BEACH LEGAL PROPERTIES, INC

v.

CITY OF MIAMI BEACH

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

[*2] Page 2 of 12

PER CURIAM

Petitioner, Beach Legal Properties, Inc. (“Petitioner”) filed a Petition for Writ of Certiorari to quash Resolution No. 2021-31654, which was adopted by the City of Miami Beach (“City”) Commission (“Commission”) on March 17, 2021. Background The one-story property is located at 301-317 71st Street, Miami Beach (“Property”), constructed in approximately 1952. An 81-ton, 55-foot-high cornet tripod pole weighing 162,000 pounds (the “Pylon”) sits on the roof of the Property. The Pylon was originally constructed in 1966, 14 years after the building was constructed, to display onsite advertising of former Property occupant Financial Federal Savings. Petitioner owns the Pylon and the Property. On October¹, 2018, Petitioner applied to demolish the Pylon. Petitioner was subsequently informed by the City’s Design Review Board (“DRB”)¹ that DRB approval would be required before demolition. The DRB admitted that it did not have any “legal jurisdiction to deny removal of the [Pylon.]” (App. 164)2 However, the DRB took the position that it could effectively deny removal unless Petitioner proposed some undefined replacement for the Pylon which would then be reviewed pursuant to 19 Design 2 “App.” stands for Petitioner’s Appendix. [*3] Page³ of 12 Review Criteria. On July⁷, 2020, the DRB held a public hearing on Petitioner’s demolition application. The DRB analyzed the demolition application pursuant to the 19 Design Review Criteria, notwithstanding that the application was for demolition of the Pylon only, did not include a proposed replacement for the Pylon, and did not include the proposed demolition of any building feature. The DRB found that criteria 1-7, 10 and 15 were not satisfied, and remaining criteria⁸, 9, 11, 13, 14 and 16-19 were inapplicable. The DRB recommended denial of the demolition permit “without prejudice” upon the condition that Petitioner re-file the application later “when a replacement option for the [Pylon] has been identified.” Ultimately, the DRB issued a final decision (“DRB Order”) that denied the demolition permit until a satisfactory replacement proposal for the Pylon was submitted. On March 17, 2021, the Commission held a hearing on Petitioner’s appeal of the DRB Order. Petitioner’s counsel and the City Attorney’s Office appeared and addressed the Commission. The Commission affirmed the DRB Order denying demolition of the Pylon, absent submission of a plan for the Pylon’s replacement. Petitioner timely filed this Petition on April 26, 2021. Standard of Review In first-tier certiorari review, the circuit court must determine “(1) whether procedural due process is accorded, (2) whether the essential requirements of the law [*4] Page 4 of 12 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) (quoting Broward County v. GB. V. Internat’l, Ltd, 787 So. 2d 838 (Fla. 2001) (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)). Petitioner argues that procedural due process was not accorded pursuant to the Code of the City of Miami Beach’s (“City Code”) quasi-judicial procedures,³ the Resolution violates the essential requirements of the City Code, and the Resolution is unsupported by the record evidence. Analysis Essential Requirements of Law In Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995), the Supreme Court held that “applied the correct law” is synonymous with “observing the essential requirements of law.” Further, to warrant relief, there must be “an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Id. (citation omitted).

[*5] Page 5 of 12 Section 118-252(a)(1) of the City Code sets out the City’s procedure for reviewing demolition permits: “All building permits for new construction, public interior areas, interior areas that face a street or sidewalk, demolitions and wrecking, alterations, or additions to existing buildings, … shall be subject to review under the design review procedures …” In addition, three sections of the City Code are specifically applicable to pole signs: Article IX. Nonconformances, Section 138(5)(j) states that “pole signs and roof signs are not permitted, except for pole signs which are associated with filling stations as provided in section 138-56. Legal nonconforming roof and pole signs may be repaired only as provided in section 138-55.” (emphasis added). Section 138(55)(a)(3) states that “existing nonconforming roof signs and pole signs shall be removed if ownership or use of the advertised building or business changes, except as otherwise provided herein.” Section 118-390(a) provides: Nothing contained in this article shall be deemed or construed to prohibit the continuation of a legally established nonconforming use, structure, or occupancy, as those terms are defined in section 114.-1. The intent of this section is to encourage nonconformities to ultimately be brought into compliance with current regulations. This section shall govern in the event of conflicts with other regulations of this Code pertaining [*6] Page⁶ of 12 to legally established nonconforming uses, structures, and occupancies.

(emphasis added.) Although the Pylon was lawful when built, the City Code was amended to prohibit pole signs. See Section 138(5)(j) (“pole signs and roof signs are not permitted, except for pole signs which are associated with filling stations…”). While it is undisputed that the Pylon was built years after the building on whose roof it stands to hold signage for the bank and has served no other purpose, the City argues that “the Pylon has not held a sign in more than four decades4 and, in the absence of any signage, is treated as an architectural feature rather than a “sign,” and not subject to mandatory removal under Chapter 138 of the City Code.” Response Brief at p.9. The City argues that: (a) removal of advertising signage from the Pylon pole structure transformed it into a different and undescribed type of structure that was not a sign, or (b) that with the passage of time, the Pylon had “evolved” from a pole sign into an architectural feature of the building so that demolition could be conditioned on a replacement.5 The City’s argument that 4 Oddly, this contention amounts to the conclusion that a four-decades-old illegality somehow becomes legal and an architectural feature of the building although it was not designed as part of the building when the building was constructed. 5 Adding to its illegality, the Resolution purports to place a condition on a denial, when the Code allows conditions only on approvals. See City Code Section 118-264, Design review approval conditions and safeguards: In granting design review approval, the design review board may prescribe appropriate conditions and safeguards either as part of a written order or on approved plans. Violation of such conditions [*7] Page⁷ of 12 somehow over time the pole sign transforms into another structure is meritless. Petitioner correctly argues that the City cannot arbitrarily change a pole sign into something else. After the demolition permit application was reviewed solely before the DRB and on a review limited to the Design Review Criteria in section 118-251 of the City Code, the City argues that the City Commission was not required to evaluate the DRB’s decision under the City Code’s pole sign rules because the Pylon is not a pole sign. Curiously, the City contends that “whether a sign is a sign is an administrative determination for the Planning Department to make, not the DRB.” Response Brief at 10. However, the City points to no request for such a determination ever having been submitted to, or a determination having been made by, the Planning Department, notwithstanding that the propriety of the City’s failure to apply the pole sign provisions of the City Code rests entirely on the assumption that the Pylon is not a pole sign.⁶ We are not persuaded by the City’s argument that the Pylon is not and safeguards, when made a part of the terms under which the design review approval is granted, shall be deemed a violation of these land development regulations.

The applicant shall obtain a design review application from the planning department, which shall be responsible for the overall coordination and administration of the design review process. When the application is complete, the planning department shall place the application on the agenda and prepare a recommendation to the design review board… (emphasis added).

[*8] Page⁸ of 12 a pole sign. See generally Villamorey, S.A. v. BDT Invs., Inc., 245 So. 3d 909, 911 (Fla. 3d DCA 2018) (“This well-known abductive reasoning test [the “Duck Test”] posits: ‘If it looks like a duck, and quacks like a duck, then it is a duck.”); Githler v. Grande, 289 So. 3d 533, 539 (Fla. 2d DCA 2019) (“[I]f it looks like a duck and quacks like a duck, we don't have to ask if it's a pig”)(interpreting whether a stock was included within the statutory definition of a security). The City also argues that “there is no explicit prohibition on maintaining a legally established nonconforming structure.” Response Brief at p. 23. A legal nonconforming structure is one that was lawfully established under the zoning regulations, but no longer complies because the zoning regulations were amended after its establishment. See Section 118-390, City Code. Section 118-390(a) provides that “[n]othing contained in this article shall be deemed or construed to prohibit the continuation of a legally established nonconforming use, structure, or occupancy, as those terms are defined in section 114.-1…” (emphasis added). Thus, even after pole signs were prohibited by the City Code, the Pylon could have continued as a legal nonconforming use to advertise Financial Federal Savings’ business if the bank had continued to own the Property.⁷ However, upon the bank’s sale of the Property, [*9] Page 9 of 12 the Pylon would have been required to be removed in any event. See Section 138(55)(a)(3) (“existing nonconforming roof signs and pole signs shall be removed if ownership or use of the advertised building or business changes….”) (emphasis added). Yet the City fails to explain how the Pylon would have continued as a legal nonconforming use after the bank’s sale of the Property even if a legal nonconforming use had ever been established. Were the Pylon shaped like a flagpole, the City would not be arguing that demolition is contingent on provision of a replacement structure, nor would the demolition permit have been reviewed based on design criteria applied to a replacement structure. However, the shape or design of the Pylon does not change the applicable analysis, law or conclusion. The requirement in Section 138(55)(a)(3) that “existing nonconforming roof signs and pole signs shall be removed if ownership or use of the advertised building or business changes...” focuses solely on ownership or use of the business, and not on the design of the pole or sign. Notably, this provision does not specifically exempt from its application illegal pole signs that have existed long enough to become “iconic,” that are popular or favored by community residents, or that were designed in an architecturally significant [*10] Page 10 of 12 style.⁸ Nor can we add any such provision to the City Code9 in contravention of the clear meaning of the pole sign provisions. See Carroll v. City of Miami Beach, 198 So. 2d 643, 645 (Fla. 3d DCA 1967)(“[t]he City is bound by the express terms of its own ordinance…If the City desires a different meaning for its ordinance in the future, it may amend, modify or change the same by legislative process.”). Moreover, the City’s contention would render meaningless the requirement for removal of the Pylon in section 138-55(a)(3) of the Code. See Sch. Bd. of Palm Beach County v. Survivors Charter Sch., Inc.,³ So. 3d 1220, 1233 (Fla. 2009) (“Basic to our examination of statutes, ... is the elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.”). The City's counsel expressly acknowledged that “the DRB does not have any legal jurisdiction to deny the removal of the [Pylon] structure."10 Yet the City’s 9 Whether amendments to the City Code are appropriate or necessary in order to preserve and retain architecturally significant structures that have not been designated historic is for the City Commission to address. 10 The City, while acknowledging in its Response Brief that “the DRB does not have any legal jurisdiction to deny the removal of the structure” takes the position that “the DRB does have jurisdiction to review, and require, some form of iconic replacement for the Pylon that satisfies the Design Review Criteria”. Response Brief at p. 6. [*11] Page 11 of 12 review process of the demolition permit application - which characterized the application as one for exterior alterations to the building - allowed the City to avoid this admitted fact. In doing so, the City applied the incorrect law. Section 118-251 of the City Code, Design review criteria, “encompasses the examination of architectural drawings for consistency with the criteria stated below, with regard to the aesthetics, appearances, safety, and function of any new or existing structure and physical attributes of the project in relation to the site, adjacent structures and surrounding community…” It makes sense that that provision vests the DRB with the authority to examine architectural drawings based on design review criteria if a new structure is being proposed or demolition would significantly alter the design of a building. However, removal of the Pylon attached to the roof of the building as proposed involved solely the demolition of a pole sign on the building roof, and did not include alteration to the exterior design or architecture of the Property. Here, there can be no legal replacement for the Pylon as the current regulations in the City Code prohibit pole signs, period. See Article IX. Nonconformances, Section 138(5)(j) (“pole signs and roof signs are not permitted, except for pole signs which are associated with filling stations…”). Moreover, the stated intent of section 118-390(a) of the City Code is to encourage nonconformities ultimately to be brought into compliance with current regulations, not to replace and thereby continue nonconformities. [*12] Page 12 of 12 The City failed to apply the pole sign provisions of the City Code to the application for demolition of the Pylon. This was error. See Alvey v. City of North Miami Beach, 206 So. 3d 67 (Fla. 3d DCA 2016) (failure to consider and apply essential provisions of the city code departs from the essential requirements of law). Competent substantial evidence Having concluded that the City failed to follow the essential requirements of law in applying an incorrect analysis, “flawed” and “erroneous” staff recommendations are “invalid” and “d[o] not constitute competent evidence.” See First Baptist Church v. Miami-Dade Cty., 768 So. 2d 1114, 1116 (Fla. 3d DCA 2000). Accordingly, the Resolution is also not supported by competent substantial evidence. For the foregoing reasons, the Petition for Writ of Certiorari is GRANTED. The Resolution is quashed and the decision of the DRB is reversed.

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

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

[*13] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]