YACHT CLUB BY LUXCOM, LLC

v.

VILLAGE OF PALMETTO BAY COUNCIL

Third District Court of Appeal

State of Florida

Opinion filed March 10, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1950 Lower Tribunal No. 19-265-AP, Ordinance No.: 2019-18

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Yacht Club by Luxcom, LLC,

Petitioner,

vs.

Village of Palmetto Bay Council, et al.,

Respondents.

On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Appellate Division, Daryl E. Trawick, Lisa S. Walsh, and Maria de Jesus Santovenia, Judges. Moskowitz, Mandell, Salim & Simowitz, P.A., and Todd A. Armbruster, Michael W. Moskowitz and Scott M. Zaslav (Fort Lauderdale), for petitioner. Lehtinen Schultz, PLLC, and Dexter Lehtinen and Claudio Riedi, for respondents. Before HENDON, GORDO and BOKOR, JJ. BOKOR, J.

Petitioner Yacht Club by Luxcom, LLC, seeks second-tier certiorari

review of the circuit court appellate division’s order denying the petition for

certiorari brought against the Village of Palmetto Bay Council and the Village

of Palmetto Bay. The underlying petition alleges a departure from the

essential requirements of law and a violation of due process based on the

Village Council’s approval of Ordinance No. 2019-18, which amended the

zoning designation of the property at issue. Because the circuit court

afforded procedural due process and applied the correct law, we deny the

petition.

Petitioner argues that the circuit court departed from the essential

requirements of the law by failing to apply the correct legal standard in

determining that the challenged zoning ordinance does not constitute

impermissible reverse spot zoning.¹ Petitioner also argues that we should

give no deference to the circuit court because of the important interests being

adjudicated pertaining to property rights. While we do not discount the

import of the issues raised, this proposed standard of review fails to

recognize clear limits in reviewing an issue on second-tier certiorari.

Specifically, we do not substitute our judgment for the reviewing court so

long as the reviewing court applied the correct legal standard.

Notwithstanding the issue raised, “second-tier certiorari should not be used

simply to grant a second appeal; rather, it should be reserved for those

situations when there has been a violation of a clearly established principle

of law resulting in a miscarriage of justice.” Nader v. Fla. Dep’t of Highway

Safety & Motor Vehicles, 87 So. 3d 712, 717 (Fla. 2012).

Accordingly, we look to determine whether there has been any such

violation of the applicable legal standard. Based on our review, we

determine that the circuit court applied the correct legal standard to its

review.² The circuit court analyzed the zoning decision on a substantial

competent evidence standard. Next, in applying such a standard, the circuit

court found substantial competent evidence to support the zoning

determination of the Village Council. For example, the circuit court noted that

“[t]he record shows that Luxcom’s own undeveloped 10 acres located

immediately west of the Property had the same E-1 zoning designation as

the Property at issue.” The fact that there is competing evidence in the

record, a point acknowledged by the circuit court, does not change our

analysis under a substantial competent evidence standard.

Petitioner argues that the circuit court violated clearly established law

as provided by this Court in Palmer Trinity Private School, Inc. v. Village of

Palmetto Bay, 31 So. 3d 260 (Fla. 3d DCA 2010). In Palmer Trinity, this

Court explained that the Village’s actions constituted impermissible spot

zoning, and the circuit court departed from the essential requirements of the

law, where “[t]he record establishe[d] that Palmer Trinity [was] not

afforded the same beneficial use and restrictions for Parcel B that [were]

enjoyed by the owners of the surrounding properties.” Id. at 262 (emphasis

added). In Palmer Trinity, the pertinent analysis examined whether the

Village’s refusal to grant the zoning change was appropriate since it resulted

in Palmer Trinity being treated differently from its neighbors. Id. at 262-63.

This court found “no record justification for [the Village’s] refusal to rezone

the property to a classification consistent with the properties surrounding [it]”

thereby rendering the underlying decision of the Village Council “[a]s a

matter of law…arbitrary, discriminatory, [and] unreasonable.” Id. at 263.

Unlike Palmer Trinity, nothing in the record shows that the Village sought to

treat the Petitioner differently because of the proposed use of the property.

Instead, as explained above and in detail in the circuit court opinion, the

circuit court held, based on record evidence, that the determination of the

proper zoning designation was at least “fairly debatable,” that there was no

disparate treatment, and that substantial competent evidence supported the

zoning determination made by the Village Council.³

Petition denied.

The factual underpinnings of a zoning decision are reviewed under the substantial competent evidence standard. A zoning decision will survive where the findings made by the zoning authority are “fairly debatable” based on the evidence presented, requiring reversal only where “arbitrary, discriminatory, or unreasonable.” Snyder, 627 So. 2d at 476. The circuit court correctly noted that there was competent evidence to support the “fairly debatable” conclusions of the Village Council here.