ALLIANCE STARLIGHT III, LLC

v.

CITY OF CORAL GABLES

Before: WALSH, TRAWICK, and SANTOVENIA, JJ.

WALSH, J.

[*1] Petitioner, Alliance Starlight II, LLC (“Alliance Starlight”) seeks to quash Coral Gables City Resolution No. 2019-95 ratifying a Dispute Resolution Agreement ("Settlement Agreement") Biltmore Development, LLC ("Biltmore") the right to construct a development on property located in the same neighborhood as Petitioner Alliance Starlight.

Background

The Coral Gables City Commission ratified a Settlement Agreement between Biltmore and one of its neighbors, the David William. The Settlement Agreement would allow Biltmore to construct its project notwithstanding Coral Gables' zoning height and Floor Area Ratio ("FAR") limits. The Petitioner argues that the Settlement Agreement should be quashed because it permits Biltmore to violate several provisions of the Coral Gables zoning code and would allow for impermissible spot zoning.

Biltmore's Valencia Property, Petitioner Alliance Starlight's property, and another neighbor, the David William Property, are all zoned "Multi-Family Special Area" ("MFSA"), and all are "high density." Petitioner's property is located at 717, 729, 737, and 741 Valencia Avenue, Coral Gables. Biltmore owns a neighboring property located at 701-11 Valencia Avenue, Coral Gables, ("Valencia Property"). In 2018, Biltmore submitted its application to build an 11-story, 124-foot-high residential condominium. [*2] A section of the Coral Gables zoning code restricts MFSA properties to a maximum height of 70 feet on lots smaller than 20,000 square feet.¹ However, the Biltmore project and Alliance Starlight sit in an area governed by site specific regulations - regulations which only apply to the blocks and lots where all the subject properties sit. The site specific regulations allow building to a maximum height of 150 feet, without mention of lot size. The zoning code limits maximum floor area ratio ("FAR") for these properties to 2.0. There is no provision in the site specific regulations restricting FAR. The Biltmore Plan, David William Litigation, Settlement Process and Quasi-Judicial Hearing Both the David William and Petitioner Alliance Starlight objected to Biltmore's proposed development on the ground that it exceeded the height restrictions in the general zoning code.

In 2007 and 2013, well before Biltmore submitted its application, City Attorney Craig Leen issued a series of written zoning opinions interpreting the City's zoning laws on height. His legal opinions concluded that "site specific" zoning regulations (which apply to specific lot and block numbers) governed over more general regulations, and therefore, the permissible height for development in this N 1 The lot containing Biltmore's project does not exceed 20,000 square feet. [*3] area was 150 ft, not 70 feet,² as limited by the more general zoning code.³ In a later 2018 opinion letter, the subsequent City Attorney, Miriam Ramos, mirrored Mr. Leen's legal conclusions. These legal opinions do not address the zoning code's limitation of floor area ratio ("FAR").

In reliance upon these prior City Attorney legal opinions, City Attorney Craig Leen stopped the Board of Architects from hearing the David William's objections.⁴ The David William property attempted to appeal the Board of Architects' approval of the Biltmore development to the City of Coral Gables' Clerk. Mr. Leen rejected the appeal as untimely, again because he believed that his 2007 and 2013 legal opinions long ago resolved any ambiguity in the City's zoning ordinances.

N 2 Section A-12.B.2.e, Site Specific Zoning Regulations. Section 4-104D.6 of the general Zoning Code limits the FAR to 2.0 An action to review any decision of the City Attorney may be taken by any person or persons, jointly or separately, aggrieved by such decision by filing with the Circuit Court in the manner and within the time prescribed by the Florida Rules of Appellate Procedure. [*4] The David William filed a Petition for Mandamus, Declaratory or Injunctive Relief in the Circuit Court of the Eleventh Judicial Circuit, challenging dismissal of its appeal to the City of Coral Gables' Clerk, the Board of Architects' design approval, the prior City Attorney legal opinions as well as the authority of the City Attorney to issue binding legal opinions interpreting the zoning code.

To resolve the outstanding litigation between the City, the Biltmore, plaintiff Jorge M. Guarch, Jr., and the David William, the parties entered into a Settlement Agreement. However, the Petitioner, Alliance Starlight, was not a party to the settlement. Under the Agreement, the David William agreed to withdraw its lawsuit, and the Biltmore agreed to reduce the size of its project from 124 to 75 feet in exchange for the City granting its project an increase of FAR from 2.0 to 2.7. The City Commission held two public hearings and ratified the Settlement Agreement. While Alliance Starlight submitted written objections to the Settlement Agreement before the hearing, it did not attend the public hearings.

At the hearings, counsel for the David William advocated in favor of approving the Settlement Agreement. But neither the David William nor the Biltmore submitted evidence nor testimony that the Biltmore developer was "unfairly, disproportionately or inordinately burdened" by a final order denying its N 5 Plaintiff Jorge M. Guarch, Jr. was a party in the underlying litigation. [*5] development rights. Vice Mayor Lago objected to the Settlement Agreement, raising several concerns:

I think we're putting ourselves in a position where we're being strong armed by an entity, which is basically getting an additional 35% FAR. Again, what are they going to do with that FAR? So what they're going to do, they're going to take that and flip the property.

I just don't like the fact that anybody comes here and says, look, there's an ambiguity in the code and, you, know, unless we come to some sort of settlement agreement and you give me an additional 35 percent FAR, I'm going to, you know --.... potentially litigate this issue.

Alliance Starlight timely filed this petition for writ of certiorari.

Analysis

On certiorari review, a circuit court determines: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

Procedural Due Process

Petitioner argues that the City Commission did not afford it sufficient notice and opportunity for hearing and therefore violated its due process rights. "A quasijudicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard." Jennings v. Dade [*6] County, 589 So. 2d 1337, 1340-41 (Fla. 3d DCA 1991). The Petitioner admitted in correspondence to the City Assistant Manager before the hearing that it reviewed the proposed Settlement Agreement and made specific objections to deviations from the zoning code. The fact that the Petitioner chose not to attend the hearings does not establish any due process violation. We therefore find that Petitioner's argument that it was deprived of due process is without merit.

Departure from the Essential Requirements of Law Petitioner next argues that the Resolution departs from the essential requirements of law because it fails to abide by the City of Coral Gables Zoning Code. A court "departs from the essential requirements of the law if it applies the wrong law or legal standard." Westerbeke Corp. v. Atherton, 224 So. 3d 816, 821 (Fla. 2d DCA 2017). "Clearly established law can be derived not only from case law dealing with the same issue of law, but also from 'an interpretation or application of a statute, a procedural rule, or a constitution provision.'" State Dep't of Highway Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st DCA 2011) (quoting Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003)).

Departure from the Essential Requirements of the Law Coral Gables Height Restrictions Petitioner argues that the City departed from the essential requirements of law in permitting its neighbor to construct a development over 70 feet in height, because the zoning code only permits buildings higher than 70 feet where the lot size exceeds [*7] 20,000 square feet. Coral Gables Zoning Code Section 4-104.D.8.a limits the "maximum permitted height" for buildings located within the Multi-Family High Density district "[p]ursuant to the Comprehensive Plan Map designation and/ or Site Specific Zoning Regulations." But subsection 4-104.D.8.f limits maximum height of buildings in the "multi-family high density" district to 70 feet if the parcel has a land area of less than 20,000 square feet, and up to 150 feet in height if the lot exceeds 20,000 square feet. §§ 4-104.D.8.f.iii; 4-104.D.8.h, Coral Gables Zoning Code (emphasis added).

The site specific portion of the Coral Gables Comprehensive Plan regulates specifications for the lots and block where the Biltmore Project, David William and Alliance Starlight sit. In contrast to the general zoning code height limitations, the site specific provisions limit height as follows: "No apartment buildings and/or structure shall be erected or altered . to exceed thirteen (13) stories or onehundred-fifty (150) feet in height, whichever is less." § A-12.B.2.e, Site Specific Zoning Regulations. There is no mention of lot size restriction. The "Future Land Use Element" goals and objectives for Coral Gables similarly provide that properties which are multi-family high density may build up to 150 feet in height.

Thus, the site specific regulations permit building up to 150 feet in height, without regard for lot size, while the more general zoning code limits maximum height to 70 feet for buildings with a lot size of less than 20,000 square feet. [*8] In 2007, 2013, and 2018, the City Attorney for Coral Gables issued written opinions interpreting the code to permit buildings up to 150 feet in this specific district irrespective of lot size. The City argues that these opinions were final appealable decisions on zoning matters and that because the Petitioner had the right to but did not appeal these legal opinions issued in 2007, 2013 and 2018, the Petitioner's current petition is untimely. The City relies upon Section 2-702 of the Coral Gables City Code, which states:

The City Attorney serves as the final authority with regard to legal issues involving interpretation and implementation of these regulations. An action to review any decision of the City Attorney may be taken by any person or persons, jointly or separately, aggrieved by such decision by filing with the Circuit Court in the manner and within the time prescribed by the Florida Rules of Appellate Procedure.

The Petitioner counters that this Court may not defer to an agency's interpretation of its own code without violating the newly-adopted Article V, Section 21 of the Florida Constitution. We need not decide whether written legal opinions by the N 6 Respondent points out that these legal opinions would be no surprise to Alliance Starlight. Counsel for Alliance Starlight on behalf of another client emailed Craig Leen specifically soliciting the opinion that a developer could build to 150 feet in this district. Thus, Respondent argues that there was ample opportunity to appeal this legal interpretation in 2013 or 2014, and now, it is too late. N 7 Judicial interpretation of statutes and rules. In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo. Art. 5, § 21, Fla. Const. [*9] Coral Gables City Attorney constitute final, binding, appealable decisions. Nor need we determine whether Article V, Section 21 of the Florida Constitution bars this court from deferring to the opinions of a municipal city attorney, because we independently determine that under the code, Biltmore is permitted to build its Valencia Property to a height of 150 feet, irrespective of lot size.

City ordinances are interpreted in the same manner as state statutes. Surf Works, L.L.C. v. City of Jacksonville Beach, 230 So. 3d 925, 930 (Fla. 1st DCA 2017). Once the plain meaning of applicable provisions is determined, if provisions conflict and therefore cannot be harmonized in pari materia, then the specific provision will govern over the general. Id., citing Cone v. State, Dep't of Health, 886 So. 2d 1007, 1010, 1012 (Fla. 1st DCA 2004) (citation omitted).

Moreover, the City codified the principle that the site specific regulations prevail over general zoning regulations. Section 4-101.D of the City of Coral Gables Zoning Code (performance standards) addresses how the City resolves a conflict between the general provisions of the zoning code and site specific regulations:

The following performance standards shall govern the general development of structures in this District. Where there are specific standards for properties that are specifically set forth in the Site Specific Zoning Regulations, the regulations in the Site Specific Regulations shall apply.

N 8 Although by its plain language, Florida's new “Anti-Chevron" doctrine would appear to apply only to interpretation of a "state statute or rule." A municipal zoning ordinance is a local ordinance, not a state statute or rule. [*10] (emphasis added) Thus, we need not defer to the legal opinions of the City Attorney as Coral Gables urges. Instead, we independently conclude that site specific regulations govern over general zoning ordinances, and therefore, Biltmore was permitted to build up to 150 feet without regard for lot size.

As the City Commission's adoption of the Settlement Agreement did not deviate from the height requirements of the site specific zoning provisions, there was no departure from the essential requirements of law in ratifying the part of the settlement agreement permitting the Biltmore project to be built to a height of 75 feet.

Departure from the Essential Requirements of Law - Settlement Agreement and Increased Floor Area Ratio Under the Settlement Agreement, the David William agreed to dismiss its litigation, the Biltmore agreed to reduce the height of its project from 124 to 75 feet and in exchange, the City allowed Biltmore an increase of floor area ratio from 2.0 to 2.7. The only code provision that limits floor area ratio for MFSA high density properties is Coral Gables zoning code section 4-104.D.6: "Floor area ratio. Maximum floor area ratio (FAR) shall not exceed 2.0." (emphasis added) [*11] Division 17 of the City's zoning code addresses settlements. Article 3, Division 17, Section 3-1701, Coral Gables Zoning Code, Purpose and Applicability states:

The process [settlement] may also be initiated by the City to settle litigation in order to avoid unfairly, disproportionately, or inordinately burdening a party to that litigation, such as to mitigate the burden where a party to a settlement agrees in the settlement to bear a disproportionate burden of a government use that benefits the public.

Section 3-1703 Guidelines. B. states:

The decision to grant relief pursuant to this Division rests in the sound discretion of the City Commission in the exercise of its inherent sovereign powers to settle legitimate disputes. The policy of the City is to fashion a proposal for resolving the dispute based on a considered balance of the following factors:

1. The degree of burden suffered by the applicant or

property owner. 2. The nature and significance of the public interest that is served by the application of the regulation to the property.

3. The likelihood of litigation, and its likely cost, the

City's potential exposure, the uncertainly of outcome, the timetable for resolving the issues, and whether there is a perceived need for a judicial determination of the issues raised by the application.

Thus, if a property owner demonstrates that it suffered an unfair, disproportionate, or inordinate burden, the city is vested with discretion to approve [*12] a settlement which deviates from the code. In the proceedings below, short of conclusory allegations in the Settlement Agreement itself, neither the City nor the Biltmore brought forth any evidence no testimony, exhibits or other evidence establishing such a burden. Moreover, the City Commission made no factual findings that Biltmore suffered a burden. Instead, the City Attorney expressed the need for additional FAR, and the Planning and Zoning Director described additional FAR as part of the settlement. Vice-Mayor Vincent Lago complained, "... we are being taken for a ride for additional FAR..." (Alliance Appx. 000119).

The City Commission departed from the essential requirements of law in two respects. First, it adopted a Resolution that is inconsistent with its zoning code limiting FAR to 2.0. Second, the City Commission adopted a Resolution in violation of Sections 3-1703 through 3-1705 which require that to approve a settlement, there be evidence of an unfair, disproportionate, or inordinate burden imposed on the property owner. 10 N 9 ".... Owner alleges that reducing the project's height would disproportionately and inordinately burden the owner's property rights in violation of Division 17 of the City of Coral Gables Zoning Code and the Bert J. Harris Act as codified in Section 70.001 of the Florida Statutes." (emphasis supplied). Also, "WHEREAS, pursuant to Section 3-1703(B) of the City of Coral Gables Zoning Code, all relief granted pursuant to Division 17 is conditioned upon the execution of a release of all claims that may arise from or relate to the application of the land development regulations that allegedly created the unfair, disproportionate or inordinate burden." (emphasis supplied). (Alliance Appx. 000096). N 10 Section 3-1703.A. provides:

If the City Commission finds that an applicant has demonstrated that it has suffered an unfair, disproportionate or inordinate burden as a result of the application of these regulations to its property, the City Commission may grant appropriate relief. Likewise, if the City demonstrates that a settlement would avoid, mitigate, or remedy [*13] Spot Zoning Additionally, Petitioner argues that in permitting an unjustified increase in FAR applicable to only one property, the resolution approving the Settlement Agreement resulted in spot zoning. "Spot zoning is the name given to the piecemeal rezoning of small parcels of land to a greater density, leading to disharmony with the surrounding area." S. W. Ranches Homeowners Ass'n, Inc. v. Broward County, 502 So. 2d 931 (Fla. 4th DCA 1987). The name generally applies to a city rezoning only one or a few lots.11 Metro Dade County, 695 So. 2d 908, 909 at n. 2 (Fla 3d DCA 1997). A spot zoning challenge examines "(1) the size of the spot; (2) the compatibility with the surrounding area; (3) the benefit to the owner; and, (4) the detriment to the immediate neighborhood." Id., citing Parking Facilities, Inc. v. City of Miami Beach, 88 So. 2d 141 (Fla.1956) and Dade County v. Inversiones Rafamar S.A., 360 So. 2d 1130 (Fla. 3d DCA 1978).

Approval of the settlement permitting an increase of FAR allowed for disparate treatment of the single Valencia Property for the sole benefit of the owner an unfair, disproportionate, or inordinate burden to a property owner, the City Commission may grant appropriate relief. N¹¹ The "classic" definition of spot zoning is "the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area for the benefit of the owner of such property and to the detriment of other owners." Plannersweb.com 2013/11 (citing Anderson's American Law of Zoning, 4th Edition §5.12 (1995)). [*14] of the Biltmore. The Resolution permitted an impermissible variance from FAR requirements required by the Comprehensive Plan and Zoning Code yet denied the same FAR increase to properties similarly zoned like the Petitioner's property. See Debes v. City of Key West, 690 So. 2d 700, 701 (Fla. 3d DCA 1997) (disapproving municipal rezoning of single property from medium-density residential to commercial general to permit construction of a shopping center because singling out one property for disparate treatment is impermissible spot zoning). The City Commission's approval of the Settlement Agreement here constitutes spot zoning because it singles out the Biltmore Property for disparate treatment, and we therefore find a departure from the essential requirements of law.

Lack of Competent, Substantial Evidence

As set forth above, the City violated its own zoning code in approving a settlement agreement without requiring proof or making findings that the developer suffered an inordinate or unfair burden. Likewise, the resolution passed without any competent, substantial evidence to support it. Because there was no competent, substantial evidence to support the resolution approving the settlement agreement, we must quash it. See De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) (competent substantial evidence is "such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred"); Smith v. Dep't of Health and Rehabilitative Servs., 555 So. 2d 1254, 1255 (Fla. 3d DCA 1989). [*15] Bert J. Harris Act The Respondent argues that the developer established its inordinate burden under the Bert J. Harris Act. Section 70.001, et seq., Florida Statutes ("Bert J. Harris, Jr., Private Property Rights Protection Act") provides:

When a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of government, as provided in this section.

The term "inordinate burden" is defined as follows:

(e) The terms "inordinate burden" and "inordinately burdened":
1. Mean that an action of one or more governmental entities has directly restricted or limited the use of real property such that the property owner is permanently unable to attain the reasonable, investmentbacked expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large.

Specific procedures which must be followed to establish an issue under the Bert J. Harris Act were never properly addressed nor raised. See § 70.001(4), Fla. Stat. (2019). At the March 12, 2019 hearing, the Deputy City Attorney explained that the Settlement Agreement resolved the David William litigation, and "any potential Bert Harris claim that the developer might make against the City for not [*16] having the highest and best use of their property." (Alliance Appx. 000111). But neither the developer nor the City Attorney proffered or put forth any evidence which would support a finding of inordinate burden under the definition of that term under the Act. Accordingly, this Court finds no merit in the Respondent's argument that the mere mention of an alleged Bert J. Harris problem satisfied the property owner's burden to enable the City to ratify the settlement.

We reject without further comment the arguments of Respondent that the Petition for Certiorari is barred because it is untimely or based upon the doctrine of unclean hands.

Conclusion

We grant the Petition for Writ of Certiorari and quash the resolution approving a Settlement Agreement allowing an increase of FAR in violation of the city zoning code as a departure from the essential requirements of law, absent competent substantial evidence to support it, and because the resolution constitutes impermissible spot zoning.

TRAWICK, J., concurs.

SANTOVENIA, J., concurring in part and dissenting in part.

The Petition seeks a writ of certiorari directed to the City of Coral Gables ("City") to quash City Resolution 2019-95 (“Resolution") and set aside in its entirety the Settlement Agreement ratified thereby. To the extent the majority opinion [*17] concludes that the Petition should be granted and quashes the Resolution approving the settlement as to the FAR of 2.7, I concur with the majority's conclusion. I respectfully dissent in part with the majority's opinion ratifying the part of the Settlement Agreement permitting the Biltmore project to be built to a height of 75 feet and concluding that Biltmore was permitted to build up to 150 feet without regard for lot size.

The majority correctly concludes that "the City violated its own zoning code in approving a settlement agreement without requiring proof or making findings that the developer suffered an inordinate or unfair burden. Likewise, the resolution passed without any competent, substantial evidence to support it. Because there was no competent, substantial evidence to support the resolution approving the settlement agreement¹², we must quash it". That conclusion applies equally to all of the terms of the Settlement Agreement: the agreed-upon project height limit of 75 feet and the FAR of 2.7. Accordingly, the same conclusion- that the Petition be granted and the Resolution be quashed- -should be reached as to the Settlement Agreement in its entirety.

N 12 The need for that proof and findings of inordinate burden on the Biltmore supporting the settlement is highlighted where the Bert J. Harris suit was only potential, and the action that had been taken on the Biltmore's development application by the City thus far- the approval of the application by the City's Board of Architects-was actually favorable to the Biltmore. [*18] Furthermore, there is no more substantial competent evidence in the record to support the approval of the 75-foot height for development of the Valencia Property than is lacking to support the FAR of 2.7. The record supports only that these negotiated terms were agreed to in the Settlement Agreement by Biltmore in order to resolve the lawsuit filed by its neighbor, the David William. (Alliance Appx. 000112, lines 4-11).

The majority, after stating that "we need not defer to the legal opinions of the City Attorney as Coral Gables urges" goes on to state that "we independently conclude that site specific regulations govern over general zoning ordinances, and therefore, Biltmore was permitted to build up to 150 feet without regard for lot size."13 (emphasis added). However, the City has not at any time specifically concluded that the height cap of 150 feet contained in Section A-12.B.2.e, Site Specific Zoning Regulations applies without regard for lot size nor is that conclusion included anywhere in the Settlement Agreement or in the Resolution.

N 13 The majority similarly concludes that "the site-specific regulations allow building to a maximum height of 150 feet, without regard for lot size." (emphasis added). N 14 The City's Response to the Petition also references a December 18, 2014 zoning verification letter and a 2015 letter written by the former City Attorney regarding the Valencia Property, but [*19] the "site specific governs and the maximum height is 150 feet." (Alliance Appx. 000068) (emphasis added). That legal opinion nowhere concludes that the height cap in § A-12.B.2.e, Site Specific Zoning Regulations applies to the Valencia Property regardless of minimum lot size requirements in the City Zoning Code.

Similarly, the whereas clauses in both Resolution 2019-84 (Alliance Appx. 000157) and the Settlement Agreement (Alliance Appx. 000161) cite to the former City Attorney's April¹¹, 2017 Legal Opinion Regarding 701 Valencia Avenue (CAO 2017-13), and also only state that the maximum height is 150 feet without making any reference to or reaching any conclusion whatsoever regarding the lot size provisions of the City Zoning Code.

The site specific provision in § A-12.B.2.e, Site Specific Zoning Regulations, by its plain meaning, governs only the issue of the height cap15. Alliance Starlight argues in its Petition that the lot size provisions of the City Zoning Code apply and can be harmonized with the height cap. Notably, the City's Response to the Petition does not attempt to refute or take a contrary position to Petitioner's argument regarding lot size, but instead fails to respond to Petitioner's argument altogether. Whether that height cap provision conflicts with, or alternatively can be harmonized does not address how or whether these letters have the force of legal opinions, are published or publicly disseminated, or equate to a zoning decision by the City's decision making body. N 15 That site specific provision provides: "No apartment buildings and/ or structure shall be erected or altered .. to exceed thirteen (13) stories or one-hundred-fifty (150) feet in height, whichever is less." § A-12.B.2.e, Site Specific Zoning Regulations. [*20] with, requirements contained in the performance standards of the City Zoning Code addressing the separate issue of minimum parcel dimensions (Alliance Appx. 000009) is an issue that has not been squarely addressed by the City either in its legal opinions or in this appeal.

The majority concludes that "Biltmore was permitted to build up to 150 feet without regard for lot size". The issue of whether Biltmore could, as a matter of law, develop the Valencia Property to 150 feet regardless of lot size was not decided below and is thus not properly before us in this appeal, nor does this court sitting in its appellate capacity have jurisdiction to issue advisory opinions. See generally Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Company, 137 So. 3d 1049 (Fla. 4th DCA 2014). We should refrain from doing so.

For the foregoing reasons, I respectfully dissent and would grant the Petition, quashing the Resolution in its entirety.

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