MARIA V CERDA

v.

CITY OF CORAL GABLES

Before: WALSH, TRAWICK, and DE LA O, JJ.

WALSH, J.

Three years ago, Lourdes Valls purchased a one-story ranch-style house for her daughter in the City of Coral Gables (“The City”).¹ The homeowner submitted plans to the City to demolish the house and build a new house in the Mediterranean revival style which permeates her Coral Gables neighborhood. As is required by the Coral Gables code, if a homeowner submits plans to demolish a property, the homeowner must apply for a determination of [*3] historic significance with the Historic Preservation Board. The homeowner accordingly filed her application for a determination of historic significance. At the quasi-judicial hearing before the Historical Preservation Board, both the preservation officer on behalf of the Historical Resources and Cultural Arts Department (HRCAD) and Ms. Valls presented PowerPoint presentations, both of which were accepted in evidence without any objections. The preservation officer testified and presented evidence that the Valls residence was a ranch-style home built in 1936 by renowned architect Russell Pancoast. The house was described as an example of an early Traditional Custom Ranch House, incorporating Art Deco and Art Moderne influences. HCAD recommended preservation based upon three of the criteria set forth in section 3-1103, of the Coral Gables Zoning Code: x Exemplifies the historical, cultural, political, economic or social trends of the Community x Portrays the environment in an era of history characterized by one (1) or more distinctive architectural style; x Embodies those distinguishing characteristics of an architectural style, or period, or method of construction.

Ms. Valls presented her own PowerPoint, again, without objection, containing architectural drawings, photographs of her house and other homes in the neighborhood, renderings, advertisements, and drawings of floorplans. In addition, Ms. Valls’ own architect, Ramon Pacheco, testified in favor of not designating the home historic. Mr. Pacheco is a graduate of the University of [*4] Florida and a prior employee of Pancoast’s firm. He opined that he believed that Russell Pancoast was forced to compromise on the design of this house because he made choices which did not make sense – for example, the odd manner in which the home was oriented on the property. Mr. Pacheco concluded that the home was “not a Russell Pancoast.” Moreover, he testified that the home was significantly transformed since it was built and was not the original house or near its original condition. The historic preservation officer acknowledged that the most significant alterations made to the home were the change to the windows, alteration from the original garage carriage doors to a single-wide garage door, and the replacement of the cement walkway with brick pavers. As is depicted in the color photograph of the Valls’ home introduced at the hearing, Ms. Valls argued that the house appears to be a white ranch-style home, typical in appearance to the ranch-style homes built all over Florida, but not especially represented in the City of Coral Gables. Some alterations to the home had been made in the past. Most of the homes designated historic in Coral Gables were of the Mediterranean revival style, as reflected in the photographs introduced at the hearing. [*5] Following the hearing, the Historical Preservation Board declined to designate the home historic. Following a second hearing, the Board voted not to designate the home historic. The Petitioner, Maria V. Cerda, has lived next door to the property for 33 years.² Ms. Cerda appealed the Board’s decision not to designate her neighbor’s property historic to the City Commission. Following two meetings of the City Commission which resulted in tie votes (Mayor Valdés-Fauli recused himself), the appeal was denied. Ms. Cerda has filed a petition for writ of certiorari asking that we quash the City Commission’s decision to reject her appeal and the decision of the Historical Preservation Board not to designate the home historic. In addition to arguments presented in the Petition, the Petitioner raises a new argument in her Reply Brief, that the City Commission violated the Sunshine Law because the City Mayor sent a memo to members of the City Commission before the appeal. Analysis We have jurisdiction to issue writs of certiorari from quasi-judicial decisions of municipal boards. Art. V, § 5(b), Fla. Const; Haines City Community [*6] Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995), citing De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957). We apply a three-part standard of review: (1) whether procedural due process was afforded; (2) whether the essential requirements of law have been observed; and (3) whether the findings and judgment are supported by competent substantial evidence. Heggs, 658 So. 2d at 530 (Fla. 1995); Board of County Comm'rs of Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). Due Process The Petitioner argues that the City violated her due process rights in three ways. First, she argues that a memorandum sent by the Mayor to members of the Historic Preservation Board caused improper influence over the members of the board. Second, she complained that she was given improper advice by the City Attorney to refrain from ex parte communications with the City Commissioners prior to the appeal. Third, she argues that her due process rights were violated because her appeal was heard virtually on the Zoom platform, rather than in-person. (Pet. at pp. 22-25).3 The Petitioner first argues that her due process rights were abridged because the Mayor sent an ex parte communication to the members of the Historic [*7] Preservation Board. “A quasi-judicial 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 Cty., 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). With respect to a claim that ex parte communications were made to the tribunal, the Court explained: Ex parte communications are inherently improper and are anathema to quasi-judicial proceedings. Quasi-judicial officers should avoid all such contacts where they are identifiable. However, we recognize the reality that commissioners are elected officials in which capacity they may unavoidably be the recipients of unsolicited ex parte communications regarding quasi-judicial matters they are to decide. The occurrence of such a communication in a quasi-judicial proceeding does not mandate automatic reversal. . . . Upon the aggrieved party's proof that an ex parte contact occurred, its effect is presumed to be prejudicial unless the defendant proves the contrary by competent evidence. § 90.304.

Id. at 1341. Here, while there was an ex parte communication by the Mayor to the Board, the record contains evidence to refute any presumption of prejudice. The Mayor’s ex parte communications expressed the City’s pride in its commitment to historical preservation, detailed the process for historical preservation, including changes to the process, and advocated against preservation overkill. The memorandum was read in its entirety to the Board and each member stated that notwithstanding having received it, they could each be fair and impartial. We find that competent evidence overcame any presumption of prejudice, and there was no due process violation. [*8] Second, the Petitioner argues that she was deprived of due process when the City Attorney told her she could not reach out personally to the members of the City Commission before her appeal. In response to Ms. Cerda’s objection that she was prohibited from contacting City Commissioners, the City Attorney explained the following to the members of the Commission at the hearing on the appeal: In his letter, he claims that the Jennings case, which is the case that addresses ex-parte communications, does not stand for the proposition that ex-parte communications should be avoided. However, Jennings itself states that ex-parte communications are inherently improper and that quasi-judicial officers should avoid all contact where they are identifiable. The word “avoid” is actually used in the case. In either event, the concept is that those communications should be avoided when they do occur and the case acknowledges – the board acknowledges in that case that, you know, elected officials are contacted by their – by the people they represent. That is part of human nature. It’s part of the process, and that is why the disclosure – the ability to disclose, to dispel that particular potential for bias is there. That’s exactly what was told to Ms. Cerda. The advice that I gave Ms. Cerda, which is the appellant, was to try to avoid ex-parte communications with the Commission. That is the advice that I give everyone, and I’m sure that the five – the four of you can attest to the fact that I consistently remind the Commission that ex-parte communications should be avoided, and if they are had, that they should be disclosed.

(Resp. App. at p. 89). The City Attorney did not violate Jennings by advising Ms. Cerda to refrain from making ex parte communications. Moreover, Ms. Cerda was able to communicate her opinions to the City Commission. In addition to her record [*9] testimony to the Historic Preservation Board in support of preserving the Valls’ house, her detailed email to the Board setting forth her opinions was included in the record. (Pet. App. at p. 456). Another email sent from Ms. Cerda to members of the community in support of preserving her neighbor’s home detailing all of her arguments was also submitted and read into the record before the City Commission. (Pet. App. at pp. 618-619, 622-624). We find no violation of due process resulting from the City Attorney advising the Petitioner to avoid ex parte communications. Finally, the Petitioner argues that while the property owner, Ms. Valls, executed an agreement to a virtual Zoom hearing on the appeal, Ms. Cerda was not given such a choice. Instead, she was merely instructed that a Zoom hearing was necessary. Ms. Cerda complains about the use of Zoom for her appeal to the City Commission. We first reject this claim because it is unpreserved. The Petitioner failed to object or bring this issue to the attention of the parties below prior to the May 12, 2020 City Commission hearing. The preservation doctrine is intended “to put the [lower tribunal] on notice of a possible error, to afford an opportunity to correct the error early in the proceedings, and to prevent a litigant from not challenging an error so that he or she may later use it for tactical advantage.” Clear Channel Commc’ns., Inc. v. City of N. Bay Village, 911 So. 2d 188, 190 (Fla. 3d DCA 2005) (citations omitted). Ms. Cerda did not object until the second Commission hearing and [*10] therefore cannot now argue that the virtual nature of the hearing violated her due process.

While the Petitioner did submit a letter voicing her objection to virtual proceedings prior to the second May 26, 2020 Commission hearing, we reject her due process claim on the merits. As the City Attorney explained at the May 26 hearing, section 3-607(b) of the City of Coral Gables Code requires that once an appeal is complete and submitted, it “shall” be heard at the next commission meeting. The City (like the rest of the world) was subject to municipal and statewide lockdown but could not by its own ordinances delay the appeal until the lockdown was lifted. The City briefly delayed setting the appeal from April 21 to May 12 to allow the City Attorney to promulgate rules for virtual hearings. (Resp. App. at p. 90). But as the City Attorney explained, proceedings could not be delayed any further or the City would have violated its own code. Moreover, there was no option available to conduct the appeal in a live forum. These proceedings took place during a worldwide pandemic in which local government meetings could not take place live. How courts handled judicial proceedings during the pandemic is a helpful corollary to interpret due process rights during quasi-judicial proceedings. From the onset of the pandemic and concomitant shutdown in March 2020, the Supreme Court of Florida issued multiple [*11] Administrative Orders allowing and encouraging the use of virtual technology in all court matters with some exceptions, including jury trials.⁴ Testing the due process boundaries in the use of virtual technology, the Third District Court of Appeal held that use of a virtual platform to conduct a violation of probation hearing did not violate a defendant’s right to due process and confrontation of witnesses. See Clarington v. State, 3D20-1461, 2020 WL 7050095 (Fla. 3d Dist. App. Dec.², 2020), cert. denied, 3D20-1461, 2021 WL 115633 (Fla. 3d DCA Jan. 13, 2021). If conducting a virtual criminal hearing at which incarceration may be ordered does not violate due process, using Zoom to conduct a quasi-judicial municipal hearing does not violate the due process rights of an aggrieved neighbor. We find the Petitioner’s due process rights were not violated. Departure from the Essential Requirements of Law The Petitioner argues that the Historical Preservation Board departed from the essential requirements of law because “there is no substantial competent evidence whatsoever to support the decision of the Historic Preservation Board that not a single one of the conditions for historic designation in Coral Gables Zoning Code [*12] Sec. 3-1103” were met. Petitioner also argues that the City Commission departed from the essential requirements of law in failing to overturn the decision of the Historic Preservation Board because there is clear and convincing evidence that at least one of the criteria for historic designation under Coral Gables Zoning Code Sec. 3- 1103 were met.

Petitioner’s argument is a mish-mash of an inapplicable evidentiary standard, a reformulated argument that the decision below lacks competent substantial evidence, and a misstatement of this Court’s standard of review. Our role is not, as the Petitioner claims, to determine if the homeowner or the City adequately refuted the “clear and convincing”⁵ evidence offered by the staff analysis. Rather, to determine whether there was a departure from the essential requirements of law, we must determine whether the lower tribunal failed to follow or apply the correct law – in this context, the relevant portions of the municipal code. See Heggs, 658 So. 2d at 530. Here, the Historical Preservation Board and the City Commission adhered to the standards in Article³ – Developmental Review, section 3-1103, of the Coral Gables Zoning Code, which established the criteria for designation of historical [*13] landmarks. The Historical Resources and Cultural Arts Department (HRCAD) recommended historical designation based solely upon these three criteria found within Section 3-1103 of the Coral Gables Zoning Code: x Exemplifies the historical, cultural, political, economic or social trends of the Community x Portrays the environment in an era of history characterized by one (1) or more distinctive architectural style; x Embodies those distinguishing characteristics of an architectural style, or period, or method of construction.

The Historical Preservation Board conducted a public hearing at which it heard and took evidence relating to the enumerated criteria and ultimately declined to designate the home historic. The correct law was followed – the Petitioner merely disagrees with the result. We, therefore, find no departure from the essential requirements of law. Competent Substantial Evidence Next, the Petitioner argues that there was a lack of competent, substantial evidence to support the decisions below. 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). This Court may not reweigh the evidence nor substitute its judgment for that of the lower tribunal. Heggs, 658 So. 2d at 530. The Florida Supreme Court held that “[a]s long as the record contains competent [*14] 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) (emphasis added).

In reviewing the record for evidence supporting the decision below, we find that there was competent substantial evidence presented that the home did not meet the three enumerated criteria. The homeowner’s architect Ramon Pacheco testified that that house was not an exceptional example of a ranch-style home. Mr. Pacheco was a graduate of the University of Florida and an employee of Pancoast’s firm, and thus was well-aware of the relative quality of other Pancoast projects. Mr. Pacheco testified that he believed Mr. Pancoast was forced to compromise on the design of the house. He characterized the house as “not a Russell Pancoast.” He also testified that it had been transformed and was not the original house. In addition, Ms. Valls presented materials to the Board, including photographs, drawings, advertisements from the time of construction, and other materials demonstrating that the Valls home does not satisfy the three enumerated criteria. While much was made at the hearings that the home was designed by famous architect Russel Pancoast, HRCAD did not recommend historical designation based on the criterion that the home was “an outstanding work of a prominent designer or builder.” See § 3-1103, Div. 11, Coral Gables Zoning Code. The HRCAD acted [*15] within its discretion in determining that there was insufficient evidence to cite this criterion in its recommendation for historic designation. The testimony of Ms. Valls’ architect, Mr. Pacheco, in conjunction with the drawings, renderings and photographs introduced by Ms. Valls, support the Board’s decision not to designate the home historic. Accordingly, we find that the decision was supported by competent, substantial evidence. Respondent’s Motion to Strike Untimely Raised Challenge to Violation of the Sunshine Law In her Reply Brief, the Petitioner raises a new argument -- that despite recusing himself from considering the appeal, Mayor Valdés-Fauli violated Florida’s Sunshine Law by engaging in ex parte communications with the City Commissioners.⁶ Because this argument was not presented in her Petition, Respondents have moved to strike this new argument as waived for appeal.

If an argument on appeal is not presented in the initial brief, it is waived for appellate review. An issue may not be raised for the first time in a reply brief. See [*16] Ashear v. Sklarey, 247 So. 3d 574 at n.3 (Fla. 3d DCA 2018), citing Parker–Cyrus v. Justice Admin. Comm'n, 160 So. 3d 926, 928 (Fla. 1st DCA 2015) (issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply). Allowing review of issues raised in a reply would violate due process, “because it would deprive the [opponent] of the opportunity to respond to the new argument raised by Petitioner in the reply.” Parker-Cyrus, 160 So. 3d at 928. The court explained, “‘[w]ithout strict adherence to this rule, the appellees are left unable to respond in writing to new issues presented by the appellants.’” Id. (quoting Snyder v. Volkswagen of Am., Inc., 574 So. 2d 1161, 1161–62 (Fla. 4th DCA 1991)); Gen. Mortg. Assocs., Inc. v. Campolo Realty & Mortg. Corp., 678 So. 2d 431 (Fla. 3d DCA 1996). Even an allegation made for the first time in a reply that serious fundamental error occurred is deemed waived for appeal. See Calabrese v. State, 5D19-2858, 2021 WL 68319 at *3 (Fla. 5th DCA Jan. 8, 2021) (finding Sixth Amendment fundamental error waived where issue not presented to the court until the reply); Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (rejecting ineffective assistance of counsel claim raised for the first time in a reply brief); Ferguson v. State, 200 So. 3d 106, 111 (Fla. 5th DCA 2015) (“However, Ferguson did not preserve any claim of fundamental error because the issue was only presented in his reply brief”), citing [*17] Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“determining that appellate court was not required to undertake fundamental error analysis where defendant did not raise claim of fundamental error in initial appellate brief”). This rule is akin to barring new issues from being addressed by motion for rehearing. See Lowry v. State, 963 So. 2d 321, 328 (Fla. 5th DCA 2007) (“However, unfamiliarity with fundamental error doctrine and Florida Rule of Appellate Procedure 9.330(a) is not a sufficient basis for a motion for rehearing”), citing Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1100-01 (Fla. 4th DCA 1993); Rosier v. State, 276 So. 3d 403 (Fla. 1st DCA 2019) (in rejecting an argument not briefed raised for the first time in a rehearing the majority noted “fundamental principles of appellate review and judicial restraint apply even when the defendant has been convicted of a capital crime and sentenced to death”) (citations omitted). We find that these arguments are waived and therefore grant Respondent’s motion to strike new arguments presented in the Reply Brief because they are barred for appellate review. Motion to Strike is granted; the petition for writ of certiorari is denied. TRAWICK and DE LA O, JJ., CONCUR. C O P I E S F U R N I S H E D T O C O U N S E L

O F R E C O R D A N D T O A N Y P A R T Y

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