CASCAR, LLC,

v.

CITY OF CORAL GABLES, ETC., ET AL.,

Third District Court of Appeal State of Florida

Opinion filed June 26, 2019. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D18-1051 Lower Tribunal No. 13-25997 ________________

Cascar, LLC, Appellant,

vs.

City of Coral Gables, etc., et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Hall, Lamb, Hall & Leto, P.A., and Andrew C. Hall, Matthew P. Leto, and Roarke Maxwell, for appellant.

John C. Lukacs, P.A., and John C. Lukacs, Sr.; Weiss Serota Helfman Cole & Bierman, P.L., and Laura K. Wendell and Susan L. Trevarthen, for appellees.

Before LOGUE, SCALES, and HENDON, JJ.

LOGUE, J.

6.

In designating the property as a local historic landmark, the Historic Preservation Board and the City Commission applied the criteria for designation of historic landmarks which appear in the Coral Gables Zoning Code at Article III, Section 3-1103.

7.

The criteria that appear in Section 3-1103 were in effect in the City since the City enacted Ordinance No. 2508 on August 28, 1984. . . . .

4

9.

In denying Cascar’s application [for a demolition permit], the Historic Preservation Board and the City Commission considered the record and applied the criteria set forth in the Coral Gables Zoning Code, Article III, Section 3-1107(D). . . . These criteria have been in effect since 1984.

Cascar did not present contradictory evidence. After a hearing, the trial court granted the City’s motion for summary judgment, finding that because Ordinance No. 2508 was enacted in 1984, Cascar did not have a viable cause of action under section 70.001(12). This appeal followed. Standard of Review This Court reviews a trial court’s ruling on a motion for summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. Summary judgment “is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 2006). Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve all such factual disputes and inferences favorably to the non-moving party, the non-

§ 70.001(12), Fla. Stat. The question in this case is whether the grandfather provision bars claims when the ordinance at issue was enacted prior to May 11, 1995, but the application of the ordinance took place after that date. In Bair v. City of Clearwater, 196 So. 3d 577, 581 (Fla. 2d DCA 2016), the Second District considered this issue and held that the grandfather provision does bar claims in this circumstance: The reference to the enactment of an ordinance or the adoption or formal notice for adoption of an ordinance on or before May 11, 1995, makes it clear that the legislature intended to bar claims based on the application of grandfathered legislation, i.e., any law, rule, regulation, or ordinance that was in effect or formally noticed to be in effect on or before the specified date. If the legislature intended merely to preclude claims based on a governmental entity’s application of an ordinance that occurred prior to May 11, 1995, it could have specified that no cause of action existed for any application of a law, rule, regulation, or ordinance that occurred prior to that

Bair, 196 So. 3d at 583 (original emphasis omitted; emphases added). Because Bair properly interprets the plain and obvious meaning of the statute, we are bound to follow it: “when the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). Applying Bair to this case, the undisputed evidence reveals that Ordinance No. 2508 was enacted on August 28, 1984 – more than ten years before the statutory cut-off date of May 11, 1995. When the City designated the residence a historic landmark in 2012, it merely applied the grandfathered-in Ordinance as codified in Section 3-1103. For the same reason, when the City denied Cascar’s request for a demolition permit, it merely applied the grandfathered-in Ordinance as codified in Section 3-1107(D). Under Bair, therefore, the application of the Ordinance to the subject property does not give rise to a cause of action under the Harris Act. Cascar argues that a different result is mandated by the cases of Wendler v. City of St. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013), Citrus County v. Halls River Development, Inc.,⁸ So. 3d 413 (Fla. 5th DCA 2009), and Brevard County v.

1. A law or regulation is first applied upon

enactment and notice as provided for in this subparagraph if the impact of the law or regulation on the real property is clear and unequivocal in its terms and notice is provided by mail to the affected property owner or registered agent at the address referenced in the jurisdiction’s most current ad valorem tax records. . . .

2. Otherwise, the law or regulation is first applied

to the property when there is a formal denial of a written request for development or variance.

§ 70.001(11), Fla. Stat.