by the
legislative intent of Section 627.2.15 itself, as well as the general intent stated in
Sections 120, 210(0, and 922.
Section 627.2.15 states that, "Since it is intended to promote the most
efficient use of land ... the maneuvering of trucks within the public right of way
for the purposes of off-street loading shall be allowed by a Class II Special
Permit." In other words, the purpose to get trucks off the road, where pedestrian
traffic and active uses is desired, and instead, have off-street loading, which is
accomplished by the creation of loading berths inside the buildings. The
interpretation of the number of berths as a minimum number is consistent with this
purpose, whereas an opposite interpretation is contrary to the stated purpose.
or a maximum limitation by the use of terms like "no more than," "maximum of"
or "minimum of." Wal-Mart has compiled a record of these instances for the
Court's review, catalogued in the chart attached as Appendix "A."
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The general intent provisions of the Code similarly support this
interpretation. For instance, Section 120, which states the general intent and
purpose of the Code, states that,
It is the intent and purpose ... of this zoning ordinance .. .
to promote the public health, safety, morals, convenience,
comfort, amenities, prosperity, and general welfare of the
city and to provide a wholesome, serviceable, and
attractive community; ... to increase traffic safety and
ease transportation problems; . . . to lessen congestion,
disorder, and danger which often inhere in unplanned and
unregulated urban development.
Similarly, Section 210(f) provides that "no building or structure or part
thereof shall hereafter be erected, constructed, reconstructed, located, moved or
structurally altered, in any manner so as to ... Provide less ... offstreet loading
spaces." This evidences the desire to have more, not less loading berths, which
provide the space for offstreet loading. Finally, Section 922, which sets out general
requirements, limitations, and standards that apply to offstreet loading, states in
subsection 922.1 that " [o]ffstreet loading facilities shall be so located, designed,
improved, constructed, and maintained as to provide safe and convenient access to
and from public streets and alleys, minimal interference with normal pedestrian
flows or with movement or parking of other vehicles on the premises, and minimal
interference of traffic movement off the premises." (Emphasis added.) Allowing
for additional loading berths will minimize the possibility of heavy -loaded trucks
standing in wait in the street, thereby minimizing interference with pedestrian
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traffic and vehicular traffic. On the other hand, reducing the number of berths
would translate to more retail space, thereby increasing the capacity of the building
(i.e., more inventory), which could translate in higher traffic intensity, whereas
increasing the number of berths translates in less retail building space and less
intensity. Thus, the Department's interpretation of Section 627.2.15 as imposing a
minimum requirement of loading berths and not a maximum limitation is also
consistent with this stated purpose.
In light of the above, not surprisingly, Petitioners could proffer no reason
why the legislative intent would be to preclude more berths than those stated.
IV. The word "total" changes nothing in the analysis and does
not excuse a disregard for the express legislative intent.
As a threshold matter, and most evidently, ignoring the word "requirement"
in Section 627.2.15 and interpreting the word "total" as imposing neither a
minimum requirement nor a maximum limitation is contrary to the express intent
of the Code, and specifically contradicts Section 2301. Thus, the ambiguity of the
meaning of the section remains, and therefore, deference is owed to the
Department's interpretation. Notwithstanding, the placement of the word "total" in
the structure Section 627.2.15(2)(d), its reading in concert with the prefatory clause
which uses the word "requirements," and the use of the word "total" in other
sections of the Code show that the word is better understood to apply to the "floor
area," not the number of berths.
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First, the word "total" may be reasonably read two ways. Section
627.2.15(2)(d) states: "For non-residential floor area up to two hundred fifty
thousand (250,000) square feet, three (3) berths total." It does not state, as
Petitioners would read it, that "a total of three (3) loading berths" must be
provided. Thus, the section by itself (i.e., without regard for the express legislative
intent described in the preceding section) can be reasonably read to say either that
"a total of three (3) loading berths" is required or that "three (3) loading berths for
the total area" is required. Deference is thus owed to the Department's view.
While Wal-Mart is not aberrantly affixed to the five loading berths
incorporated in the Project, and while it is not our burden on certiorari review to
conclusively demonstrate the best interpretation of this Section, we do believe the
City's interpretation is not only reasonable, but is in fact correct. In its context, the
word "total," in our view, clarifies that the number of berths set out in Section
627.2.15 is not required for each applicant or establishment that will be located in
the Special District —be it as part of a single application or successive
applications —but for the total floor area.9 This interpretation is consistent with the
9 For example, it would be absurd to suggest that the Code would permit seven (7)
tenants/establishments in the subject parcel, each with a building of 24,999 sq. ft.,
without requiring a single loading berth under the notion that the loading berth
requirement is only triggered by an establishment's floor area of 25,000 sq. ft.
Reading "total" as modifying "floor area" precludes this absurd result and is
consistent with the Department's interpretation and practice —including its
approval of the Class II Special Permit issued for the JC Penney project in 2008 for
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general intent of the Code concerning offstreet loading requirements. See Sec.
923.4 (establishing the incremental number of berths required are to be based on
the gross, i.e. total, floor area).
Second, the prefatory clause of Section 627.2.15 states: "The off-street
loading requirements shall be as follows." (Emphasis added.) The use of the word
"requirements" suggests that, consistent with the language of Section 2301, it is a
"minimum requirement" rather than a "maximum limitation." Moreover, as argued
in Wal-Mart's Response to the Petition, even if the sentence was viewed to state a
requirement of "a total of three (3) loading berths," the fact that the word "total" is
preceded in the prefatory clause by the word "requirement" is significant. A
"requirement" is something that, while necessary, can be exceeded. See, e.g.,
Vertex Development, LLC v. Marion County, No. 5:07-cv-380-Oc-10GRJ, 2008
WL 2994259, *17 (M.D. Fla. Aug. 1, 2008) (ruling for the applicant where the
project under review exceeded the setback requirements). Thus, a requirement of a
total of three berths can be properly interpreted as meaning that, while a total of
three berths are required, that requirement can be exceeded.
this same parcel (with several establishments that each independently would
trigger the loading berth requirement provisions of Section 627.2.15, but, based on
the overall or "total" floor area, the provision was applied in the same way it was
applied to the subject Project) and the approval of the Class II Special Permit that
encompasses Target and other users (with a total serving retail area of 324,881
square feet and which contemplates eleven (11) loading berths based on the total
service area, not on independent requirements of each establishment).
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Third, a close examination of the totality of the Code reveals that in the vast
majority of instances where the word "total" is used, it is accompanied by a
qualifier like "not to exceed," "shall not exceed," "maximum," "minimum,"
"limited to," and "no more than." Compare, for example, the following sections:
Section 803.3.2 — The minimum total side setbacks to be
distributed shall be established in the following table.
Section 10.5.4.2 — When a single establishment takes up
an entire building ... there shall be no more than one
wall sign for each 150 linear feet along a street front,
with no more than 3 total on any wall.")
The use of the adjectives "minimum" and "no more than" in these Sections
serve to modify the word "total" to give it a meaning of the lowest amount possible
or the highest amount possible, as the case may be. Thus, it cannot be true that the
use of the word "total" is meant to impose an ultimate inflexible number.
Lastly, the only other section of the Code that, like Section 627.2.15, uses
the words "requirement" and "total" without a qualifier, can only be reasonably
interpreted as establishing a minimum requirement. Section 8.1.6 states:
10 Other examples of the use of the word "total" alongside a qualifier can be found
in the following sections: 504.2, 602.7.2(2), 605.4.2(1), 605.7.1(3), 605.7.2(3),
605.7.3, 606.7.1(3), 606.7.2(3), 606.8.5(1), 607.4.1(2), 607.7.2(3), 615.3.1(5),
616.12.7.2.1, 627.2.6(3), 628.8.2.1.1.1(1), 803.3.2, 803.6.1.2, 8.2.9.1, 906.7.1,
906.7.2, 906.7.4, 906.9(c), 917.9, 922.8, 926.15.1, 10.5.3.1, 10.5.3.2, 10.5.3.3,
10.5.3.4, 10.5.4.5, 10.6.3.1, 10.6.3.4, 10.6.3.6. It should be noted that in some
instances the word "total" is used as a standard of measurement (e.g., "X% of the
total ..."), which are irrelevant to the analysis, and therefore, are omitted from this
sample list.
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Sec. 8.1.6. - Tree replacement.
8.1.6.1. Tree replacement chart. Chart 8.1.6.1, tree
replacement chart, below, shall be used to determine the
total number and size of trees that shall be planted as
replacement trees for all trees permitted to be removed.
The replacement trees are based on the diameter in inches
(DBH) of the trees to be removed. To determine the
required replacement trees, calculate the total sum in
inches of the diameters of all trees to be removed... .
Chart 8.1.6.1 then sets the " jt]otal number of replacement trees required,"
setting a number of trees based on the total diameter of trees to be removed.
Common sense dictates that, consistent with the analysis exposed above, the
number of replacement trees is a minimum requirement, and it would be absurd to
claim that planting more trees than the number stated in Section 8.1.6 would
constitute a "variance." Much in the same way, it is absurd to argue that the
loading berth requirement cannot be exceeded or that exceeding the requirement
constitutes a variance.
V. Conclusion
For these reasons, the Petition must be denied in its entirety. However,
should the Court not be convinced on this limited issue and find the Commission's
interpretation was clearly erroneous and that it therefore departed from the
essential requirements of the law, Wal-Mart respectfully requests the Court to
expressly deny the Petition on all other issues so as to avoid future re -argument of
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those matters, and remand the case to the Commission for entry of a resolution
consistent with the Court's opinion and interpretation of Section 627.2.15.
Respectfully submitted this 15th day of September, 2014.
LYDECKER 1 DIAZ
Counsel for Wal-Mart Stores East, LP
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
Tel.: (305) 416-3180
Fax: (305) 416-3190
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
E-mail: jcw@lydeckerdiaz.com
Mark A. Emanuele (FBN 541834)
E-mail: mae@lydeckerdiaz.com
Richard Lydecker (FBN 490555)
E-mail: rl@lydeckerdiaz.com
Manuel A. Diaz (FBN 310514)
E-mail: manny@lydeckerdiaz.com
CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of September, 2014, a true and correct
copy of this brief was filed with the Court and a copy was sent via e-mail to:
Paul C. Savage John A. Greco
E-mail: paul@savagelegal.com
Law Offices of Paul C. Savage, P.A.
100 Almeria Avenue, Suite 220
Coral Gables, Florida 33134
Attorney for Petitioners
E-mail: jagreco@miamigov.com
Victoria Mendez
E-mail: vmendez@miamigov.com
E-mail: law@miamigov.com
44 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
Attorneys for Respondent City of Miami
By: s/ Joan Carlos Wizel
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Joan Carlos Wizel (FBN 37903)
NOT FINAL UNTIL TIME EXPIRES
TO FILE RE -HEARING MOTION,
AND, IF FILED, DISPOSED OF.
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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:
T
w —
rn
-.4 'l
On Petition for Writ of Certiorari from a Resolution of the Respondent, City of Miami.
Paul C. Savage, for Petitioners.
Joan Carlos Wizel, 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
(Wa1-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.
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FACTUAL AND PROCEDURAL HISTORY'
On August 21, 2012, Wal-Mart submitted its application to the Department of Planning
and Zoning for a Class II Special Permit 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 permit, 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 Permit 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
I GOVERNING REGULATIONS
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 11 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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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, Mark 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.
STANDARD 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. City of Deerfield Beach v. Valiant, 419 So. 2d 624, 626 (Fla. 1982); Florida
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Power & Light Co. v. City of Dania Beach, 761 So. 2d 1089, 1092 (Fla. 2000); Broward Cnty. v.
G.B.V. Int'l, 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 fmdings 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 lI 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]l1 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 "[t}he 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.
3 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 determinations 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 "[considerations 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 "[f]ailure 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. llth 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
Permit 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 "[c]ounty'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 "[b]uilding 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
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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 of Miami 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
VICTORIA BRENNAN
CIRCUIT COURT JU
A VERDE
CIRCUIT COURT JUDGE
COPIES FURNISHED TO COUNSEL
OF RECORD AND TO ANY PARTY
NOT REPRESENTED BY COUNSEL
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