THE RIVERFRONT MASTER ASSOC.

v.

CITY OF MIAMI

REBULL, J.

The River Front Master Association and the Mint Condominium Association petition this court for a writ of certiorari to quash a Resolution of the City of Miami Planning, Zoning and Appeals Board. We dismiss a portion of the petition as moot. Because we also find that the PZAB's Resolution doesn't depart from the essential requirements of law, we deny the petition as to the remaining arguments.

Factual Background and Procedural History

The parties' submissions reflect that Brickview owns the property located at 39-55 and 95 SW Miami Avenue Road in the City of Miami. Brickview has proposed a 58-story mixed use condominium and hotel project known as the "Edge" (the "Project") on the Property. The Property abuts the Miami River, and is located on its south side, next to the Miami Avenue Bridge. The Property is located 217 feet across the river from three existing residential high rises represented by the Petitioners: the Mint, the Ivy, and the Wind (collectively the "Riverfront Project"). In addition to the three existing residential high rises, Petitioner, Riverfront Master Association, represents the interests of three undeveloped lots N 1 The resolution's "Enactment Number" is PZAB-R-19-004, with an "Execution Date" of 3/6/2019. Page 2 of 14 [*3] within the Riverfront Project, which will eventually be developed into additional high rise condominiums.

In connection with the planning and design of the Project, Brickview applied to the "Director of Zoning/Zoning Administrator" for certain waivers from applicable city code provisions. The Zoning Administrator issued a Final Decision (File No. 2018-0098) approving the waivers, with conditions. The waiver which is the main focus of the petition relates to setbacks for waterfront property. The Final Decision reads as follows with regard to the waterfront setbacks:

The subject proposal has been reviewed for the following Administrative Permits:

• Waiver, pursuant to Article 3, Section 3.3.3(c), Where an existing lot of record is located adjacent to a Thoroughfare in a manner that creates an irregular Frontage such that the side or rear yards cannot be determined as with a regular lot, to allow the Zoning Administrator to determine the yard and setback for the lot, as fits the circumstances of the case.

In reviewing this application the following findings have been made: FINDINGS:

• It is found that the Waterfront setback of 13.2' is 25% of the average Lot depth of 52.76', pursuant to Article 3, Section 3.11(a)(1), which states that where the depth of the Lot is less than two hundred feet (200'), the Setback must be a minimum of twenty-five percent (25%) of the Lot depth.

• It is found that the Waterfront side setback is approximately seventyfour (74') feet, more than the required sixty-nine (69') feet or twenty- N 2 "The Waiver permits specified minor deviations from the Miami 21 Code, as provided in the various articles of this Code and as consistent with the guiding principles of this Code. Waivers are intended to relieve practical difficulties in complying with the strict requirements of this Code. Waivers are not intended to relieve specific cases of financial hardship, nor to allow circumventing of the intent of this Code. A Waiver may not be granted if it conflicts with the City Code or the Florida Building Code." Article 7, Section 7.1.2.5 of the Miami 21 Code. Page 3 of 14 [*4] five percent (25%) of the water frontage of the average lot width of 276'; to allow View Corridors open from ground to sky and to allow public access to the waterfront, pursuant to Article 3, Section 3.11(a)(2).

• It is found that the Lot is located adjacent to SW Miami Avenue Road in a manner that creates an irregular Frontage, such that the side setbacks cannot be determined as with a regular Lot. Therefore, pursuant to Article 3, Section 3.3.3(c), the Zoning Administrator has determined the side setbacks for the Lot to be zero feet (0'), by Waiver, with ten feet (10') provided on the south-east side, and 53'-5" provided on the south-west side for the Height of the Building.

River Front and Mint appealed the Zoning Administrator's Final Decision to the City of Miami Planning, Zoning and Appeals Board. Part of the basis for the appeal was that the Final Decision violated the City Charter and the City Code as it relates to waterfront setback standards.

The City of Miami's governing document - its Charter - expressly speaks to the heightened scrutiny given to proposals to build on the City's waterfront:

(ii) In order to preserve the city's natural scenic beauty, to guarantee open spaces, and to protect the waterfront, anything in this Charter or the ordinances of the city to the contrary notwithstanding, neither the city nor any of its agencies shall issue building permits for any surface parking or enclosed structures located on Biscayne Bay or the Miami River from its mouth to the N.W. 5th Street Bridge, (A) which are not set back at least 50 feet from the seawall (where the depth of the lot is less than 200 feet, the setback shall be at least 25 percent of the lot depth), and (B) which do not have average side yards equal in aggregate to at least 25 percent of the water frontage of each lot based on average lot width.

(iii) The above setback and side-yard requirements may be modified by the city commission after design and site-plan review and public hearing only if the city commission Page 4 of 14 [*5] determines that the modifications requested provide public benefits such as direct public access, public walkways, plaza dedications, covered parking up to the floodplain level, or comparable benefits which promote a better urban environment and public advantages, or which preserve natural features. Section 3(mm)(ii) and (iii), The City of Miami Charter (emphasis added).3 N 3 The Miami 21 Code has a Waterfront Standards provisions consistent with the Charter:

3.11 WATERFRONT STANDARDS In addition to the Miami City Charter requirements, the following Setback, walkways and Waterfront standards shall apply to all Waterfront properties within the City, except as modifications to these standards for all Waterfront properties may be approved by the City Commission pursuant to the procedures established in the City Charter. a. Waterfront Setbacks

1. For properties fronting a Waterway, the Setback shall be a minimum of fifty (50) feet measured from the mean high water line provided along any Waterfront, except where the depth of the Lot is less than two-hundred (200) feet the Setback shall be a minimum of twenty-five percent (25%) of the Lot depth. . . .

2. For properties fronting a Waterbody, the Setback shall be a minimum of twenty-five (25) feet measured from the mean high water line provided along any Waterfront, except for the following:

1. Where the depth of the Lot is less than one-hundred (100) feet, the Setback shall be a minimum of twenty-five percent (25%) of the Lot depth; and

2. For T3, T4-R, D1, D2, and D3 Transect Zones, a minimum Setback of twenty (20) feet shall be provided, except where the depth of the Lot is less than eighty (80) feet, the Setback shall be a minimum of twenty-five percent (25%) of the Lot depth.

3. Side Setbacks shall be equal in aggregate to at least twenty-five percent (25%) of the water frontage of each Lot based on average Lot Width, to allow View Corridors open from ground to sky and to allow public access to the Waterfront. . . . Page⁵ of 14 [*6] Thus, the Charter itself imposes certain setback and side-yard requirements for structures to be built on the waterfront. And it is only the Miami City Commission which may modify those requirements, provided it makes the determinations set forth in the Charter that the modifications provide the public benefits set forth therein.

At the hearing before the PZAB, the City - which had earlier supported the waterfront setback waiver - acknowledged that it shouldn't have been approved by the Zoning Administrator. As a result, at the PZAB hearing Brickview essentially abandoned that waiver ("We have agreed not to request the Waiver for the Waterfront Setback), and instead pledged to comply with the applicable Charter and code provisions in that regard. The PZAB ultimately voted (in less than clear oral motions) to reject the appeal of the Final Decision, thus allowing the Final Decision to stand. The City memorialized the PZAB's action in the Resolution which the petitioners are now asking us to quash.

1. Discussion

The Waterfront Setback Waiver Issue is Moot.

We dismiss that portion of the petition related to the waterfront setback issue as moot. "Mootness can be raised by the appellate court on its own motion." Montgomery v. Dep't of Health & Rehab. Services, 468 So. 2d 1014, 1016 (Fla. 1st DCA 1985). "Mootness occurs in two basic situations: [W]hen the issues presented are no longer 'live' or [when] the parties lack a legally cognizable interest in the Page 6 of 14 [*7] outcome." See id. at 1016 (internal quotations and citations omitted). "It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue." See id. at 1016- 17.

The issue presented as to the waterfront side setback waiver is no longer "live." There is NOT an actual controversy. Brickview has unambiguously indicated that it will not use the waiver from applicable code provisions for the side setbacks. Instead, at the hearing before the PZAB, Brickview clearly indicated that it will comply with the Charter and code provisions regarding the required side setbacks for waterfront property:

And despite that fact, I will tell you that it is an impact to the project, but we're willing to accept it. It will require that we reduce or increase our setback slightly on the Southeast corner of the property. And that will resolve two issues that Mr. Martos [on behalf of River Front] has raised today, which is the waterfront setback, and the side setback from the bridge.

*** We have agreed not to request the Waiver for the Waterfront Setback. So I'm not going to talk about that issue, but I will talk about the zero front setback.

*** We know we have to make changes to the plan anyway as a result of the waterfront setback issue.

*** For the record, we're prepared to comply with the waterfront setback requirement. I said it, and I'll say it again, and our client is going to do that. It's a six foot deviation along the street frontage. It's not a big deal, and we're going to do it.

*** Page 7 of 14 [*8] I want the Board to understand that we mean what we say.

*** I don't think that's what this appeal was about, but we'll do it. (Tr. of PZAB of Jan. 30, 2019 at 53, 58, 85, 138-39)(emphasis added).

Both before and after the PZAB's vote on whether to grant the appeal and reverse the decision of the Zoning Administrator regarding the waiver of waterfront setback requirements, Brickview unequivocally pledged that it was no longer going to use the waiver. It was going to design, plan and build in compliance with the code. At that point, there was nothing for the PZAB to reverse as to that waiver, because Brickview wasn't going to use it. It's more than reasonable to assume that, when the PZAB voted on whether or not to reverse the Zoning Administrator's Final Decision, it did so knowing that waterfront setback waiver was no longer a "live" or "actual" controversy, as Brickview had essentially conceded that the petitioners were correct, and it would not avail itself of the waiver.4 As a result, we dismiss the petition as moot, as it relates to the waterfront setback issue.

2. The PZAB Resolution Accurately Memorializes What Happened at the Meeting.

N 4 From our review of the transcript, we note that the assistant city attorney assigned to provide guidance to the PZAB on legal and procedural issues (and presumably to help make clear what its intentions were with respect to the appeal), was not particularly helpful in that regard; including the failure to point out that the appeal as to that issue was now moot. Page 8 of 14 [*9] The Petitioners argue that the lower tribunal's determination must be quashed because they contend that the written Resolution doesn't accurately memorialize the action taken by the PZAB. Although the transcript of the proceedings before the PZAB is very far from a model of clarity, the Resolution accurately memorializes what transpired at the hearing. Even assuming the petition were not moot as to the waterfront setback waiver, we deny the Petition on this point.

Before the PZAB took its final vote regarding the appeal of the Final Decision, Brickview made it abundantly clear to the Board (as we've noted in the transcript excerpts above) that it was no longer going to attempt to avail itself of the waiver from charter and code requirements as it relates to waterfront setbacks. It was instead going to redesign its project to comply with those requirements. Thus, as we've already noted above in our discussion of mootness, it's reasonable to assume that when the Board voted, it no longer considered the waterfront setback waiver to be an issue.

Unfortunately, the PZAB voted on the appeal of the Final Decision as a whole; in other words, despite the fact that the Decision granted multiple different waivers as to various matters unrelated to waterfront setbacks (such as, for example, minimum parking space requirements), the Board voted on the appeal of the Decision as a whole.

Page 9 of 14 [*10] Board Member Gersten made a motion to "uphold the appeal." The assistant city attorney in attendance characterized the motion as one to "grant the appeal of all the Waivers," and to "grant the appeal in whole, which denies all the waivers." The Board members voted as follows:

Yes No

1. Garvaglia 1. Althabe

2. Gersten 2. Dominguez

3. Parrish 3. Vadillo

4. Torrens 4. Zeigler

5. Collins Thus, the PZAB voted to reject the entire appeal of the Decision.

After that vote, River Front's lawyer addressed the Board: "There were commitments and agreements made here, and I want a clear record of those agreements that are still standing. The agreement, you will recall, was that the applicant, the developer...." In response, Board Member Collins (who had voted to reject the appeal entirely), inquired as to whether it would be possible to reverse or remove the waiver related to waterfront setbacks, since everyone agreed it wouldn't be used and shouldn't have been granted.

The assistant city attorney told member Collins: "Someone from the prevailing side would have to make a motion to reconsider, and it would have to pass by a super majority -- I'm sorry a majority vote, and then you would have to Page 10 of 14 [*11] -- someone would have to make a new motion."⁵ He also wanted it to be clear that the waterfront setback requirement “is not satisfied." The PZAB Resolution prepared by the City and signed by the Planning Department Director provides in pertinent part as follows:

WHEREAS, the Appellant claimed the approval violates waterfront standards of the City's Charter and Miami 21, Section 3.11; WHEREAS, the Applicant and Appellant during the hearing of this appeal mutually agreed that, notwithstanding the approval of the Setback Waiver by the City's Zoning Administrator, the project approved pursuant to Waiver No. 2018-0098 will be redesigned to provide side setbacks that each individually have a consistent width from the street Frontage to the Miami River and, that in the aggregate, comply with Miami 21 and Section 3(mm)(ii) of the City Charter;

NOW, THEREFORE, BE IT RESOLVED BY THE

PLANNING, ZONING AND APPEALS BOARD OF THE CITY OF

MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The appeal of Waiver No. 2018-0098 is denied. Section 3. Waiver No. 2018-0098 is upheld subject to the redesign of the project approved by Waiver No. 2018-0098 related to Page 12 of 14 [*13] the Setback Waiver as mutually agreed by the Applicant and Appellant before the PZAB. (emphasis added).

The Resolution accurately memorializes the "commitments and agreements" made by Brickview. It also resolves that the waivers were upheld, subject to Brickview redesigning the project to conform with (satisfy) the applicable charter and code requirements related to waterfront setbacks. As a result, we reject the argument that the Resolution does not accurately reflect what transpired at the hearing and, more importantly, that it doesn't accurately reflect the intent of a majority of the Board.

Conclusion

We reject without further extended comment the additional arguments made in the petition. The City's determination that the PZAB's approval of the project would "cure" the open code violation for an unpermitted sales office on the Property, was support by competent substantial evidence, and by a fair reading of what it means for an approval to "cure" a violation. Also, the waiver Final Decision mandated that the plans be changed (from 11%) to comply with the 10% reduction allowed by the waiver. There is no error. We dismiss the petition as moot as it relates to the waterfront setback waiver abandoned by Brickview. Because the lower tribunal otherwise accorded the petitioners due process, applied the correct law, and issued a decision supported by competent substantial evidence, we deny the Petition.

Page 13 of 14 [*14] TRAWICK AND WALSH, JJ., concur. COPIES FURNISHED TO ALL PARTIES OF RECORD