THE LITTLE RIVER CLUB

v.

CITY OF MIAMI

p b iero,J. Rothenberg,J. Eig, J. 2012 On appeal from a Resolution adopted by the City of Miami City Commission a ' ' ' ' B Administrative Enforcement Notices from the City ofMiami Code Enforcement I i

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT,

IN AND FOR, MIAMI DADE

COUNTY, FLORIDA

APPELLATE CASE NOS.: i 1-322 AP & 11-406AP LOWER TRIBUNAL CASES: I 1 l~000247xc; CEZOI 1010108, (113201 1009668 ‘ ,_ I _,_ =-%'§i'I£{"‘i=§?:;i .. ?°=§,H<t zunrzitz Jttviflu 80;!anJ 50°69-I9Ii1IM Ilmdfifli ca st. \- P 1- I ~ J; 0 as Ben Fernandez, for Petitioner. Julie O. Bru, City Attorney, John A. Greeo, Assistant City Attorney, City of Miami Office of the City Attorney, for Respondent. Before CABALLERO, ROTHENBERG, and BIG, JJ.

CABALLERO, J .

ourt arise from two quasi-judicial decisions of the City of The cases before this Appellate C Miami. The first is a Resolution adopted by the City of Miami City Commission rejecting an application for an Exception filed by The Little River Club, Inc. to continue using a portion of its property as a parking lot. The second is from the City of Miami Code Enforcement Board, which entered two Final Administrative Enforcement Notices upholding code violation citations issu ' The cases, 1 1-322AP and i l»406AP, were consolidated for purposes of orai argument. This opinion will address both cases. l [*2] to The Little River Club, Inc. for ‘continuing to use its property as a parking lot afier the City Commission’s decision. Petitioner Little River Club, Inc. is a non-profit organization that has owned the subject property in Miami, Florida since approximately 1990. Petitioner’s property consists of a commercial lot at 753 Northeast 79th Street and two residential lots at 770 and 776 Northeast 80th Street. The residential lots contain a parking lot that services the commercial property (collectively, the “Parking Lot”). in 1965, the previous owners of the subject property applied for and received a conditional use permit from the City of Miami to develop the Parking Lot on the residential lots pursuant to Ordinance No. 6871, the zoning ordinance in effect at the time. In 2009, the City of Miami adopted a new zoning ordinance, the Miami 21 Code. Then, in late 2010 or early 2011, the City of Miami infonned Petitioner that the City considered the Parking Lot to have been previously approved asa transitional use and that, pursuant to Article 7.2.6 of the Miami 21 Code; Petitioner needed approval from the City Commission for an Exception to continue using its propeity as a parking lot. - Though it disagreed with the City’s classification of the Parking Lot as a transitional use, Petitioner applied for an Exception pursuant to Article 7 of the Miami 21 Code. The City Commission held a public hearing on April 28, 2010 to consider the application. After conducting the hearing, the City Commission denied Petitioner’s application for an Exception through an adopted Resolution. Thereafter, the City of Miami issued two citation notices to Petitioner, asserting it was in violation of the terms of the Miami 21 Code. Petitioner challenged the citations, and on June 8, 2011, the City of Miami Code Enforcement Board held a public hearing, wherein the Board found Petitioner guilty. These appeals followed. Standard ofReview First-tier certiorari review of quasi-judicial actions consists of a review of the record to determine: (1) whether procedural due process was accorded; (2) whether the “essential requirements of the law” were observed’; and (3) whether the administrative findings and judgment are supported by “competent substantial evidence.” City of Deeiffield Beach v. 2Applying the correct law is synonymous with observing the essential requirements of law. Dusseau v. Metrg,_1)ade City Bd. of C’ty Comin'rs, 794 So. 2d 12'/'0, i274 (Fla. 2001); Haines Cit Comm’t Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. I995). I [*3] \ Vaillant, 419 So. 2d 624, 626 (Fla. 1982); see also Dusseau v. Metro.,Dade C’ty Bd. Of C’ty Comm’rs, 794 So. 2d 1270, 1274 (Fla. 2001); Haines City, Cmg/. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). On first-tier certiorari review, the circuit court should not re-weigh the evidence or substitute its judgment for that of the local government authority. M, 419 So. 2d at 626; Ed._,QfCgunty Com’rs of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993); , 794 So. 2d at 1275-76; Elgrigdallgower & Light Co. v. City of Dania, 761 So. 2d 1089, 1093 (Fla. 2000); DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). With this standard of review in mind, the Court will consider Petitioner’s arguments regarding the decisions of the City of Miami City Commission and Code Enforcement Board. Essential Requirements of Law Petitioner puts forth two arguments regarding the essential requirements of law: (1) that the City of Miami departed from the essential requirements of law by classifying the Parking Lot as a transitional use; and (2) that the City of Miami departed from the essential requirements of law by failing to consider whether Petitioner had vested rights regarding the Parking Lot.

I.

Classification of Parking Lot as a Transitional Use Petitioner contends that the City of Miami City Commission and Code Enforcement Board both departed from the essential requirements of law by classifying the Parking Lot as a transitional use. The Court will address these arguments separately. a. City of Miami City Commission The record indicates that, in late 20i0 or early 2011, Petitioner Little River Club, Inc. was going through the process of renewing its Certificate of Use. During this process, Respondent City of Miami infonned Petitioner that the City classified the Parking Lot as being previously approved as a transitional use, and that Petitioner would need to seek an Exception pursuant to Article 7.2.6 of the Miami 21 Code to continue using the property as a parking lot. g Miami 21 Code, Article 7.2.6 (May 13, 2010). Petitioner submitted its application for an Exception to the City of Miami Planning Department on January 3, 2011. The City of Miami Planning Department reviewed Petitioner‘s application and recommended to the City Commission that it be denied. The City Commission then held a public hearing to consider Petitioner’s application on April 28, 2011. After hearing testimony from Petitioner, City representatives, and residents of the surrounding neighborhood, the City Commission denied Petitioner’s request for an [*4] Exception. This appeal, case number ll-322 AP, ensued following the City Commission’s decision. ‘ Petitioner asserts that the City of Miami City Commission departed from the essential requirements of law when it classified the Parking Lot as a transitional use. However, at its core, this appeal deals with the City Commission’s decision to deny an Exception, and this Court is cognizant that the City’s classification of the Parking Lot as a transitional use is a separate and distinct decision from the City’s decision to deny the Exception. Furthermore, the City’s decision to classify the Parking Lot as a transitional use was appealabie through a provision in the Miami 21 Code not utilized by Petitioner. Article 7.1.2.3 of the Miami 21 Code provides a process to challenge the City’s zoning interpretations, such as the City’s interpretation of Article 7.2.6 to classify the Parking Lot as a transitional use. $_ee Miami 21 Code, Article 7.1.2.3 (May 13, 2010). This process goes through the Zoning Administrator, with appeals to the Planning, Zoning and Appeals Board, the City Commission, and finally to this Court. la; Despite disagreeing with the City’s classification of the Parking Lot as a transitional use, Petitioner chose not to challengethe classification pursuant to Article 7.1.2.3, and instead applied for an Exception pursuant to Article 7.2.6 of the Miami 21 Code. Only now on appeal does Petitioner challenge the City’s determination that the Parking Lot was approved as a transitional use. “As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.” Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005). Therefore, while Pctitioner’s argument that the City incorrectly classified the Parking Lot as a transitional use may have merit, this Court will not consider the issue on this appeal. The local government decision being appealed is the City’s decision to deny the Exception, and not the City’s decision to classify the Parking Lot as a transitional use. Therefore, the focus ofthis appellate review is whether the City of Miami departed from the essential requirements of law in denying the Exception, and not whether the City departed from the essential requirements of law by classifying the Parking Lot as a transitional use. With the appropriate scope of review in mind, there is nothing in the record to indicate the City Commission departed from the essential requirements of law in making its decision to deny Petitioner’s application for an Exception. In fact, Petitioner does not argue that Respondent departed from the essential requirements of law with respect to the provisions in the Miami 21 Code for considering Exceptions. Accordingly, this Appellate Court finds that the City of Miami City Commission [*5] complied with the essential requirements of law in considering, and ultimately denying, Petitioner's request for an Exception for the Parking Lot. b. City of Miami Code Enforcement Board Subsequent to the City Commission’s Resolution denying the Exception, the City of Miami issued two citation notices to Petitioner, asserting the Parking Lot was in violation of the Miami 2l Code. Petitioner challenged the citations, and the City of Miami Code Enforcement Board held a public hearing on June 8, 2011. At the hearing, Petttioner’s counsel maintained that the City of Miami and City Commission erred in its interpretation and application of Article 7.2.6 and asserted that, as a matter of law, Petitioner could not have violated the Miami 21 Code. The Code Enforcement Board submitted its findings through two Final Administrative Enforcement Notices on June 13, 2011, wherein the Board found Petitioner guilty of the alleged code violations for the illegal nonconforming parking lot located at 770 and 776 Northeast 80th Street. This appeal, case number 11-406AP, ensued. On appeal, Petitioner asserts that that the City of Miami Code Enforcement Board departed from the essential requirements of law through its interpretation and application ofArticle 7.2.6 of the Miami 21 Code to conclude that the Parking Lot was an illegal nonconforming use. Both parties contend that the Code Enforcement Board was required to make two determinations in its proceedings: (l) whether Petitioner's property was being used as a parking lot; and (2) whether the use of Petitioner‘s property as a parking lot was permitted under the Miami 21 Code. The first question was not contested at the hearing, as the property was obviously being used as a parking lot. As to the second question, the parties strongly disagree on the Code Enforcement Board’s scope of review. Petitioner argues that the Code Enforcement Board’s scope of review necessarily requires the Board to determine whether the City properly interpreted and applied Article 7.2.6 to classify the Parking Lot as a transitional use. Petitioner further contends that the Code Enforcement Board erred by misinterpreting and misapplying Article 7.2.6 to sustain the code violation citations. Respondent asserts that the City’s interpretation and application of Article 7.2.6 was not properly before the Code Enforcement Board, and that the Board does not have the authority to overturn the City’s interpretation or the City Commission’s decision to deny the Exception. The Court agrees with Respondent that the Code Enforcement Board’s review of the code violation citations, and determination whether the use of the property as a parking lot was l [*6] permitted, did not include reviewing the City’s interpretation and application of Article 7.2.6 of the Miami 21 Code. The record indicates that the Code Enforcement Board reviewed Article⁴ of the Miami 2l Code to determine whether public parking lots on residential property were permitted. Coupled with the knowledge that the City Commission denied Petitioner’s request for an Exception, the Code Enforcement Board determined that the Parking Lot was not allowed under the Miami 2| Code. Despite Petitioner’s argument to the contrary, there is nothing to indicate that the City of Miami Code Enforcement Board was required, or even had the authority, to review the City’s previous decision to classify the Parking Lot as a transitional use. Accordingly, this Appellate Court finds that the City of Miami Code Enforcement Board complied with the essential requirements oflaw in its proceedings.

II.

Vested Rights Petitioner also contends the City of Miami City Commission departed from the essential requirements of law by failing to consider any vested rights it may have had under principles of equitable estoppel, as required by Article 7. l .3.5(d)(3) of the Miami 21 Code. Petitioner argues that, while its representative raised the issue of vested rights during the hearing, there is no indication the City Commission performed this necessary review. Petitioner concludes that, since the City Commission failed to apply this criterion when reviewing Petitioner’s application, it failed to comply with the essential requirements of law. However, as Respondent indicates, the language ofArticle 7.1 .3.5(d)(3) states that, in special permit cases, “the City shall recognize any rights to develop that may be vested under legal principles of equitable estoppel." $5 Miami 2] Code, Article 7.l.3.5(d)(3) (May 13, 2010). Respondent asserts that this provision is limited to fights to develop, and does not apply to potential vested rights to continue an existing use. Generally, when considering the interpretation of an ordinance on first-tier certiorari review of an administrative action, the reviewing court will give judicial deference to the administrative body interpreting the ordinance so long as it is reasonable. See e.g, R0llis_on,v,.,City Of Key W., 875 So. 2d 659 (Fla. 3d DCA 2004); Winemiller v. Feddish, 568 So. 2d 483, 485 (Fla. 4th DCA 1990). Such deference is not absolute, however, and when an agency’s interpretation of an ordinance is unreasonable or ciearly erroneous, it cannot stand. Legal Envtl. Assistance Found, Inc. v. Board of County Comm'rs of__Brevard County, 642 So. 2d 1081, i083-84 (Fla.l994). [*7] With this in mind, Article 7.l.3.5(d)(3) of the Miami 21 Code does not expressly discuss recognizing vested rights for the continued use of existing development. I_d. As such, this Court cannot say that the City’s interpretation is unreasonable. Therefore, the Court finds that the City Commission did not depart from the essential requirements of law by failing to consider any vested rights held by Petitioner under Article 7. l .3.5(d)(3) of the Miami 21 Code. Procedural Due Process Petitioner claims that the City of Miami City Commission denied it procedural due process during the April 28, 2011 public hearing to consider its application for an Exception. After the public hearing was closed, Commissioner Samoff made remarks and referenced an aerial photograph. Petitioner’s representative attempted to rebut Commissioner Sarnoff’s remarks, but the City Commission denied the representative an opportunity to comment. Petitioner asserts that the City Commission denied it procedural due process by denying its representative the opportunity to rebut evidence offered by Commissioner Sarnoff following the close of the public hearing. To support its claim, Petitioner asserts that Power U Center for Social Change, et..al..v_. City of Miami, is an analogous case. figg l⁴ Weekly Supp. 814a (Fla. llth Cir. Ct. 2007). Petitioner highlights the case’s discussion where the respondent in a zoning hearing introduced an environmental assessment into the record during rebuttal and the City Commission did not provide the petitioner an opportunity to respond to the rebuttal evidence. lg, The court categorized the environmental assessment as “material” and “crucial” evidence that was being introduced for the first time on rebuttal, and determined that the City denied procedural due process by limiting the ability of the petitioner to respond to this evidence. Q (citing Hadley v. Department of Admin., 411 So. 2d I84, 187 (Fla. 1982); Kupke v. Orange County, 838 So. 2d 598, 599 (Fla. 5th DCA 2003)). While Petitioner attempts to liken the instant case to the Power U Center discussion regarding the environmental assessment, this Court finds the instant case to be more akin to another portion of Power U Center addressing a City Commissioner’s dialogue after the public hearing. §§§ 14 Fla. L. Weekly Supp. 814a. During the zoning hearing discussed in Power U Qiter, a City Commissioner made remarks after the public hearing was closed which referenced evidence similar and cumulative to evidence previously entered during the public hearing. id Though the petitioner argued that their inability to respond to the City Commissioner’s remarks [*8] denied them procedural due process, the Eleventh Judicial Circuit Appellate Court found that the City Commission’s reference to cumulative evidence did not prejudice the petitioner, and the petitioner-’s inability to respond did not constitute a denial of procedural due process. Q The general facts of the instant case are comparable to this scenario from Power U Center. Q Commissioner Samoff made remarks alter the public hearing was closed which referenced an aerial photograph similar and cumulative to evidence previously entered during the public hearing. Consistent with the ruling in Power U Center, this Court also finds that the City Commissioner’s reference to cumulative evidence, and Petitioner’s inability to respond to that reference, did not prejudice Petitioner. Q Therefore, this Court concludes that the City of Miami City Commission did not deny Petitioner procedural due process during the April 28, 2011 public hearing. 3 Competent Substantial Evidence Petitioner argues that both the City Commission’s and Code Enforcement Board’s decisions were not based on competent substantial evidence. However, Petitioner’s only assertion on this issue is that both the City Commission and Code Enforcement Board relied on flawed recommendations from City officials that the Parking Lot was previously approved as a transitional use. In actuality, this argument once again relates back to Petitioner’s contention that the City’s zoning interpretation and classification of the Parking Lot as a transitional use departed from the essential requirements of law. Furthermore, Petitioner’s cited authority in support of its argument discusses the interpretation of statutes and ordinances, and does not support Petitioner’s contention that a flawed interpretation relates to competent substantial evidence.‘ Regarding the City’s Commission’s decision to deny the Exception, the record reflects that there was competent substantial evidence to support the City Commission's denial of the Exception, including testimony from City officials and residents of the surrounding neighborhood. Similarly, regarding the Code Enforcement Board’s decision to uphold the code violation citations, the record indicates that the Board was presented with competent substantial 3 Petitioner did not assert that the City of Miami Code Enforcement Board denied it procedural due process. See §l._tl_l,lV8I1 v. Fla. Dep’t of Envtl. Prot, 890 So. 2d 417, 420 (Fla. lst DCA 20004). [*9] evidence that Petitioner was using its residentially-zoned property as a parking lot. Accordingly, this Appellate Court finds that both decisions were supported by competent substantial evidence. THEREFORE, the Little River Club, Inc.’s Petitions for Writ of Certiorari are hereby DENIED, and the decisions of the City of Miami City Commission and City of Miami Code Enforcement Board are hereby AFFIRMED. ROTHENBERG and EIG, JJ., concur. . MAR

A B. CABALLERO

CIRCUIT COURT JUDGE

Date: M O

HON. ARTHUR L. ROTHENBER

CIRCUIT COURT JUDGE

__ ARTHUR L. FIUTI-""'\lBEFlG Date, 4-'1 ‘I / 2-

OIHCUITCOUHIJUDGE

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HON. SPENCER BIG

CIRCUIT COURT JUDGE

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