SHANNON GALLAGHER

v.

THE TOWN OF SURFSIDE AND 9165 SURFSIDE LLC

On Petition for Writ of Certiorari from a decision of the Board of Commissioners of the Town of Surfside, Resolution No. 2022-2870.

Shannon Gallagher, pro se Petitioner. Laura K. Wendell, Esquire and Tony L. Recio, Esquire, Weiss Serota Helfman Cole & Bierman, P.L. for Respondent, Town of Surfside.

John K. Shubin, Esquire, Ian E. DeMello, Esquire and Katherine R. Maxwell, Esquire, Shubin & Bass, P.A., for Respondent, 9165 Surfside LLC. [*2] Before TRAWICK, SANTOVENIA, and ARECES, R., JJ.

SANTOVENIA, J.

This matter comes before this Court on a Petition for Writ of Certiorari (“Petition”) filed by Shannon Gallagher (“Petitioner”). The Petition requests that the Court quash Resolution No. 2022-2870, which embodies the decision of the Board of Commissioners of the Town of Surfside (“Surfside”) to approve with conditions a site plan application of Respondent, 9165 Surfside, LLC (“Applicant”). Background Petitioner represents that she resides at the Carlisle on the Ocean Condominium, immediately north of the proposed project at 9165 Collins Avenue (“Property”) in Surfside. On August⁶, 2021, Applicant submitted an application for a site plan approval (“Application”) for the Hillcrest Project (“Project”), a luxury residential apartment building at the Property. On January 14, 2022, Surfside’s Development Review Group (“DRG”) met and reviewed the Project. They recommended that the Applicant’s site plan package (“Site Plan package”) be submitted to [*3] the Surfside Commission (“Commission”) for approval, subject to the resolution of certain site plan elements. On January 27, 2022 and February 24, 2022, the Surfside Planning and Zoning Board (“Board”) met. During the second meeting, the Board heard from its professional staff, the Applicant, and members of the public. Town Planner Walter Keller submitted a memorandum to the Board recommending that Applicant’s Site Plan package be forwarded to the Surfside Commission for approval subject to certain conditions. At the conclusion of the hearing, the Board recommended that the Application be approved with staff conditions, along with an additional condition that the balcony architectural features not extend beyond the maximum allowed balcony encroachment. At the April 12, 2022 Commission meeting, the Commission heard from its professional staff, the Applicant, the Applicant’s experts and members of the public. In Resolution No. 2022-2870, the Commission approved the Site Plan.

[*4] Standard of Review This Court’s first-tier certiorari review standard consists of three essential inquiries, i.e., did Surfside: (i) afford procedural due process, (ii) observe the essential requirements of the law, and (iii) support its decision with competent, substantial evidence. See Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm’rs, 794 So. 2d 1270, 1274 (Fla. 2001) (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)). Standing As a threshold argument, the Applicant argues that the Petitioner lacks standing. To establish standing under Florida law, a party must show a specific injury, such as a direct impact on the party’s property or legal rights, and not just a “general interest” that is no greater than that of other residents. Renard v. Dade Cnty., 261 So. 2d 832, 837 (Fla. 1972). “Ordinarily, abutting homeowners have standing by virtue of their proximity to the proposed area of rezoning.” Save Calusa, Inc. v. Miami-Dade Cnty., 355 So. 3d 534, 540 (Fla. 3d DCA 2023) (emphasis added); see Paragon Grp., Inc. v. Hoeksema, 475 So. 2d 244, 246 (Fla. 2d DCA 1985), review denied, 486 So. 2d 597 (Fla. 1986) (holding owner of single-family home [*5] directly across from rezoned property had standing to challenge proposed rezoning); see also Elwyn v. City of Miami, 113 So. 2d 849, 851 (Fla. 3d DCA 1959) (“Plaintiffs as abutting home owners [sic] were entitled to maintain the suit challenging the propriety, authority for and validity of the ordinance granting the variance.”) (emphasis added). “Such proximity generally establishes that the homeowners have an interest greater than ‘the general interest in community good share[d] in common with all citizens.’ ” Save Calusa, supra., 355 So. 3d at 540 (citing Renard, 261 So. 2d at 837) (emphasis added).

At the January 27, 2022 Board meeting, Petitioner gave her address as 9195 Collins Ave., Unit 806 in Surfside. Petitioner also represents in the Amended Petition that she “lives at the Carlisle on the Ocean, immediately north of the Hillcrest Property. She has owned her condominium at the Carlisle for almost 20 years”. The record, however, reflects a different owner for her unit and that notice¹ was sent to the listed owner of Unit 806: Wilmington Trust Co Trs C/O Nationstar Mortgage LLC Structured Asset Sec. [*6] (“Wilmington Trust Co.”), with the mailing address of PO Box 619080, Dallas, TX 75261-9080. There is no record evidence that Petitioner is affiliated with the unit owner of record, Wilmington Trust Co. Moreover, Petitioner failed to delineate the nature of her interest in Unit 806 - if any - on the face of the administrative record below. See City of Ft. Myers v. Splitt, 988 So. 2d 28, 32-33 (Fla. 2d DCA 2008) (certiorari review is “strictly and solely” confined to “the record . . . on which the questioned order is based” and, therefore, a would be petitioner must establish the factual basis for his or her standing to appeal in the record of the zoning proceeding below). Thus, we find that the Petitioner lacks standing. However, even assuming arguendo that Petitioner had standing, she fails to meet any of the three prongs of the applicable standard of review. Procedural Due Process Generally, “[t]he two elements of procedural due process are notice and opportunity to be heard.” Cerda v. City of Coral Gables, 326 So. 3d 208, 208 (Fla. 3d DCA 2021) (citing Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2002)). [*7] Petitioner presents three arguments as to why procedural due process was not accorded. First, Petitioner argues that there was a failure to provide timely notice of the Commission hearing, and that neither she nor her neighbors received mailed or online notice. The record reflects otherwise. Notices were sent to property owners within 300 feet of the development. Moreover, a Notice of the public hearing of the April 12, 2022, Commission was published in the Miami Herald. Section 90-35(2)(a) of the Surfside Zoning Code provides: “[w]ritten courtesy notices shall be sent by first class mail to affected property owners within a radius of 300 feet.” (emphasis added). If Petitioner did not receive a courtesy notice of the hearing, it was likely because she is not the property owner of record of Unit 806 at the Carlisle where she claims she resides. As stated above, the record reflects that a mailed notice affidavit was sent certified mail to the owner of the unit, Wilmington Trust Co. Petitioner concedes that notice was posted online as an agenda item. She argues only that the Town should have posted the notice elsewhere on its website. Gallagher nevertheless had actual notice of the three hearings inasmuch as she appeared at the January 27, [*8] 2022 and February 24, 2022 public meetings of the PZB, as well as the Commission meeting on April 12, 2022. By appearing and participating in the zoning proceedings, Petitioner thereby waived her right to challenge them as improperly noticed. See Broward Cnty. v. Recupero, 908 So. 2d 520, 521 (Fla. 4th DCA 2005). The record also reflects that the Petitioner and other members of the public were afforded a fair opportunity to address the Board and Commission at each of the meetings held on January 27, February 24 and April 12, 2022. Petitioner’s second procedural due process argument contends that “Sunshine Law violations” occurred in that she was not provided with the survey of the Project in the application materials; the Town Manager’s memorandum to the Commission was not placed on the Town’s website until the day of the Hearing; and the DRG minutes were made available only as an attachment. Petitioner briefly mentions the “Sunshine Law”, but fails to challenge the Commission’s decision under §286.0112, Fla. Stat. 2 The Sunshine Law provides, in relevant part, that: All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in [*9] Instead, Gallagher invokes Chapter 119, Fla. Stat. which governs public records, not municipal meetings. Petitioner’s argument thus conflates public record requests with the Florida Government in the Sunshine Law’s requirements. Finally, Petitioner relies heavily on a public records request of her neighbor, which she has no standing to enforce. See, e.g., Eagleman v. Korzeniowski, 924 So. 2d 855 (Fla. 4th DCA 2006) (“for an issue to be preserved by a defendant for appeal in a case involving co-defendants, that defendant must object or that defendant must join in the objection of the other defendant”). On certiorari review the court lacks jurisdiction to entertain a “civil action”,3 which is the remedy for a municipality’s failure to furnish or make available for inspection public records upon request. Furthermore, we note that Petitioner’s request was for a set of plans the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings. §286.011(1), Fla. Stat. 3 See 119.11(4), Fla. Stat. (describing the “civil action”); Claudio v. Clerk of Circuit Court, Volusia County, 128 So. 3d 830, 831 (Fla. 5th DCA 2013) (“The statute contemplates a complaint, counterclaim or crossclaim.”) [*10] for the Project, and that while she did not initially receive the survey, she did receive the survey after she requested it in an email. Petitioner’s third argument is that “procedural due process was not comported as there are no factual findings included in the written determination”. Petitioner nowhere addresses, however, the actual written determination itself – the Resolution – which is a singlespaced, nine-page document that is a very detailed submission in all respects. The “Recitals and Findings of Fact” section incorporates all the preceding recitals, as well as five pages of conditions that follow it. Thus, the Commission’s written decision did include factual findings and therefore, complies with the law. We find no merit to Petitioner’s arguments. Thus, Petitioner was accorded due process. Essential requirements of law In Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (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 [*11] perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Id. at 527. (citation omitted). Petitioner presents four arguments in support of her position that the Commission failed to follow the essential requirements of law. First, Petitioner argues that the Site Plan does not comport with the Surfside Charter in that Surfside law requires the Project to be set back 30 feet at the east end of the property while the Project is only set back 20 feet. However, the rear setback of 30 feet is not measured from the bulkhead line, as Gallagher believes. Instead, it is measured from the rear lot line. See Code §90-2 (defining “setback” as “the minimum distance required by a zoning district that all structures shall be from the front, side and rear lot lines”). Here, because the Applicant owns the lands lying eastward of the bulkhead line to the erosion control line, it is from the erosion control line that the rear setback is measured. And, as the approved plans reflect, the structure is more than 30 feet from the erosion control line. Furthermore, Town Planner Keller explained in his February 15, 2022 memorandum to the Board that the setbacks met the requirements of Ordinance 21- 1716. [*12] Petitioner next posits that the Site Plan does not comply with relevant restrictions on rooftop development. Gallagher’s stated concern, that the increased height will block her light and view of the sky, is not cognizable as a property right under Florida law even for a property owner, which Petitioner is not. See Messet v. Cohen, 741 So. 2d 619, 620 (Fla. 5th DCA 1999) (“a landowner has no legally recognizable interest in an unobstructed view.”). Gallagher is simply incorrect in her assertions that the Code purportedly does not permit a pool or its elevation 5 feet above the roof deck, and that the deck purportedly exceeds the permissible 70% of roof area. As reflected in the Applicant’s expert report, the proposed rooftop deck complies with the requirement that it not exceed 70% of the aggregate roof area and is otherwise compliant with the requirement of 10-foot setbacks from the roofline on all sides. See ORA4 488-89. Otherwise, there is no prohibition against rooftop pools, and Gallagher cites none.

Petitioner’s third argument is that the Site Plan’s balcony projections violate Surfside Zoning Code §90-47.7. Section 90-47.7 provides that: “no more than 90 percent of a balcony’s footprint shall 4 “ORA” stands for Appendix to Respondent 9165 Surfside LLC’s Response to Petitioner’s First Amended Petition for Certiorari. [*13] overhang the balcony on a lower level.” Petitioner never preserved this argument below. In fact, this argument was made by her neighbor, Mr. Scarab, and not by the Petitioner. Ordinance No. 21- 1726 expressly provides allowances for balcony projections, and as staff concluded, “the use of the new setback option [Ordinance 21- 1726] allows the building design to provide large balconies on the east, south and west side while minimizing balconies to the north.” We agree with the Applicant that the Commission properly interpreted the Code to permit “ornamental features” to extend beyond the maximum allowable balcony projection.

Petitioner’s fourth argument is that the Project does not meet the pervious area5 requirements of the Surfside Code. As set forth in the chart at Code § 90-49, the pervious area requirement (20% in the H120 zoning district) is calculated based upon the “lot area.” Pursuant to the operative definitions, the computation of the amount of pervious area does not dictate where the pervious area must be located. The location of the pervious area can be situated anywhere 5 Pervious area is “[a]rea maintained in its natural condition, or covered by a material that permits infiltration or percolation of water directly into the ground.” Surfside Code § 90-2 (defining “pervious area”) (ORA.542). [*14] within the “lot,” including, as in this case, in the area between the bulkhead line and the erosion control line. Simply put, because the pervious area requirement is based on the size of the “lot,” and because, as defined above, the Owner’s “lot” includes the land it owns between the bulkhead line and the erosion control line (the easternmost boundary of the Property), the Applicant properly determined, based on the plain language of the Code, that Section 90-49 (setting forth the applicable “[l]ot standards”), required 7,561.49 square feet of its 37,807.30 square-foot “lot” to be pervious. (ORA.489; A190.) The Project contains more than this 20 percent minimum requirement. (ORA.489; A.190 (the Project contains 10,332.62 square feet of pervious area, equivalent to 25.6 percent of the lot).) Town Planner Keller testified before the Commission regarding the pervious area as follows: “[s]ubject to the Commission’s approval of the roof, and I believe the architectural treatment of the balconies. I believe this application meets all the code requirements. There’s been questions about pervious area and all this stuff. Those – Those [*15] are not issues. You know, there’s questions about the setbacks, those are not issues.” (App. 41: 24-28; 42:1).6 Substantial Competent Evidence “Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). “Competent, substantial evidence must be reasonable and logical.” Wiggins v. Fla. Dep’t of Highway Safety and Motor Vehicles, 209 So. 3d 1165, 1173 (Fla. 2017). Here, competent substantial evidence in the form of staff reports7 and the report of the Applicant’s experts supports the 7 The Staff Recommendation stated:

Staff finds the proposal complies with the Town’s Comprehensive Plan in that the developable portion of the parcel is west of the bulkhead line with a density lower than the maximum allowed and the portion of the parcel which is east of the bulkhead line is private recreation. Staff also finds that the proposal generally complies with the Zoning Code, the Town’s Zoning in Progress and with the intent of Ordinance 21-1716 although there are concerns which are noted on page 5 and in the comments section. [*16] Commission’s decision. See Village of Palmetto Bay v. Palmer 22 Trinity Private Sch., Inc., 128 So. 3d 19, 27 (Fla. 3d DCA 2012) (a staff report is competent substantial evidence where the staff made a complete review of all applicable review criteria); City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So. 2d 202, 204-05 (Fla. 3d DCA 2003) (confirming that the testimony of professional staff, when based on “professional experiences and personal observations, as well as [information contained in an] application, site plan, and traffic study” constitutes competent substantial evidence); Palm Beach Cnty. v. Allen Morris Co., 547 So. 2d 690, 694 (Fla. 4th DCA 1989) (confirming that professional staff reports analyzing a proposed use constituted competent substantial evidence); Metro. Dade Cnty. v. Fuller, 515 So. 2d 1312,1314 (Fla. 3d DCA 1987)(stating that staff recommendations constituted evidence); Dade Cnty. v. United Res., Inc., 374 So. 2d 1046, 1050 (Fla. 3d DCA 1979) (confirming that the recommendation of professional staff “is probative”). The Florida Supreme Court in Dusseau made clear that:

(App.106). [*17] The sole issue before the court on first-tier certiorari review is whether the agency’s decision is lawful. The court's task vis-a-vis the third prong of Vaillant is simple: The court must review the record to assess the evidentiary support for the agency's decision. Evidence contrary to the agency's decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the “pros and cons” of conflicting evidence. While contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. As long as the record contains competent substantial evidence to support the agency's decision, the decision is presumed lawful and the court's job is ended.

Dusseau, supra., 794 So. 2d at 1276. Having found that the decision below is supported by competent substantial evidence, our job is ended. Given our findings on the issues discussed above, we need not address Petitioner’s remaining arguments. As such, we DENY the Petition for Writ of Certiorari.

TRAWICK, J., CONCURS.

ARECES, R., J., concurring I join the Court’s Opinion on the issue of standing.

In Florida, “the well-established rule applicable to…certiorari proceedings is that the reviewing court’s consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based.” City of Ft. Myers v. [*18] Splitt, 988 So. 2d 28, 32 (Fla. 2d DCA 2008) (quoting Dade County v. Marca, S.A., 326 So. 2d 183, 184 (Fla. 1976)). “This rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court.” Id. at 33.

In this case, the record below fails to demonstrate that Petitioner has any “legally recognizable interest which is or will be affected by the action of the zoning authority in question.” Renard v. Dade County, 261 So. 2d 832, 873 (Fla. 1972). On the contrary, the record below lists Wilmington Trust Co. Trs. c/o Nationstar Mortgage LLC Structured Asset Sec. as the owner of the real property that Petitioner now purports to own. See Resp. Appx. at 452. This Court cannot base its standing determination on allegations raised for the first in the Petition. See Splitt, 988 So. 2d at 32 (a circuit court fails to apply the correct law when it determines standing “on the basis of the allegations…in [the] certiorari petition rather than on the basis of the record made in the proceedings before the City.”).

Accordingly, I join the majority’s decision as it pertains to Petitioner’s lack of standing but do not reach the merits of the case.

COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

[*19] NOT REPRESENTED BY COUNSEL.

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

6 “App.” stands for Appendix to Petition, (filed by Petitioner).