COCOPLUM CIVIC ASSOCIATION, INC

v.

CITY OF CORAL GABLES

On Petition for Writ of Certiorari

Charles C. Kline, Esquire, Jason Ryan Domark, Esquire, Reid Kline, Esquire, Cozen O'Connor for Petitioner, Cocoplum Civic Association, Inc. Frances Guasch de la Guardia, Esquire, Anna Marie Gamez, Esquire, Holland & Knight and Miriam Soler Ramos, City Attorney, City of Coral Gables for Respondent, City of Coral Gables.

Phillip M. Hudson, III, Esquire, Hilda Piloto, Esquire, Miguel Diaz de la Portilla, Esquire, Saul Ewing Arnstein & Lehr LLP for Respondent, Cocoplum Homeowners Association, Inc. Page¹ of 25 [*2] Before: TRAWICK, WALSH and SANTOVENIA, JJ.

PER CURIAM

This matter is before the court on a Petition for Writ of Certiorari (the "Petition") timely¹ filed by the Cocoplum Civic Association, Inc. (the "Association") on April¹¹, 2019 requesting that City of Coral Gables Resolutions Nos. 2019-832 and 2019-94 be rescinded.3. The Petition seeks to review and reverse certain decisions which are ultra vires and which also amount to the taking of private property without due process or just compensation in violation of the Florida and U.S. Constitutions.

HISTORY AND PROCEDURAL BACKGROUND

The original Cocoplum development ("Cocoplum") and the Islands of Cocoplum are two residential developments located in the City of Coral Gables 2 Resolution No. 2019-83 authorized new signage at the Cartagena Circle Entrance (the "Main Entrance") to the Cocoplum Tract. It also re-approved the encroachment granted in Resolution 2013-06, which authorized encroachments into the public right-of-way within the Cocoplum subdivision for the purpose of replacing existing wooden signs with stone signs at the intersection of Cocoplum Road and Los Pinos Boulevard at the Prado Boulevard entrance (the "Bridge Entrance"). The Resolution approved in the alternative encroachment of a monument sign, wing walls and pavers at the base of the Cocoplum Road Bridge. The design was subject to approval as part of the City of Coral Gables Board of Architects ("BOA") appeals process.

Page 2 of 25 [*3] ("City"). The Islands of Cocoplum is located southeast of and separated from Cocoplum by a waterway known as Lago Monaco. To access the Islands of Cocoplum, homeowners must drive through the Main Entrance, go east on Cocoplum Road and then pass over one of the waterways separating Cocoplum from the Islands of Cocoplum. Two associations represent homeowner interests: Cocoplum homeowners are represented by the Association; homeowners in the Islands of Cocoplum are represented by the Cocoplum Homeowner's Association, Inc. ("HOA").⁴ The issues presented in this case concern the divergence of those interests.

Crew, Pope & Carter Corporation, the original developer of Cocoplum ("Developer"), owned 480 acres of land located in the City known as the Cocoplum Tract. After the Developer completed the Cocoplum development in 1975, the Developer entered into an agreement with the City on October 19, 1976 to erect an information booth and to build entrance walls at the Main Entrance to the Cocoplum Tract on land within the public right-of-way. This agreement provided for a sign reading "Cocoplum Information" to be located at the information booth and two signs reading “COCOPLUM", one to be located on each entrance wall. It further 5 In 1926, prior to the planning and development of Cocoplum, the Biscayne Corporation dedicated a right-of-way easement in the public roadways to the City. A 1952 plat dedicated the land at the Main Entrance to the City.

Page³ of 25 [*4] provided for the operation of the information booth by the Developer for five years. At the termination of the five years, the Developer with the consent of the City was allowed to turn over control of the information booth and walls to an association of homeowners.

In 1980, the Arvida Development Company acquired development rights for the undeveloped portions of Cocoplum. The land acquired by Arvida is the area now known as the Islands of Cocoplum.

Over the years, the HOA has memorialized maintenance agreements with the City.⁶ In 2002, the HOA applied to the City for permission to encroach into the right-of-way in order to erect informational signs at four locations in Cocoplum, including at the Bridge Entrance. This request was granted and memorialized in Resolution 30389 A.⁷ The HOA executed a Declaration of Restrictive Covenants regarding same in May, 2003. For ten years, there were no objections to the Bridge Entrance features. On January 22, 2013, the City Commission approved Resolution No. 2013-06, which in part authorized encroachments into the public right-of-way for the purpose of replacing the original wooden signs at the Bridge Entrance with Page⁴ of 25 [*5] stone signs.

In April of 2018, the HOA applied to the City for the modification of the architectural design and signage at the Bridge Entrance. The Association objected to the architectural design and the BOA rejected the HOA's request. On January¹⁰, 2019, the HOA presented a revised design request to the BOA adding faux gates at the Bridge Entrance and Main Entrance and opting to retain usage of "COCOPLUM" on signage, except for the southernmost entrance which would feature "ISLANDS OF COCOPLUM" with a crest above the words. The BOA rejected both requests. On January 18, 2019, the HOA appealed the BOA's denial of both requests.

On February⁶, 2019, a Conflict Resolution Meeting was convened.⁸ The HOA was a participant while the Association was not.⁹ On February¹¹, 2019, the HOA and City entered into a Settlement Agreement regarding the BOA denial concerning the Main Entrance features, which approved certain updated attached plans "subject to the City Commission approving the required encroachment agreement(s)." The Settlement Agreement was approved by a BOA special master Page 5 of 25 [*6] on February¹¹, 2019. On February¹⁴, 2019, the Association notified the City Attorney of its appeal of the Settlement Agreement and other actions.¹⁰ On March¹², 2019, pending a hearing before the City Commission on the appeal of the Settlement Agreement regarding the BOA denial, the City held a hearing on the proposed encroachments located at the Bridge Entrance and new signage at the Main Entrances. Following that hearing, the City issued Resolution 2019-83 (the "Encroachment Resolution"), which approved a new sign located at the south side of the Main Entrance, consisting of two stone monuments, one reading "COCOPLUM" and the other reading "ISLANDS OF COCOPLUM." Resolution 2019-83 also re-approved the existing gate post encroachment at the Bridge Entrance as originally approved in Resolution 2013-06, with an approved alternative design of a monument sign with wing walls and pavers at a different location from the current Bridge Entrance, provided the existing gate posts were removed.

On March¹⁴, 2019, the HOA withdrew its request to improve the features at the Bridge Entrance, leaving pending only the hearing before the City Commission on the appeal of the Settlement Agreement regarding the BOA denial of the HOA's request for two stone monuments with the wording "COCOPLUM" on one and Page⁶ of 25 [*7] "ISLANDS OF COCOPLUM" on the other at the Main Entrance.

On March 21, 2019, the City Attorney provided a legal opinion addressing the BOA appeal and recommended that the City Commission hear the appeal as part of a quasi-judicial de novo hearing. The City Attorney's opinion acknowledged that the Association did not have the opportunity to participate in a quasi-judicial de novo public hearing before the BOA special master and that the City Commission should make the hearing a quasi-judicial one. Notwithstanding, the City Attorney opined that the scope of the BOA appeal be limited to design review and aesthetic considerations only.

On March 22, 2019, the Association submitted a request for the City to reconsider Resolution 2019-83. On March 25, 2019, a second Conflict Resolution Meeting was held with the Association, the HOA and the City in attendance. No resolution was reached.

On March 26, 2019, the City held a quasi-judicial hearing to address the Association's appeal of the Settlement Agreement. As directed by the City Attorney, the scope of that hearing was limited to the design and the aesthetic appeal of the new signs. The City did not allow discussion regarding the legality of the encroachments. Resolution 2019-94 ("BOA Settlement Resolution") was passed and adopted at this hearing. It upheld the design agreed to in the Settlement Agreement for the BOA appeal and ratified the February¹², 2019 Special Master's Page⁷ of 25 [*8] decision regarding the entrance features at the Main Entrance.

STANDARD OF REVIEW

City Code Section 3-607A provides that:

An action to review any decision of the City Commission under these regulations may be taken by any person or persons, jointly or separately, aggrieved by such decision by presenting to the Circuit Court a petition for issuance of a Writ of Certiorari, duly certified, setting forth that such decision is illegal, in whole or in part, certifying the grounds of the illegality, provided same is done in the manner and within the time provided by Florida Rules of Appellate Procedure.

Certiorari review by the circuit court requires a determination as to whether: (1) procedural due process was accorded, (2) the essential requirements of the law were observed; and (3) the administrative findings and judgment were supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

The Respondents argue that the Encroachment Resolution is not reviewable by certiorari because it involves legislative action and that this court can only review the BOA Settlement Resolution on the Association's Petition. See Hirt v. Polk County Bd. of County Com'rs, 578 So. 2d 415, 416 (Fla. 2d DCA 1991) ("Certiorari is the proper method to review the quasi-judicial actions of a [county board], whereas injunctive and declaratory suits are the proper way to attack a Board's legislative actions.").

Page⁸ of 25 [*9] The City (citing only to Resolution 2019-83) and HOA simply allege in their response briefs that the March¹², 2019 hearing was legislative, with no analysis as to how the City's decision, which permitted, inter alia, a new sign located at the Main Entrance and re-approved the existing gate post encroachment at the Bridge Entrance, is legislative instead of quasi-judicial. As set forth by the Florida Supreme Court in Board of Cnty. Com'rs of Brevard Cnty. v. Snyder, 627 So. 2d 469, 474 (Fla. 1993):

It is the character of the hearing that determines whether or not board action is legislative or quasi-judicial. Coral Reef Nurseries, Inc. v. Babcock Co., 410 So. 2d 648 (Fla. 3d DCA 1982). Generally speaking, legislative action results in the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy." (citation omitted).... But even so, quasi-legislative and quasi-executive orders, after they have already been entered, may have a quasi-judicial attribute if capable of being arrived at and provided by law to be declared by the administrative agency only after express statutory notice, hearing and consideration of evidence to be adduced as a basis for the making thereof.

(citing West Flagler Amusement Co. v. State Racing Commission, 122 Fla. 222, 225, 165 So. 64, 65 (1935) (emphasis in original).

Quasi-judicial decisions have the following four characteristics: (1) quasijudicial action results in the application of a general rule of policy, whereas legislative action formulates policy; (2) a quasi-judicial decision has an impact on a limited number of persons or property owners and on identifiable parties Page⁹ of 25 [*10] and interests, while a legislative action is open-ended and affects a broad class of individuals or situations; (3) a quasi-judicial decision is contingent on facts arrived at from distinct alternatives presented at a hearing, while a legislative action requires no basis in fact finding at a hearing; and (4) a "quasi-judicial act determines the rules of law applicable, and the rights affected by them, in relation to past transactions," while a legislative act prescribes what the rule or requirement shall be with respect to future acts. D.R. Horton, Inc. v. Peyton, 959 So. 2d 390, 398-99 (Fla. 1st DCA 2007) (citing Snyder, supra., 627 So. 2d at 474).

The Encroachment Resolution does not set policy for the entire City of Coral Gables, but is limited to the neighborhood located behind the Cocoplum Main Entrance signs. The court notes that the Encroachment Resolution was entered after a public hearing where the City Commission heard testimony from various community residents regarding encroachments at two specific locations therein. Moreover, the re-approval of the existing encroachment at the Bridge Entrance clearly applies to a determination of "rights ... in relation to past transactions" indicative of quasi-judicial action. Applying the foregoing characteristics, the court concludes that the March¹², 2019 hearing and Encroachment Resolution are quasijudicial in nature and thus reviewable by this court on the Petition.

[*11] DISCUSSION

STANDING

Both the City and the HOA assert that the Association lacks standing to bring this challenge. Respondents argue that while the Petition asserts that encroachments at the Main Entrance were erected on property belonging to the owner of Lot¹, Block 5 of Cocoplum, there is no allegation that this homeowner is a member of the Association or that the homeowner is challenging the modification of the Main Entrance features.

"Standing is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006). In its broadest sense, standing is no more than having, or representing one who has, "a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d DCA 1985) (citing Sierra Club v. Morton, 405 U.S. 727, 731, 92 S. Ct. 1361, 1364, 31 L.Ed.2d 636, 641 (1972)).

The March¹², 2019 City Commission hearing was deemed to be legislative by the City and the March 26, 2019 hearing only addressed design issues so that the Association had no opportunity to address its standing, nor was standing raised as an issue at those hearings. The Association's counsel stated at the March 26, 2019 Page¹¹ of 25 [*12] quasi-judicial Commission hearing over objection that the hearing was only to address design issues:

We represent not only the homeowner's association, we specifically represent the homeowners on both sides of the bridge, the one that goes from Cocoplum Section One to Section Two on Cocoplum Road, both those owners, and we represent the owners of the property at the entrance to the circle immediately adjacent to the sides [sic] [signs].

The Petition also includes the affidavit of Hector Fortun, President of the Association, who owns property next to the Bridge Entrance. The Association's Reply brief states that Fortun, who is represented by the Association, appeared and objected at the March¹², 2019 Commission hearing to the encroachments. The Association also cites to a power of attorney to Hector Fortun from Edward F. Sanchez who is the owner of the property on the Southwest side of Cocoplum Road.

The Association attempted to address Respondents' argument in this proceeding that Plaintiff lacks standing by seeking leave to amend its Petition to include more specific information as to its standing. This court provisionally granted the Motion for Leave to Amend with its ultimate ruling reserved until after the hearing on the merits of the Petition.¹¹ Page¹² of 25 [*13] The HOA claims that they did not waive the argument regarding standing by asserting it below at the March¹², 2019 City Commission Meeting when its attorney argued:

Now, you've heard from the objectors, this civic association - - which, by the way, again, they represent themselves admit that they don't represent 150 people in 150 homes in Phase I. We don't know how many they represent. Maybe they represent the 10 people or so who are here in the room, maybe it's 12, maybe it's 15. But it's a voluntary association that does not speak for the entirety of Phase I or the 150 owners in Phase I. (emphasis added).

While this statement is sufficient for the HOA to avoid a waiver of the standing argument, the standing argument was not squarely made below by the HOA or addressed at all by the City.

Regardless, Florida Rule of Appellate Procedure 9.040(d) provides that:

At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits. In the absence of amendment, the court may disregard any procedural error or defect that does not adversely affect the substantial rights of the parties.

348 Ga.App. 58, 821 S.E. 2d 120, 123 (2018) (citation omitted); see also Krivanek v. Take Back Tampa Political Comm., 625 So. 2d 840 (Fla. 1993) (finding the failure to raise standing generally results in waiver);³ Fla. Jur. 2d Appellate Review § 501 (2019) ("[T]he reviewing court's consideration in certiorari cases is to be confined strictly and solely to the record of the proceedings by the agency or board on which the questioned order is based.").

Alger v. United States, 300 So. 2d 274, 279 n.3 (Fla. 3d DCA 2019).

Page¹³ of 25 [*14] As acknowledged in Cook v. City of Winter Haven Police Dept:

As a general policy, all parties should be given a full and fair opportunity to have their disputes settled on the merits. This policy is evident in our rules of appellate procedure with regard to supplementing the record and may reasonably and logically be extended to amending petitions to add or supplement appendices. See Fla. R. App. P. 9.200(f)(2)... Furthermore, amendments to petitions for writ of certiorari are generally allowed to include additional substantive argument when the interests of justice require. Fla. R. App. P. 9.040(d) ("At any time in the interest of justice, the court may permit any part of the proceeding to be amended so that it may be disposed of on the merits."); see also N. Beach Ass'n of St. Lucie County, Inc. v. St. Lucie County, 706 So. 2d 62, 63 (Fla. 4th DCA 1998). If amendments which include substantive changes are permissible, certainly a party should be able to amend a petition to comply with procedural rules requiring an appendix and appropriate references thereto.

837 So. 2d 492, 494 (Fla. 2d DCA 2003).

The City announced that it was conducting the March¹², 2019 Commission hearing as a legislative hearing, while the March 26, 2019 Commission hearing on the appeal of the Settlement Agreement was a quasi-judicial hearing pertaining solely to design approval of entrance features.¹² As such, the Association was not provided an opportunity to argue or present evidence on the standing issue below. Notwithstanding, the Association did make clear on the record below its representation of the abutting property owners at both the Bridge Entrance and Main Entrance locations. Admittedly, there was overlap between the two hearings when Page¹⁴ of 25 [*15] the entrance features concerning the Main and Bridge Entrance features were addressed. Considering the general policy on amendment and the above analysis, the court is permitting an amendment of the Petition as to the Association's supplemental statement on standing and the Association is deemed to have standing to address the issues raised in the Petition.

PROCEDURAL DUE PROCESS

"Generally, due process requirements are met in a quasi-judicial proceeding 'if the parties are provided notice of the hearing and an opportunity to be heard." A & S Entertainment, LLC v. Florida Department of Revenue, 282 So. 3d 905, 909 (Fla. 3d DCA 2019) (citations omitted). "The proceeding must be 'essentially fair." Id. However, "[t]he extent of procedural due process protection varies with the character of the interest and the nature of the proceeding involved." Carillon v. Seminole County, 45 So. 2d 7, 9-10 (Fla. 5th DCA 2010). "In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts." Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991).

The Association argues that an abutting landowner to the Cocoplum Bridge Entrance did not receive notice of the 2013 Resolution which authorized the construction of the gate posts in the median of Cocoplum Road, and that this alleged Page¹⁵ of 25 [*16] lack of notice alone voids the 2013 Resolution.¹³ However, the Association was provided with notice of the redesign of the entrance features and of the hearing on the approval of the redesign. It was also represented by counsel at three hearings: the BOA hearing, Encroachment Resolution Hearing, and Settlement Agreement hearing.

The Association further contends that it was not present at the conflict resolution meeting held on February⁶, 2019. The City's conflict resolution meeting is an alternative procedure to avoid a hearing before a special magistrate. In this instance, the only conflict to be resolved at the first conflict resolution meeting was the HOA's disagreement and appeal of the BOA's denial of its design application. The Association was not a party to this alternative dispute resolution process. Regardless, any potential denial of due process was cured when the Association was provided with an opportunity to attend and did attend and participate in a second conflict resolution meeting on March 26, 2019. Accordingly, the Association was accorded procedural due process.

ESSENTIAL REQUIREMENTS OF THE LAW

The Association's challenge to the encroachments at both the Main Entrance and Bridge Entrance presupposes that any encroachment granted by a government Page 16 of 25 [*17] entity in a public right-of-way necessarily vacates or abandons a portion of the public right-of-way as a matter of law so that title reverts to the abutting private property owner. The Association relies on the principle that "[a]cceptance of a common law dedication does not pass the fee in land. The interest acquired by the municipality is generally held to be in the nature of an easement, with the public having a right of use and nothing more." Hollywood, Inc. v. Zinkil, 403 So. 2d 528, 537 (Fla. 4th DCA 1981) (citation omitted). The Association correctly asserts that the dedication of the roadways to the City for public right-of-way purposes did not transfer title of the property to the City. See City of Coral Gables v. Old Cutler Bay Homeowners Corp., 529 So. 2d 1188, 1189-1190 (Fla. 3d DCA 1988). When a developer submits a plat to record, the same being properly accepted by the relevant municipality, the purchasers of lots sold in reference to the plat receive title to their lots out to the center of the dedicated roads, subject only to an easement of right-of-way purposes in favor of the public. Walker v. Pollack, 74 So. 2d 886 (Fla. 1954); Smith v. Horn, 70 So 435 (1915).

The Developer was required to request an encroachment before it could build improvements in the dedicated right-of-way at the Main Entrance. By approving Resolution 20850, the City allowed the Developer to encroach into the right-of-way for the purpose of erecting an information booth (now the Guard House) in the center of Cocoplum Road just southeast of the Cartagena Plaza, and the two walls with Page 17 of 25 [*18] signs on each side of the Main Entrance to Cocoplum Road. Petitioner admits that the encroachments into the public right-of-way in 1975 and 1976 to construct the Guard House and Main Entrance features were lawful under City ordinances that permit the adjacent property owner (the Developer at that time owned the entire Cocoplum Tract) to request an encroachment into the public right-of-way.

The Association argues, however, that in granting the encroachments, the City essentially vacated the right-of-way easement so that the Developer could build the Main Entrance features free of the public easement. The Association further argues that from that moment on, the Developer became the owner of the fee in the land at the Main Entrance to Cocoplum and that once the lots adjacent to the Cocoplum entrance were sold, the abutting fee owners held title to the lots out to the center of the road.¹⁴ Following this analysis, the Association specifically claims that the Main Entrance wall including the new "Islands of Cocoplum" sign is located on property belonging to Lot¹, Block 5 of Cocoplum.

The Association provides no legal authority for the proposition that granting an encroachment in the public right-of-way, as a matter of law, necessarily results in the public right-of-way being vacated or abandoned. The law supports a contrary Page 18 of 25 [*19] conclusion. A common law dedication is not extinguished unless and until "it is lawfully surrendered and relinquished." Pelican Creek Homeowners, LLC v. Pulverenti 243 So. 3d 467, 471 (Fla. 5th DCA 2018). Furthermore, abandonment of an easement is a question of intent and the burden of proof is on the person asserting abandonment. Leibowitz v. City of Miami Beach, 592 So. 2d 1213, 1214 (Fla. 3d DCA 1992 (citing Dade County v. City of North Miami Beach, 69 So. 2d 780, 783 (Fla. 1953)). "The person asserting abandonment must demonstrate that there was a "clear affirmative intent to abandon" the easement. Id. (citing Woodlawn Park Cemetery Co. v. City of Miami, 104 So. 2d 851, 853 (Fla. 3d DCA 1958)). The Association fails to meet this burden. Here there is no record of abandonment or vacation of the public right-of-way.¹⁵ Because there is no record evidence proving that the City abandoned or vacated the public right-of-way, there is no support for the Association's claimed reversion of ownership to the adjoining landowners.

Furthermore, the record before this court shows only that the Main Entrance wall and Bridge Entrance features are located in the public right-of-way. There is no boundary survey or other evidence in the record supporting the Association's assertion that had those right-of-way easements been vacated or abandoned by the Page 19 of 25 [*20] City as a matter of law, the encroachments are located on land that would revert to the private property owner abutting the Bridge Entrance or the owner of Lot¹, Block 5 abutting the Main Entrance.

Moreover, the HOA points out that the City is upgrading an existing encroachment. The Association fails to show how changing the wording on the existing Main Entrance wall - an encroachment which undisputedly has existed since 2002 - somehow invalidates the encroachment, creates a new encroachment or changes the public use of the encroachment.

The Association also argues that the City cannot allow the use of public property for a private purpose in the absence of a specific grant of such power in the municipal charter. See Edwards v. Town of Lantana, 77 So. 2d 245 (Fla. 1955). In Edwards v. Town of Lantana, the city allowed a corporation to erect ornamental markers at two street corners. Id at 245. The Florida Supreme Court concluded that there was no provision in the Town charter that granted the Town the power to use public property for a private purpose authorizing the contract between the town and appellants with respect to the ornaments. Id. at 246. As such, the Edwards Court found that the act would be ultra vires because the Town had no inherent power to grant a privilege to use its streets.

The Supreme Court decision in Edwards was later clarified in City of Miami v. Bus Benches, Company, 174 So. 2d 50 (Fla. 3d DCA 1965), wherein the Third Page 20 of 25 [*21] District Court of Appeal explained that:

. . . in the absence of express legislative authority, a city has no power to grant a private individual a privilege to use any portion of its streets or sidewalks for a special private purpose,' is correct as far as it goes, but, in the instant case, the permits are for benches which, in addition to the advertising thereon, provide a public service for the people of the municipality, to-wit: benches for them to sit on while awaiting busses.

Id. at 52. In the instant case, the City Attorney explained that the signage update served dual public purposes as "a directional sign to assist travelers in locating the community and second to promote neighborhood identity and civic pride." Such purposes are akin to that in Bus Benches. Accordingly, neither the Main Entrance feature nor the Bridge Entrance feature is an improper use of the public right-of-way for a private purpose.

Four-Fifths Majority Vote Not Required

The Association also argues that the Resolution allowing the placement of "Islands of Cocoplum" on a wall in the Main Entrance required a four-fifths majority vote pursuant to Section 81 of the City Charter. Section 81 states in part:

No ordinance granting, renewing or leasing the right to use the streets, alleys, public grounds or buildings of the City of Coral Gables to any private person, persons, firm or corporation shall become law or effective in any way unless the same be passed by a vote of four-fifths of all members of the Commission . . .

This argument is unavailing because Section 81 was nullified by the Municipal Home Rules Power Act, Section 166.021(4), Florida Statutes (2011).

Page 21 of 25 [*22] Section 166.021(4) provides, with limited exceptions, that any provisions within a city charter adopted prior to July¹, 1973 that placed limitations upon a municipality's home rule powers were nullified and repealed. The Association admits that the second part of Section 81 that prohibits a lease of City property for more than thirty years was a limitation of power that was nullified by section 166.021(4). However, it claims that the second part requiring a four-fifths vote to allow the use of a City property is not a limitation upon the City's home rule powers. Regardless, Section 81 is no longer in the City Charter and is no longer in effect. Accordingly, there is no legal requirement that a four-fifths vote was required to allow the re-design encroachments.

Permit Not Fraudulently-Procured

As to the encroachment at the Bridge Entrance, the Association argues that the HOA executed and the City recorded, a covenant reciting that the HOA is the owner in fee simple of the "Center Median of Cocoplum Road south east of the intersection at Los Pinos Boulevard" at the Bridge Entrance. The Association claims that because the HOA was not the owner, the permit was procured by fraud and it was void ab initio. However, the recitation that the HOA was the owner was on a City standardized form for general encroachment and restrictive covenant agreements. The permit merely sought to update existing wooden signage on land that has been designated as a public right-of-way for the past 40 years. The form was Page 22 of 25 [*23] completed after receiving the 2013 approval by the City. Accordingly, the standardized form was not the basis for the encroachment. Thus, Resolutions 2019- 83 and 2013-06 were not based upon an ultra vires fraudulent act.

Laches

Respondents argue that the Association is belatedly attempting to challenge Bridge Entrance features that were initially approved in 2002, 2003, and 2013 and that in addition to being untimely 16, the Petitioner's challenge is also barred by the doctrine of laches. 17 We agree.

The Association's belated objections to the Bridge Entrance features that were initially approved in 2002, 2003, and 2013 are untimely and barred by laches because none of those prior actions were ultra vires and subject to review.

COMPETENT SUBSTANTIAL EVIDENCE

Competent substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028, 1031 (Fla. 1980).

16Section 95.11(2)(b), Fla. Sta. requires claims founded upon written instruments to be commenced within 5 years. Many of the encroachment agreements between the City and HOA date back to 1981. As such, the Association's claims regarding these agreements are time-barred based on the court's conclusion that the agreements are not void ab initio.

Page 23 of 25 [*24] The record before the City Commission included copies of the various plats for Cocoplum Section One (Cocoplum) and Cocoplum Section Two (the Islands of Cocoplum); 1926 Biscayne Bay Plat; 1952 Miami Corporation Plat; aerial maps; surveys; design plans; the 1975 and 1976 Guard House Agreements; relevant covenants; the Maintenance Agreement; the Settlement Agreement for the BOA Appeal (including the initial and revised plans for the entrance features); prior Resolutions, etc. Additionally, the Commission considered correspondence setting forth the Association's objections to the Main Entrance and Bridge Entrance features.

This court may not reweigh the evidence or substitute its judgment for that of the lower tribunal. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). The Florida Supreme Court in Dusseau held that "[a]s long as the record contains competent substantial evidence to support the agency's decision, the decision is presumed lawful and the court's job is ended." Dusseau v. Metropolitan Dade County Board of County Commissioners, 794 So. 2d 1270, 1276 (Fla. 2001). Although the Petition argued only that there was a lack of procedural due process and that the essential requirements of the law were not observed below, we find that there was competent substantial evidence supporting the decisions approving the Resolutions.

[*25] CONCLUSION The Association was accorded procedural due process, the essential requirements of the law were observed and the decisions approving Resolution Nos. 2019-83 and 2019-94 were supported by competent substantial evidence.

For the foregoing reasons, the Petition is DENIED.

TRAWICK, WALSH and SANTOVENIA, JJ. Concur COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

Page 25 of 25 [*26] 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] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

17 Laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. It is an equitable defense, and its applicability depends upon the circumstances of each case. Delay alone in asserting a right does not constitute laches, and the burden is on the party who asserts the doctrine of laches to prove prejudice." Ticktin v. Kearin, 807 So. 2d 659, 663 (Fla. 3d DCA 2001).