IN THE CIRCUIT COURT OF THE. ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA APPELLATE DIVISION CASE No. 14-492-AP Resolution/File 13-01030iia JACOB PFEFFER, etal., Petitioners, v. CITY OF MIAMI, FLORIDA, a political subdivision of the State of Florida, and WAL-MART STORES EAST, LP, a Delaware LP, Respondents. REPLY TO RESPONSES TO PETITION FOR WRIT OF CERTIORARI Petitioners, Jacob Pfeffer, Catalina Gutierrez, Monika Pobog-Malinowska, Vintage Liquor and Wine Bar II, Rosi Barrios, Blo Dry Bar Florida, LLC N/K/A Head Kandi, LLC, Sandirose Madger, Yasmine Garate, Anthony Davide, David Le Batard and Lebo Studios (“Petitioners”) reply to the response briefs filed with this Court by Respondents City of Miami (the “City”) and Wal-Mart Stores East (“Wal-Mart”). SAVAGE ~ LEGALCASE No. 14-492 AP INTRODUCTION The governing City Code goes to great lengths to set out distinct procedural tracts for non-variance applications that can be administratively approved (Class II Special Permit) under Chapter 13, versus variance-containing applications (Major Use Special Permit or MUSP) under Chapter 17. The Petitioners appealed at each juncture by arguing not only that a variance was present, but, more importantly and emphatically, that the presence of the variance had a procedural and substantive legal impact, to-wit: the presence of the variance required different action by professional staff, different standards for approval, and most critically of all, public hearings as of right, instead of by appeal with all evidentiary and legal burdens on Petitioners. The Respondents, stinging from this Court’s quashal, sought to save face by treating the Opinion of the Court as having the least meaning and impact as possible. With a red pencil, they changed a loading berth to a “staging area,” quickly scheduled a re-hearing before the City Commission, and that was that. Respondents put much faith in the de novo standard of review applicable to the proceeding below, framed procedurally as an appeal from the Planning, Zoning and Appeals Board (PZAB) to the City Commission. This faith is misplaced, however, because while “de novo” is the lowest standard of review, (which by definition means that no deference must be afforded to the tribunal below), the SAVAGE? LEGALCASE No. 14-492 AP applicable standard of review (however low) does not change the role of the appellate body or the nature of the proceeding: it was an appeal and not an original proceeding (such that a new application or kind of application could be entertained with one hearing before the Commission, and thereby nullifying the entire Code-based process governing Class II Special Permit processing). While new evidence may be presented in a de novo proceeding, all the evidence in the world could not change the following two points of facts and law: (1) the application throughout the proceedings had contained a variance (as this Court held); and (2) the application and all of the proceedings in connection with it had been handled under the non-variance process. The City Commission departed from the essential requirements of law when it refused again to enforce its own procedures as they have been published to the citizenry. Put another way, if the Court ignores for a moment the entire previous appellate case and quashal that creates the present procedural posture, and imagines that this case is coming before it now for the first time, this Petition would be equally valid for pointing out that the City allowed a Class II Special Permit with a variance to travel all the way up through the non-variance process, identified a variance at the very end, and merely removed it, thus blessing all of the prior illegality. SAVAGE LEGALCASE No. 14-492 AP L Standard of Review. The three-prong standard applicable to a petition, such as this one, is well- established. The Respondents, however, would have the Court believe that a kind of “super error” is required to constitute a departure from the essential requirements of the law. But this Court, construing this Code, and reviewing this Commission, approving this kind of permit, has made clear that: The City is bound by the procedural requirements imposed by the code and cannot renege on its promise to its citizens to uphold the code. Failure of an agency to adhere to its own regulations constitutes a departure from the essential requirements of the law. As such, the ruling of the City Commission fails to observe the essential requirements of the law, the second prong of first tier appellate review. Dougherty v. City of Miami, 13 Fla. L. Weekly Supp. 959a (Fla. 11" Cir. Ct. July 14, 2006), cert. denied, 944 So. 2d 370 (Fla. 34 DCA 2006) (emphasis added; citations omitted). This undisputable canon of Florida local government law was quoted and recited and re-emphasized in this Court’s Pfeffer I decision, now published at Pfeffer v. City of Miami, 22 Fla. L. Weekly Supp. 424b (Fla. 11th Cir. October 15, 2014). After all of their poorly-aimed crowing about the “law of the case,” both Respondents try and point this Court to 1980’s era criminal cases about “miscarrage of justice” for the standard of review. City Response at 9; Wal-Mart savace4 LEGALCASE No. 14-492 AP Response at 10. This is apparently an extension of their practice of trumpeting rulings in their favor while stubbornly “shaking off” rulings adverse to their cause. The governing standard in this case (that goes to the heart of City procedures) is best put by this Court’s renewed recognition of Florida law that has long mandated strict adherence to codified municipal regulations and procedures. See Pfeffer I at 4, and the cases collected therein. I. Argument. The Petitioners will next address each of the five arguments advanced by Petitioners in the Amended Petition, and the Respondents’ counter arguments, in turn. (1) Quashal is the only remedy on certiorari, placing the case, parties and proceedings back in their original posture such that the Commission departed from the essential requirements of the law when it again denied the appeal. The Petitioners pointed out with citation to Broward County v. G.B.V. Int'l Ltd., 787 So. 2d 838, 844 at fn. 18 (Fla. 2001), that: “When the order is quashed, as it was in this case, it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made...” G.B.V. at 844 (quoting Tamiami Trail Tours v. Railroad Commission, 174 So. 451, 454 (1937). Faced with this Court’s SAVAGES LEGALCASE No. 14-492 AP Opinion holding that the Class II Special Permit did in fact contain an unlawful variance, the City inexplicably ruled the exact same incorrect way it did previously and denied the appeal. (cf, A:8 with A:9). The part of the written text of the Resolution of the City Commission “denying the appeal” was the same in both Pfeffer I and in this case. The Petitioners’ appeal from the PZAB was not granted in part and denied in part. It was, unlawfully and somewhat arrogantly, denied just the same in both proceedings. Petition at 24. Neither the City nor Wal-Mart answer these citations or this argument. (2) The City Commission misapplied the concept of “law of the case” by refusing to follow this Court’s Opinion. The City Commission used a tortured understanding of “law of the case” as an excuse to rule the exact same way it did last time. The Petitioners point out that: “The law of this case is that the Class II Special Permit application had an unlawful variance, thus destroying its status as a Class II Special Permit, and nullifying those proceedings in its name while it was masquerading as a lawful instrument.” Petition at 26. The Respondents do not answer this argument. (3) The variance and non-variance processes are entirely different, especially the legal burdens, standards and nature of the public hearings. The Petition points out that had the variance been correctly identified in the beginning, then proceedings before PZAB and City Commission would have occurred as of SAVAGES LEGALCASE No. 14-492 AP right under the Code, as opposed to what happened here, with the Petitioners bearing all burden to initiate the proceedings as appellants. Petition at 28. Wal- Mart and the City do not answer this argument. (4) The variance and non-variance procedures are entirely distinct and may not be combined in a hybrid manner. The Petitioners noted that the procedural tracts are substantively and procedurally distinct, and cannot be combined. Petition at 29. This is where the City brings forward its single argument: “The Code contemplates that a Class II Special Permit may be approved, even when the application as originally received did not comply with all of the requirements under the Code for issuance of such a permit.” City Response at 13. The City points to the Director's power to “approve, approve with conditions, or deny” applications, as well as the City Commission’s authority to “modify, in whole or in part, with or without conditions.” City Response at 13-14. As the Petitioners argued in Pfeffer J, the City correctly points out, and this Court ruled, Section 1305 and Ordinance 11000 applies and governs these proceedings. City Response at 13.' But the general powers to modify and add ‘Wal-Mart burns down another poor straw man by feverishly asserting that Section 1305 is law of the case and cannot now be disavowed by Petitioners (even though Petitioners argued for its application in Pfeffer I and prevailed). Wal-Mart Response at 14. This is as far afield from relevant argument as their inexplicable argument to the City Commission that Petitioners sought to have SavacE! LeGaLCASE No. 14-492 AP conditions to an otherwise legal development approval cannot possibly overcome the Code’s express statement that: “A variance is not a special permit.” §1901, City of Miami Zoning Code (11000). As the Code makes clear, a Class IT Special Permit cannot exist with a variance. §627.2.3 (governing Code for this Special District and requiring Section 1305 for non-variance Class II Special Permits and requiring all variances to be processed under Article 17 (MUSP)). The Director’s and the City’s powers under Section 1305 to make “modifications” or add “conditions” to an otherwise lawful permit cannot overcome the clearly distinct procedural tracts set out in the Code for variance, and non-variance, particularly when combined with an Appellate Court Mandate that the Class II Special Permit - - since day one ~- contained a variance. When presented with the black-and-white code provisions and this Court’s Decision, the thin reed of minor “modifications” and “conditions” upon which the City stands quickly snaps. The City then parrots all of the cases that require strict adherence to City Code procedures, in support of Petitioners, and offers no contrary case authority. City Response at 15-16. Even agreeing with all of the City’s arguments, the City Commission did not “grant” the appeal from the PZAB (by recognizing the true law of the case that the the City Commission “reverse” this Court. Amended Petition at 16-17, Attachment B Transcript at 23-24. Savace® LecaLCASE No. 14-492 AP application did have a variance) with “conditions.” The City Commission instead repeated its prior unlawful act and “denied” the appeal from the PZAB again, as if this Court’s Opinion had not issued. (5) The non-variance tract under Article 13 (Class II Special Permit), and the variance tract under Article 17 (Major Use Special Permit), are entirely different, and the Commission should have reversed the PZAB upon remand. The City does not directly answer this argument. Wal-Mart brings to the Court two decisions they claim are dispositive: Hernandez-Canton v. Miami City Commission, 971 So. 2d 829, 831 (Fla. 3d DCA 2007) and Dougherty v. City of Miami, 3 So. 2d 156 (Fla. 34 DCA 2009). Both decisions support Petitioner's positions. In Hernandez-Canton, the Third District untangled a “pipeline” issue, where Section 1305 had been amended during the pendency of City and appellate proceedings. /d. at 831. The Third District picked the newer version of Section 1305, quashed an Appellate Division ruling and remanded for “proceedings consistent” with its holding. Jd. The City, adopting the same stubborn ostrich position in 2006 that it does today, took the approach that the Third District had not invalidated their 2004 resolution. Jd. The Third District clarified that they had in fact nullified the City’s 2004 resolution, and that the City needed to make findings under Section 1305 according to the new version, as the Court previously SAVAGE2 LEGALCase No. 14-492 AP ruled. Id? The Court directed the parties on remand to re-open the proceedings and present evidence going to the Section 1305 factors. Wal-Mart (and the City by adoption) argue that this case compels the result they seek. Wal-Mart brief at 18. But in Pfeffer I this Court did not remand with the kind of instructions set out in Hernandez-Canton to hold an evidentiary hearing on a single issue. This Court, to the contrary, made a /ega/ ruling, that the subject application did contain a variance, just as the Petitioners have argued since February, 2013, and for the City to have proceedings consistent therewith. The Court’s Mandate, however, was met with an effort to give it as short shrift as possible. The City Commission’s act of denying the Petitioner’s appellate argument about the variance is hardly consistent with this Court’s ruling, and in fact flouts it. The fact that there was a remand in a reported zoning case does not help the Respondents. While it is closer to the subject matter than their standard of review cases from the criminal law, it actually helps Petitioners. How? Judge Cope noted at the end of the decision that certiorari lies, as it does in this case, when “there has been a departure from the terms of the appellate court ruling in the 2 The Court held that eight minutes per side was far too short to allow the parties to go through twenty-five Code factors, and that the objectors in that case could not raise a facial constitutional challenge to the City Code. Id. at 832. savace!OLecaLCASE No. 14-492 AP proceedings on remand.” /d. The Respondents nullified the remand by ignoring the legal consequence of this Court’s ruling that a variance infected the application. The Respondents next bring Dougherty v. City of Miami, 3 So. 2d 156 (Fla. 3d DCA 2009), and notably, rely not upon the decision in chief, but the concurrence. Wal-Mart Response at 19. The holding by Judge Ramirez, however, compels the relief sought by Petitioners. The procedural history packed into this brief decision can be confusing but is important: (a) PZAB grants Class IT; (b) appeal to Commission that denies Class II; (c) Circuit Court, Appellate Division quashed Commission resolution; (d) Third District denied certiorari but remanded for proceedings; (e) upon remand Commission denies appeal and grants permit. Dougherty, at 157. With this procedural background, the Third District held that the City Commission did not follow the law of the case as set down by the earlier Circuit Court, Appellate Division. Jd. Having suffered the Respondents’ tortured misapplication of the “law of the case” doctrine before the Commission and now before this Court, the Petitioners welcome the Third District’s enunciation: “The law of the case mandates that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent proceedings.” Id. (citations and internal quotations omitted; emphasis added). Similarly, this Court ruled as a matter of law that the subject application savacel! LecaLCASE No. 14-492 AP contained a variance from day one, and consequently during years’ worth of proceedings and appeals in this matter. Instead of reversing course over that time, the Respondents stubbornly pressed on in their denial of the variance, arguing in sharp opposition to Petitioners at each procedural turn. The law of this case as set down by this Court required the Commission to grant the appeal from the PZAB and rule that the PZAB was wrong to rule that no variance was present, no matter what the standard of appellate review, whether abuse of discretion, miscarriage of justice, or de novo. The use of “de novo” connotes the standard of review, period. The standard of review cannot change an appeal to an original action. As this Court recognized in Pfeffer I, only the Director possesses jurisdiction to process Class II Special Permit applications, and to do so according to the procedural processes imposed by the Code. Wal-Mart’s counsel appears to strain their Westlaw account running down myriad far-flung authorities in the various areas of practice to refute the analogies of nullified proceedings posited by Petitioners. Wal-Mart Response at 21-25. They were merely general illustrations to aid in communicating the Petitioners’ position, and the Petitioners do not need them, in any event. The text of the City Code’s procedures, the unbroken line of cases mandating strict adherence to municipal procedures, this Court’s Mandate in this Case, and the reported savace!? LecaLCASE No. 14-492 AP decisional law pertaining to this very municipality and species of permit, all compel the City Commission to recognize the true law of this case: the application contained a variance on the first day, and important legal consequences flow from that determination under the City’s Code. Merely changing the name on the plans from “loading berth” to “staging area” at this stage ignores those legal consequences, not to mention cheapens this Court’s holding and ignores the true law of this case. Variances are obtained under one of the highest factual and legal hardship standards in all of Florida law. For this reason, developers are loathe to identify and apply for them. If the result urged by Respondents is permitted here, then development approval applicants, such as the Respondents, will be incentivized and indeed rewarded for burying their variances in their applications, leaving it to the affected persons and interested parties to challenge and litigate all the way up through the Boards, City Commission and Courts, ultimately obtain a ruling that an unlawful variance was present as a matter of fact and in law, and then all that needs to be done once the hand is caught in the cookie jar is just remove the offending variance and otherwise the project remains approved. This untenable result urged by the Respondents cheats the procedural process imposed by the Code, not to mention the citizenry who are entitled to the Code as published. savacel3 LecaLCase No. 14-492 AP CONCLUSION Based upon the foregoing reasons and legal authority, certiorari is both necessary and justified to quash the City’s denial of the appeal of the Class II Special Permit. Respectfully submitted, Paul C. Savage, Esq. Florida Bar No. 088587 The Law Offices of Paul C. Savage, P.A. 100 Almeria Avenue Suite 220 Coral Gables, Florida 33134 Telephone: (305) 444-7188 Facsimile: (305) 444-7186 By: Paul Savage savacel4 LecaLCase No. 14-492 AP CERTIFICATE OF SERVICE I certify that a copy of this Reply to Responses to Petition for Writ of Certiorari was served by email on February 19, 2015 to: Assistant City Attorney, John A. Greco, Esq., 44 S.W. 2™ Avenue, Suite 945, Miami, Florida 33130 (law@miamigov.com; jagreco@miamigov.com) and Richard J. Lydecker, Esq. and Joan Carlos Wizel, Esq., 1221 Brickell Avenue, Floor 19, Miami, Florida 33131 (rI@lydeckerdiaz.com; jew@lydeckerdiaz.com). Ld ~~ Paul C. Savage (FBN 088587) CERTIFICATE OF COMPLIANCE, I hereby certify that this petition was prepared in Times New Roman, 14- point font, in compliance with Rule 9.100(/) of the Florida Rules of Appellate 1 Paul C. Savage (FBN 088587) Procedure. Savacel3 LEGAL