YTECH-180 UNITES MIAMI BCH INVESTMENTS

v.

CITY OF MIAMI BEACH

PER CURIAM.

THIS MATTER having come before the Court on Respondent's Motion for Rehearing (the "Motion") and this Court having read the Motion and Response in Opposition, examined the case file and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED:

Respondent's Motion is GRANTED. This case is DISMISSED.

On August 31, 2020, a panel of this Court¹ issued its opinion granting a petition for writ of certiorari and quashing an ordinance enacted by the City of Miami [*1] Beach. On review of Respondent's Motion, this Court WITHDRAWS its prior opinion, GRANTS rehearing and DISMISSES this case for lack of jurisdiction.² Respondent, City of Miami Beach (the "City" or "City Commission") contends this Court should rehear and reconsider its 2020 Opinion because this Court overlooked the "want of jurisdiction it creat[ed]." Specifically, Respondent contends this panel, as then-previously constituted, found the City's "process provided by the Code for the adoption of Historic Designation status is legislative in character," but, nevertheless, proceeded to make a determination on the merits. This Court agrees with Respondent that, if the process was "legislative in character," this Court would lack certiorari jurisdiction and could not reach the merits of Petitioner's brief.

Florida courts have long held that a city's legislative actions are subject to attack in circuit court through the filing of an original action seeking declaratory or injunctive relief, while a city's quasi-judicial actions are subject to certiorari review. See e.g. Minnaugh v. County Com'n of Broward County, 752 So. 2d 1263, 1265 (Fla. 4th DCA 2000) (legislative actions are "not subject to the certiorari review process but reviewable by a de novo action seeking declaratory or injunctive relief in circuit court"); see also Board of County Com'rs of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993).

[*2] In this case, the board action at issue is the City Commission's passage of a zoning ordinance that created an overlay, historic preservation zoning district over an area referred to as the Tatum Waterway in Miami Beach, Florida.

The Florida Supreme Court has, for decades, expressly stated "[z]oning is a legislative function which reposes ultimately in the governing authority of a municipality." Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 354 So. 2d 57, 59 (Fla. 1978); Snyder, 627 So. 2d at 474 ("Enactments of original zoning ordinances have always been considered legislative.").

Florida's District Courts of Appeal have similarly, and routinely, held that "creating zoning districts and rezoning land are legislative actions, and... trial courts are not permitted to sit as 'super zoning boards' and overturn a board's legislative efforts." Hirt v. Polk County Bd. of County Com'rs, 578 So. 2d 415, 417 (Fla. 2d DCA 1991); see also Harris v. Goff, 151 So. 2d 642, 645 (Fla. 1st DCA 1963) ("It has been uniformly held in this state that the function of a board or commission in the enactment of zoning ordinances is a purely legislative function."); Machado v. Musgrove, 519 So. 2d 629, 632 (Fla. 3d DCA 1987) (“It is well settled that a zoning action is an exercise of legislative power to which a reviewing court applies the deferential fairly debatable test."); Pasco County v. J. Dico, Inc., 343 So. 2d 83, 84 (Fla. 2d DCA 1977) ("The adoption of a zoning ordinance and zoning maps is a legislative act."). [*3] Florida courts have, however, wrestled with when, if ever, the passage of a zoning ordinance may constitute quasi-judicial action. In Hirt, for example, the Second District Court of Appeal explained that "[w]hether a board's zoning decision is considered legislative or quasi-judicial...turn[s] on whether the local governmental body is enacting an ordinance, in which case it is acting legislatively, or enforcing it, in which case it may be acting quasi-judicially." 578 So. 2d at 417 (emphasis added). It is only when "appellate courts have been called upon to classify governmental bodies' application of zoning ordinances, [that] their decisions have sometimes blur[red] the distinction between legislative and quasi-judicial actions." Id.

Two years following the Second District's Hirt opinion, the Florida Supreme Court clarified that although "[e]nactments of original zoning ordinances have always been considered legislative," the passage of a zoning ordinance that affects a limited number of persons, or property owners, could be functionally viewed as quasi-judicial action. Snyder, 627 So. 2d at 474. Specifically, the Florida Supreme Court adopted the lower court's analysis and held, Rezoning actions which have an impact on a limited number of persons or property owners, on identifiable parties and interests, and where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application, rather than policy setting, are in the nature of... quasi-judicial action. [*4] Id. (emphasis added). The Court's opinion in Snyder is applicable to all rezoning actions that do not concern the passage of, or amendment to, a comprehensive land use plan. See Martin County v. Yusem, 690 So. 2d 1288 (1997) (committing to its analysis in Snyder, except for cases that concern amendments to a comprehensive land use plan and finding that all actions concerning a comprehensive land use plan are legislative by nature, even when the amendment under consideration concerns a single property or owner).

Admittedly, the case law on this issue could be clearer. Often, it seems as if the concepts of a "comprehensive land use plan" and other zoning ordinances are being used interchangeably. Additionally, it is not always clear whether courts intend to use the word "comprehensive” in “comprehensive plan" as an adjective, or as one part of a compound noun. The Third District Court of Appeal has acknowledged the difference between a comprehensive land use plan and zoning action. See Machado, 519 So. 2d at 631-32. Specifically, the Third District Court of Appeal has explained, a A local comprehensive land use plan is a statutorily mandated legislative plan to control and direct the use and development of property within county or municipality.... The plan is likened to a constitution for all future development within the governmental boundary. Zoning, on the other hand, is the means by which the comprehensive plan is implemented, and involves the exercise of discretionary powers within limits imposed by the plan. [*5] Id. Notwithstanding this distinction, the Third District Court of Appeal, like every other Florida court, has clearly, and correctly, reiterated what Florida courts have always known that "[i]t is well-settled that a zoning action is an exercise of legislative power...." Id. (emphasis added).

The law in Florida, therefore, currently provides that a city's enactment of, or amendment to, a comprehensive land use plan is legislative in nature-irrespective of how many people the action affects. See generally Yusem; see also Snyder. If, rather than enact, or amend a comprehensive land use act, the city enacts a zoning ordinance with broad application to a large number of owners, then that act is also legislative in nature. See Snyder, 627 so. 2d at 474 ("it is evident that comprehensive rezonings affecting a large portion of the public are legislative in nature"); Board of County Com'rs of Sarasota County v. Karp, 662 So. 2d 718, 720 (Fla. 4th DCA 1995) ("Further, although the corridor plan directly affected a finite number of parcels, the number was fairly substantial."); J. Dico, Inc., 343 So. 2d at 84 ("The adoption of a zoning ordinance and zoning maps is a legislative act."); Gulf & Eastern Dev. Corp., 354 So. 2d at 59 ("zoning is a legislative function which reposes ultimately in the governing authority of a municipality"); Hirt, 578 So. 2d at 417 ("[w]hether a board's zoning decision is considered legislative or quasijudicial...turn[s] on whether the local governmental body is enacting an ordinance, in which case it is acting legislatively."). [*6] However, if the passage of a zoning ordinance does not concern a comprehensive land use plan and affects only a limited number of persons, that action may be quasi-judicial. See Snyder, 627 So. 2d at 474 ("Rezoning actions which have an impact on a limited number of persons or property owners...and where the decision can be functionally viewed as policy application, rather than policy setting, are in the nature of... quasi-judicial action"); see also Hirt, 578 So. 2d at 417 (it is when courts must classify "governmental bodies' application of zoning ordinances, [that] their decisions have sometimes blur[red] the distinction between legislative and quasi-judicial actions."); Section 28 Partnership, LTD v. Martin County, 642 So. 2d 609, 612 (Fla. 4th DCA 1994) ("a zoning decision is reviewable by certiorari, as the review of a quasi-judicial act rather than legislative act if: (a) it affects a limited number of property owners; (b) the outcome is contingent on facts presented at a hearing; and (c) it is viewed as the application, rather than the setting, of policy.") (emphasis added).

In this case, the record demonstrates the City Commission enacted a zoning ordinance that created an overlay zoning district, rezoning a large area with multiple properties as historic. Petitioner, in fact, has, in a letter that is part of the record below, stated that the zoning ordinance at issue could affect 8,000-10,000 residents.³ [*7] This fact alone demonstrates the City's action was legislative in nature. See Snyder, 627 So. 2d at 474 ("it is evident that comprehensive rezonings affecting a large portion of the public are legislative in nature."); Karp, 662 So. 2d 718, 720 (Fla. 4th DCA 1995) ("Further, although the corridor plan directly affected a finite number of parcels, the number was fairly substantial."); J. Dico, Inc., 343 So. 2d at 84 ("The adoption of a zoning ordinance and zoning maps is a legislative act.").

Even if this Court were inclined to conclude that the zoning ordinance at issue, which covers a large area and affects thousands of residents, was somehow "limited," this Court would still not find the City's zoning action to be of a quasijudicial nature for at least two reasons.

First, the Commission's decision to create an overlay historic district over the Tatum Waterway was not "contingent on a fact or facts arrived at from distinct alternatives presented at a hearing." Snyder, 627 So. 2d at 474. Second, the Commission's decision to designate the Tatum Waterway as historic cannot "be functionally viewed as policy application." Id. This is not a case where the City Commission must decide whether an applicant for a variance or permit should be afforded relief. In this case, the City Commission, as Petitioner concedes, chose to create a historic zoning overlay district over the Tatum Waterway as part of what it called its "Master Plan" for the City. In formulating the Master Plan, the City sought the input of experts and residents. Policy decisions and compromises were made. [*8] The designation of the Tatum Waterway as historic was one such policy decision and constituted an exercise of the City's long-recognized legislative power to enact zoning ordinances and create zoning maps. See Machado, 519 So. 2d at 631-32 ("Zoning... involves the exercise of discretionary powers.").

Petitioner, nevertheless, contends this Court should treat the City Commission's passage of the zoning ordinance as if it were a quasi-judicial act. Petitioner argues, primarily, that (1) the City Code provides for quasi-judicial hearings as part of the historic designation process; and (2) the City Commission's decision was contingent on a finding that the proposed designated area met certain historic preservation and “sea level rise" criteria. Petitioner is incorrect.

First, the City Code does not require the City Commission to hold a quasijudicial hearing. While Petitioner is correct that the City Code provides for quasijudicial hearings on proposed historic designations, the quasi-judicial proceedings are conducted by the historic preservation board. See Miami Beach, Fla., Code § 118-591(f) ("A quasi-judicial public hearing on a proposed historic preservation designation shall be conducted by the historic preservation board...")(emphasis added).

Second, while the City does require the historic preservation board to consider certain factors and/or apply some criteria, the City Code is silent as to any facts that must be found, or criteria that must be applied, by the City Commission when [*9] determining whether it wishes to accept, or reject, the board's recommendation. See Miami Beach, FL., Code § 118.592. Instead, the City Code merely states the City Commission must simply vote by a five-sevenths vote to designate a property as historic. See Miami Beach, FL., Code § 118.593(c); see also e.g. Gulf & Eastern, 354 So. 2d at 60 (finding proceedings before a zoning board "result in input which is material and substantial" but noting "a record in the strict sense is not made at the zoning board hearing by which the City Commission is bound"); Machado, 519 So. 2d at 631-32 ("Zoning... involves the exercise of discretionary powers.").⁴ This Court is equally unpersuaded by Petitioner's other arguments, including its characterization of the two public readings before the City Commission as quasijudicial proceedings. See Karp, 662 So. 2d at 720 ("Respondent's argument that the 'character of the hearing' referred to in Snyder refers primarily to the due process aspects of the hearing is not well taken."). It is not uncommon for ordinances to be read and for residents to be heard before a commission votes on the passage of a new law. Indeed, nearly fifty years ago, the Florida Supreme Court stated, Every meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality... Government, [*10] more so now than ever before, should be responsive to the wishes of the public. These wishes could never be known in nonpublic meetings, and the governmental agencies would be deprived of the benefit of suggestions and ideas which may be advanced by the knowledgeable public. Also, such open meetings instill confidence in government. The taxpayer deserves an opportunity to express his views and have them considered in the decision-making process.

Town of Palm Beach v. Gradison, 296 So. 2d 473, 475 (Fla. 1974); see also Miami Beach, FL. § 2-14(a) (affording its residents "timely opportunities for input and procedural fairness in hearings for any proposed policy, ordinance, project or other matter that impacts residents' quality of life."). The public reading of an ordinance does not, therefore, standing alone, turn a legislative act into a quasi-judicial proceeding.

Similarly, the fact that the proceeding before the historic preservation board was quasi-judicial in nature does not convert the City Commission's inherent legislative authority to rezone large portions of the city into a quasi-judicial act. On the contrary, there are good reasons to allow for quasi-judicial proceedings before a historic preservation board. See Gulf & Eastern, 354 So. 2d 57. For example, in Gulf & Eastern, the Florida Supreme Court reiterated what has become abundantly clear-"[z]oning is a legislative function which reposes ultimately in the governing authority of a municipality." Id. at 59. Still, the Court noted that it has become common for some, or all, of the zoning process to be delegated to an independent [*11] board. Id. at 59. These delegations allow a board or agency to recommend a more restrictive use of property and "effectively [endow] the [board or agency] with the power to alter the use of a particular parcel of land on an interim basis" "until the recommendation has been acted on by the [c]ity [c]ommission." Id. The Florida Supreme Court did not then, and has not since, held that the passage of a zoning ordinance necessarily constitutes a quasi-judicial act when it follows a quasi-judicial proceeding before a zoning, planning, or historic preservation board. Instead, Florida courts have continued to maintain that the passage of a zoning ordinance is a legislative act, unless the action taken affects a limited number of persons. See Snyder, 627 So. at 474 ("it is evident that comprehensive rezonings affecting a large portion of the public are legislative in nature").

In summary, the City Commission's passage of the zoning ordinance at issue affected a large number of persons and property, was not contingent on the finding of any fact, and constituted policy formulation as opposed to policy application. The City Commission's action therefore was legislative in nature. This Court lacks certiorari jurisdiction over the legislative actions of the City Commission.

5 The cases upon which Petitioner relies concern zoning actions of limited scope, "spot-zoning," and/or are otherwise distinguishable and inapposite. [*12] Accordingly, this Court withdraws its Opinion dated August 31, 2020, withdraws its Order Denying Respondent's Motion to Dismiss, and DISMISSES the Petition for Certiorari for lack of jurisdiction.

TRAWICK, WALSH AND R. ARECES, JJ., CONCUR. [*13] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]