RONALD YEARBY

v.

MIAMI DADE COUNTY BOARD OF COUNTY COMMISSIONERS

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

PER CURIAM.

Filing # 127389593 E-Filed 05/24/2021 01:22:36 PM [*2] Appellant, Ronald Yearby (Mr. “Yearby”), seeks to quash a Miami-Dade County Ordinance rendered by the Miami-Dade Board of County Commissioners (the “BCC”) in Resolution No. Z-10-20 sustaining the Community Zoning Appeals Board (the “CZAB”) Resolution number CZAB8-18-19. This resolution approved a zoning district boundary change requested by VF Acquisitions, LLC (“the “Applicant”). Background The Applicant owns a property located east of Northwest 32 Avenue between Northwest 71 Street and Northwest 73 Street, in unincorporated Miami-Dade County. Mr. Yearby lives south of the subject property in an abutting residential neighborhood known as “Gladeview.” Most of the subject property was already zoned IU-1, or Light Industrial Manufacturing District, but a small fragment of the property was zoned RU-1, Single-Family Residential District. The Applicant applied to the CZAB for approval to rezone the fragment from RU-1 to IU-1, to categorize the property under one zoning designation. The Applicant described this as an attempt to “square off” their property. The Miami-Dade County Department of Regulatory and Economic Resources submitted a staff report in favor of the rezoning. The report noted that industrial uses lie to the north, east and west of the subject property and residential uses lie to the south. The report further explained that the subject property is designated “Industrial [*3] and Office” on the Comprehensive Development Master Plan (the “CDMP”). The CDMP Land Use Element Objective LU-4 “requires the County to reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretive text, or with the character of the surrounding community.” (Emphasis in Original) (App. at p. 19)1 Rezoning the inconsistent fragment zoned RU-1 would accomplish this objective. The staff report further noted that the Applicant proffered a “Declaration of Restrictions” which would limit use to light industrial and preclude such uses as adult entertainment, day care centers, auto repair shops, night clubs, etc. The Traffic Review Section of the Department of Regulatory and Economic Resources did not object to the rezoning, because the property lies within “the urban infill area where traffic concurrency does not apply.” Id. Therefore, no excessive noise or undue or excessive burden on public facilities would occur. Nor would the change affect fire rescue services in the subject area. Every affected department recommended approval. The staff report therefore recommended approval of the rezoning application.

[*4] A hearing was held before the CZAB on December 11, 2019.2 At the hearing, counsel for the Applicant, Juan Carlos Bermudez, remarked: Now, one thing that is very important is last time we were here, we had some residents, some that at that point hadn’t had a chance to speak to us, and maybe appear as protest at the time. We have since then – and I’ll defer to both of the principals of the applicant who are both here. We’ve had a meeting with the Gladeview Homeowners and Civic Association, Ms. Barr, and a group of residents, I think about 15 in particular, here at the Dayspring Missionary Baptist Church.

So we have spoken to the residents as you’ve instructed us, had an opportunity to let them know exactly what we would plan to do here, which we went through last time, and hopefully tonight you will hear from them also and their point of view in support of this item.

(App. at p. 92).

Two residents spoke at the December 11, 2019 hearing in support of the application. Both live in proximity to the proposed development. (App. at p. 94) Both indicated that they were members of the homeowner’s association. Id. Both testified that they met with the Applicant and were satisfied with the accommodations to limit noise. They testified that they were in favor of the rezoning. (App. at pp. 95-96).

The lone objector, Mr. Yearby, spoke at length about his concerns about afterhours noise at the 71st Street entrance to the residential neighborhood, possible traffic issues, and additional burdens on the existing sewer system. (App. at pp. 97- [*5] 103). He presented exhibits demonstrating that in the past, when another business, “Performance Team,” opened in the neighborhood, code and police departments were frequently called to address noise and disruption affecting the tranquility of the neighborhood when trucks entered through the residential neighborhood. (App. at pp. 103-105).

In rebuttal, the Applicant clarified that this was a zoning change for .76 acres within an existing property the rest of which was already zoned light industrial. (App. at p. 107). To address concerns about noise, the Applicant proposed a covenant of restriction which would require closing access to the residential streets at 6:00 p.m. Further, landscaping buffering would be installed to reduce noise. Following the hearing, the CZAB recommended approving the rezoning application, with the restriction ensuring that access from Northwest 71 Street would close at 6:00 p.m., to preserve the tranquility of the residential area south of the subject property. (App. at pp. 44, 57-59). Mr. Yearby appealed the CZAB decision for de novo review before the BCC. (App. at p.46). A de novo hearing on Mr. Yearby’s appeal was heard by the BCC on September 24, 2020. (App. at p. 253). Resident Steven Blimbaum spoke in favor of the application because it would enable the neighborhood to get better tenants and keep a cleaner neighborhood. Resident Bobby Hicks, who owns multiple properties [*6] in the neighborhood, opposed the application because it would increase carbon, noise, dust, and lights, disrupting the peacefulness of the neighborhood. Mr. Yearby spoke for 20 minutes. (App. at p. 262) The crux of his argument was that the neighborhood residents who testified at the CZAB meetings were not, in fact, members of a homeowners’ association. (App. at p. 265). The Gladeview homeowner’s association “is not recognized by the state” because it has been inactive since 2015. Id. at p. 266. The residents’ testimony was therefore “fraud and criminal acts,” for which they were “complicit or co-conspirators in this organized scheme by these ladies to defraud the proceedings of both hearings.” Id. at p. 275. In response, the Applicant argued, “[w]hether or not Ms. Barr and the others that were there paid their dues in Tallahassee of the Gladeview homeowners association, they happen to be neighbors. That’s why they were there. They actually requested the meeting between the first meeting and the second meeting and felt comfortable enough to support the item.” Id. at pp. 295-296. The Applicant argued that the CZAB approval was based upon reports by every department recommending approval. Id. at 287. To address noise, the agreed covenant of restriction would limit the time that trucks may enter the entrance nearest to Mr. Yearby. Id. at 287. The rezoning would change only 11% of his property, the remainder of which was already zoned for light industrial. The rezoning would correct the mismatched fraction in order to “square out that parcel, so there could be [*7] a nicer property. So we could create jobs. So it could be something good for the neighborhood.” Id. at p. 288. The Applicant met with members of the community, which included Mr. Yearby. Id. at p. 293. The County zoning director testified about the need for the rezoning: Everything to the South [of 71st street] is residential. Years ago, again, before all of our time, there were several rezonings to industrial and this – on the north side. And this ended up leaving the old remnant RU-1s on the north side, which is actually – the residential use is actually encroaching into the industrial area rather than vice versa, which is unique.

So the land use of this subject application, again, from the Comp Plan perspective, is industrial. So we see this as really an adjustment to square off that property.

Id. at p. 304. The zoning director also pointed out that where the industrial abuts a residential area, it forces the property owner to put in a minimum of a 10-foot greenbelt and a masonry wall along that south property. Whenever you’re across from residential, industrial to residential, you need either an 8-foot or a 10-foot green buffer plus a masonry wall. In this case, the property is large enough that it would be a 10-foot wall.

Id. at p. 305. The BCC unanimously passed a motion to deny the appeal and retain the approval of the CZAB with the acceptance of a proffered covenant to restrict access to 71st street.

Mr. Yearby filed a notice of administrative appeal with this Court. Review of a quasi-judicial decision to approve rezoning is governed by the first-tier certiorari [*8] review standard. See Bd. of County Com’rs of Brevard County v. Snyder, 627 So. 2d 469, 475 (Fla. 1993). Analysis The BCC’s decision to retain the CZAB approval of the rezoning application is quasi-judicial in nature. This Court’s review is limited to determining (1) whether procedural due process was accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence. Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982); Metro. Dade Cty. v. Blumenthal, 675 So. 2d 598, 601 (Fla. 3d DCA 1995). Procedural Due Process Mr. Yearby argues that there was no procedural fairness in the rezoning process. In a quasi-judicial proceeding, basic considerations of fairness must be adhered to so that a party is not deprived of due process. See Jennings v. Dade Cty., 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991); Astore v. Fla. Real Estate Comm’n, 374 So. 2d 40 (Fla. 3d DCA 1979); City of Miami v. Jervis, 139 So. 2d 513, 515 (Fla. 3d DCA 1962). “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.” Miami-Dade Cty. v. City of Miami, 46 Fla. L. Weekly D19 (Fla. 3d DCA [*9] Dec. 23, 2020) (citing Jennings, 589 So. 2d at 1340); see also Carillon Cmty. Residential v. Seminole Cty., 45 So. 3d 7, 9 (Fla. 5th DCA 2010) (“The ‘core’ of due process is the right to notice and an opportunity to be heard.”). In addition, “[i]n 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.” Miami-Dade Cty, 46 Fla. L. Weekly D19 (citing Jennings, 589 So. 2d at 1340) (emphasis added). In his Initial Brief, Mr. Yearby does not argue that he was not given notice or an opportunity to be heard. In fact, since he appeared at the BCC hearing and spoke for over 20 minutes, and spoke at length at the CZAB hearing, he was clearly provided with notice and an opportunity to be heard. Instead of challenging the evidence in support of the rezoning application, he chose to spend his allotted time complaining that the neighborhood residents who spoke at the CZAB hearings in favor of rezoning were not, in fact, members of a homeowner’s association. Mr. Yearby’s decision to argue about the status of the homeowner’s association rather than challenging the evidence supporting the application does not amount to a denial of due process. See A & S Entm’t, LLC v. Fla. Dep’t of Revenue, 282 So. 3d 905, 909 (Fla. 3d DCA 2019) (“[W]here a government entity provides notice and a meaningful opportunity to be heard, satisfying the requirements of procedural due process, a defendant’s voluntary [*10] failure to meaningfully participate in those proceedings will not vitiate the protections accorded.”). Moreover, Mr. Yearby’s argument that perjury at the CZAB hearings tainted the proceedings does not constitute a deprivation of due process. Even in the context of a criminal trial, a witness’ knowing presentation of perjured testimony will only require a new trial if it is harmful. See Giglio v. U.S., 405 U.S. 150, 153–54 (1972) (knowing use of perjured testimony at trial deprives a criminal defendant of due process if the testimony is harmful). Whether or not the witnesses’ homeowner’s association was administratively dissolved was immaterial to the CZAB zoning decision and the BCC de novo review of the zoning application. The witnesses’ testimony at the CZAB hearing was relevant because they were affected neighbors, not because they were association members. We find that Mr. Yearby’s right to due process was not abridged. Competent Substantial Evidence In determining whether there was competent substantial evidence to support the BCC decision, our role is “to review the entire record for any competent, substantial evidence” supporting the determination, not to weigh and determine the competing evidence provided by the objecting party. See Miami-Dade County v. Publix Supermarkets, Inc., 305 So. 3d 668, 672 (Fla. 3d DCA 2020). The circuit court cannot reweigh the “pros and cons” of conflicting evidence. Dusseau v. Metro. [*11] Dade Cty. Bd. of Cty. Comm’rs, 794 So. 2d 1270, 1275-76 (Fla. 2001); see also Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (the circuit court may not reweigh the evidence or substitute its judgment for that of the lower tribunal). In other words, our job is to review the record for evidence supporting the decision below. Evidence weighing against the decision is irrelevant.

Indisputably, there was competent substantial evidence to support the BCC decision to reject the appeal. Every affected County department -- DERM, the Platting and Traffic Review section of the Department of Regulatory and Economic Resources, the Fire Department, the Water and Sewer Department, and the Department of Parks, Recreation and Open Spaces – opined that the rezoning should be granted and offered supporting memoranda. The staff report supported approval, in part, because the Comprehensive Development Master Plan (CDMP) Land Use Element Objective LU-4 “requires the County to reduce the number of land uses, which are inconsistent with the uses designated on the LUP map and interpretive text, or with the character of the surrounding community.” Rezoning would accomplish this objective. At the de novo hearing before the BCC, one resident spoke in favor of approval, one against.

To refute Mr. Yearby’s complaint that the CZAB proceedings were tainted by perjured testimony, the Applicant responded that it was immaterial whether the homeowner’s association was current or defunct. The point was that three affected [*12] residents of a neighboring community testified before the CZAB in favor of the rezoning application. To address concerns about noise and disruption, the Applicant met with residents, including Mr. Yearby and the testifying neighbors, to explain the plan to develop the property and efforts to curtail noise and disruption. The residents requested and received a restrictive covenant to close access to the residential entrance at 71st Street after 6:00 pm, again, to limit disruption in the neighborhood.

We find that there was competent substantial evidence to support the decision below.³ Because there was competent substantial evidence presented at the CZAB and BCC quasi-judicial hearings and because Mr. Yearby’s due process rights were not violated,4 we AFFIRM. TRAWICK, WALSH and SANTOVENIA, JJ., concur. COPIES FURNISED TO COUNSEL

OF RECORD AND TO ANY PARTY

4 Mr. Yearby does not appear to argue that there was a departure from the essential requirements of law. It appears that the CZAB and the BCC followed all applicable code provisions for consideration and approval of this rezoning application. [*13] Copies Furnished to: [email protected] [email protected]