APPEAL CASE NO.: 14-492 AP Lower Tribunal No.: Resolution/File 13-01030iia IN THE CIRCUIT COURT OF THE 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIP ORIGIN. FILED, APPELLATE DIVISION ON FEB 09 2018 INTHE. OF SRCUT COR JACOB PFEFFER, CATALINA MONIKA POBOG-MALINOWSKA, VINTAGE LIQUOR AND WINE BAR II, ROS] BARRIOS, BLO DRY BAR FLORIDA, LLC N/K/A HEAD KANDI, LLC, SANDIROSE MADGER, YASMINE GARATE, ANTHONY DA VIDE, DAVID LE BATARD, AND LEBO. STUDIOS, Petitioners, vs. CITY OF MIAML FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, AND WAL-MART STORES EAST, LP, A DELAWARE LP, Respondents. CITY OF MIAMI’S RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI VICTORIA MENDEZ, City Attorney JOHN A. GRECO, Deputy City Attorney KERRI L. McNULTY, Asst. City Attorney 444 §.W. 2" Avenue, Suite 945 Miami, FL 33130-1910 Tel.: (305) 416-1800 Fax: (305) 416-1801 Attorneys for Respondent City of MiamiRESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI ‘CASE NO. 14-492 AP RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI’ The Respondent, City of Miami (the “City”), by and through its undersigned counsel, hereby files this Response to Petitioner Jacob Pfeffer, et. al’s (“Petitioners”) Amended Petition for Writ of Certiorari, and in support thereof states as follows: INTRODUCTION This case involves an appeal from the decision of the City of Miami Commission (“Commission”) affirming, on remand from a prior decision of this court, the Director of the Planning and Zoning Department’s (“the Director”) issuance of a Class II Special Permit to Wal-Mart Stores East LP (“Wal-Mart”). That decision affirmed the Director's issuance of the permit, but included a modification to the plans that removed a nonconformity” that had been found by this Court to be incompatible with the issuance of a Class II Special Permit. ' References to items in the Attachments to the Amended Petition for Writ of Certiorari will be made using “AP-” followed by the pertinent attachment and page numbers, For example, page four in the document found at attachment a will be indicated as “(AP:A.4).” References to items in the consecutively paginated Appendix to this Response will be made using “RA:” followed by the pertinent tab and page numbers. For example, page 4, which is found at tab 3 would be indicated by “(RA:3.4).” ? This Court’s October 15, 2014 decision found that “the Commission’s resolution finding that the Project complied with the requirements under the Code [was] a Page 20f 18, Dee. No: $0894[RESPONSE TO AMENDED PETITION FOR WRIT OF €1 CASE NO, The petition currently before this court presents one issue for review— whether the City departed from the essential requirements of law on remand, by affirming the Director’s issuance of a Class II Special Permit where the plans sidered by the Commission on remand were modified to remove the variance that waNhe sole basis for this Court’s prior opinion holding that the permit was impermissibleNQetitioners do not take issue with the fact that the plans as approved do not contain a variance. Rather, Petitioners assert that because Wal- Mart’s initial application for a permit contained a variance, the Commission was required under the City Code to proceed with a different permitting process, and that Wal-Mart’s application process should have begun anew on remand. Because the Code unambiguously permits the Commission to approve a Class II Special Permit with modifications, there is no legal basis to support Petitioners’ position. The Commission adhered to the essential requirements of law on remand, and the instant petition should be denied. IL. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY On August 21, 2012, Wal-Mart submitted its application to the Department of Planning and Zoning for a Class II Special Permit (“the permit”) in order to departure from the essential requirements of law” because the Project provided “for five (5) berths and the Code requires three (3) berths total.” (AP:A.6). Page3 of 18 Doo, No. SOH948[RESPONSE TO AMENDED PETITION FOR WRIT OF CER’ build a Super Wal-Mart store, which would incorporate traditional retail merchandise, full service grocery, and garden center. (AP:A.1). The proposed site for the store is 3055 North Miami Avenue, Miami, Florida which is zoned Midtown Miami West (SD 27.2) under the City of Miami Zoning Code (the “Code”). Id. Prior to issuing the permit, the Director referred Wal-Mart’s application for review to the Zoning Section of the Planning & Zoning Department, Department of Public Works, Office of Transportation, the Wynwood Neighborhood Enhancement Team Office, (the “NET Office”), and the Urban Development Review Board (“UDRB”) for consideration and recommendation. Id. On August 12, 2013, the Director conditionally approved the permit and issued the City’s Class II Special Permit Final Decision. (AP:A.2). On August 27, 2013, the Petitioners appealed the Director’s decision to the Planning, Zoning and Appeals Board (“PZAB”). Id, Following a public hearing before the PZAB on October 2, 2013, the PZAB voted in favor of approving the Director’s decision and denying the appeal. Id, On October 17, 2013, the Petitioners appealed the PZAB’s decision to the Miami City Commission (the “Commission”). Id, Among the issues raised by the Petitioners in the appeal was that the PZAB approval was an “end-run around the City’s variance requirements.” Id. A de novo, quasi-judicial public hearing was Page oF 18 Doe, Nox 508948RESPONSE TO AMENDED PETITION FOR WRIT ie held before the Commission on November 21, 2013. Id. The Commission then voted 3-0 to deny the appeal and uphold the Director’s decision. Id. The Commission adopted Resolution R-13-0471 which contained the following findings: (a)The proposed project will be beneficial to the surrounding area by providing new retail and service facilities while creating jobs for the area; (b) The proposed project, as presented reflects revisions and refinements made based on comments from reviewing Departments and the Urban Development Review Board, and is appropriate in scale and size pursuant to Section 1305 and the Midtown Overlay District 6.27.2 Midtown Miami West; (c) The proposed project is in compliance with the Miami Comprehensive Neighborhood Plan in that it promotes good urban infill and is consistent with the Buena Vista Fast Regional Activity Center (RAC), designation as applied to this property; and (d) This application has been reviewed pursuant to Section 1305 of ZO 11000 and the Miami 21 Code, Appendix C: Midtown Overlay District 6.27.2 Midtown Miami West and found to be sufficient. Id. Thereafter, the Petitioners filed a prior petition for writ of certiorari to this court. On October 15, 2014, this court issued an opinion which quashed the Commission’s decision in Resolution R-13-0471 and remanded the matter for further proceedings. (AP:A). In doing so, this court found that the Commission’s Page of 18 oe, Nos 08948RESPONSE TO AMENDED PETITION FOR WRIT OF CASE N eTIORART 1492 AP decision departed from the essential requirements of law in only one respect, stating: “since the Project provides for five (5) berths and the Code requires (3) berths total, this Court finds that the Commission’s Resolution finding that the Project complied with the requirements under the Code is a departure from the essential requirements of the law.” (AP:A.6). In other words, the only fault that the court found with Resolution R-13-0471 was that it included approval of a project with too many loading berths. Id, On remand, the Commission conducted a de novo, quasi-judicial public hearing on November 20, 2014. (AP:B). The application considered on that date contained modified plans that included only three loading berths. (AP:B.8,18). Presentations were given by the Director, the City Attorney, Paul Savage, on behalf of the petitioners, Richard Lydecker, on behalf of Wal-Mart, and numerous members of the public. (AP:B). During the hearing, the Director stated with respect to the plans that were being considered on remand that “[t]hey have presented to us . . . documents that show that where there were once five loading berths, there are now three loading berths.” (AP:B.8). Mr, Lydecker explained that Wal-Mart was Asking now that the resolution be passed approving our Class IL permit. We have done all the hearings in this case. That we pass our Class Il permit. And it’s like any other condition, its just—and include the condition as part of the resolution that we comply with the appellate order specifically requiring three loading berths. And to Pages of 18, oe, Naz SO8848[RESPONSE TO AMENDED PETITION FOR WRIT OF CI CASE N back that up, we've actually provided plans, . . . we will just have three loading berths. (AP:B.18). The Director later added that Planning and Zoning Department had reviewed the amended plans and concluded that “[tJhe modifications made to the plans render the three remaining loading berths fully functional.” (AP:B.27-28). With respect to the proper procedures on remand, Vice Chair Hardemon noted that “had the applicant come to us today and said, well, they wanted five not three [loading berths], then there would be a question of a variance. And then... the application process would be different.” (AP:B.46-47). Vice Chair Hardemon went on to ask whether the prior decision of this court that had remanded for “proceedings consistent” with the decision, referred to was the de novo review of the City Commission that they were undertaking. (AP:B.68) (“Because the word proceedings, I believe that becomes the phrase that we're concerned about . . .are we saying that it is this proceeding?”). The City Attorney confirmed that the hearing before the Commission on remand was all that was required by the decision: “For the above-stated reasons, we hearby quash the Commission’s decision as set forth in Resolution R13.” It doesn’t say quash everybody’s decision. It doesn’t say all decisions. It doesn’t say start over. (AP:B,70). Page 7 of 18 oe. No: $08948RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI Following the hearing, the Commission adopted Resolution R-14-0440, which approved the decision of the Director to issue the Class II Special Permit at issue, (RA:1.1-2). The Commission found that WHEREAS, on October 15, 2014, the Court issued an opinion quashing the City Commission’s decision as set forth in Resolution No. 13-0471, and remanded the matter back to the City Commission for proceedings consistent with the Court’s opinion; and WHEREAS, the Court found that since the Project provides for five (5) berths and the Code of the City of Miami, Florida as amended (“City Code”), requires three (3) berths total that the Commission’s resolution finding that the Project complied with the requirements under the City Code is a departure from the essential requirements of the law on that issue only; and WHEREAS, the City Commission after careful consideration of the evidence admitted into the record at this hearing and including the decision of the Court in the above referenced case, finds the application for the Class II Special Permit meets the applicable requirements of Zoning Ordinance No. 11000 and deems it advisable and in the best interest of the general welfare of the City of Miami and its inhabitants to affirm the decision of the PZAB and deny the appeal of Class IT... . (RA:1.1-2), Thereafter, Petitioners filed the instant petition for writ of certiorari. I. STANDARD OF REVIEW This Court reviews an administrative agency’s decision for whether the agency afforded due process, whether the decision is supported by competent Poge of 18 oe, Woz 508948RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI 4492 AP substantial evidence, and whether the decision complies with the essential requirements of the law. See City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982); Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). Competent substantial evidence is “such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred (or) ... such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” Duval Utility Co. v. Florida Public Serv. Comm’n, 380 So. 2d 1028, 1031 (Fla. 1980) (citing De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Generally, a ruling constitutes a departure from the essential requirements of law when it amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice. See Combs v. State, 436 So. 2d 93, 96 (Fla. 1983). Local governments are charged with their interpretation and enforcement of their codes, and their interpretation will not be overruled unless clearly erroneous. See Las Olas Tower v. City of Ft. Lauderdale, 742 So. 2d 308 (Fla. 4th DCA 1999). Page9 of 18 oe. No: 508948[RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI ‘CASE NO! 14-492 AP Iv. ARGUMENT THE CITY COMPLIED WITH THE ESSENTIAL REQUIREMENTS OF LAW BY APPROVING A MODIFIED VERSION OF THE ORIGINAL APPLICATION ON REMAND. Petitioners assert that the Commission departed from the essential requirements of law on remand by granting the Class II Special Permit where the original plans, although not those approved by the Commission, included a variance. Petitioners’ argument is essentially that if an initial application includes a variance, the application must proceed through the Major Use Special Permit (MUSP”) process, rather than the Class IT Special Permit process. Petitioners take the position that an application that even inadvertently includes a variance can never be modified during the approval or appeal process to conform the application to the requirements for a Class II Special Permit under the Code. This reading is entirely unsupported by the Code. In construing a statute, courts are to give effect to the legislative intent by first looking to the actual language used in the statute. Joshua v. City of Gainesville, 768 So, 2d 432, 435 (Fla. 2000). When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See, Acosta v. Richter, 671 So, 2d 149, 153 (Fla. 1996); Rinker Materials Corp. v. City Page 10 of 18, os. No 508948[RESPONSE TO AMENDED PETITION FOR WRIT OF Ci ASE N of North Miami, 286 So, 2d 552, 553 (Fla. 1973). In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. State v. Burris, 875 So. 2d 408, 410 (Fla. 2004); Nicoll v. Baker, 668 So. 2d 989, 990-991 (Fla. 1996) (when the statutory language is clear, “courts have no occasion to resort to rules of construction—they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.”). Furthermore, no literal interpretation should be given that leads to an unreasonable or ridiculous conclusion or to a purpose not designated by the lawmakers. City of Boca Raton v. Gidman, 440 So. 2d 1277, 1281 (Fla. 1983). Finally, the courts may not insert words or phrases in ordinances to express intentions which do not appear, Powell v. City of Delray Beach, 711 So. 2d 1307, 1309 (Fla. 4th DCA 1998), Municipal ordinances are subject to the same rules of construction as are state statutes, City of North Miami, 286 So. 2d at 553. Here, Petitioners’ arguments are premised on a faulty reading of several Code provisions. Within the Midtown Miami West Special District, the Code requires a Class II Special Permit, as follows: 627.2.3. Class II Special Permit. Section 627.2.3.1. When required, Page UL of 18 oo, Na. 508948[RESPONSE TO AMENDED PETITION FOR WI A Class I Special Permit shall be required prior to approval of any permit (except special permits pursuant to Article 13) affecting the height, bulk, location or exterior configuration of any existing building or the construction of a new building. Section 627,2.3.2. Considerations in making Class II Special Permit determinations. The purpose of the Class If Special Permit shall be to ensure conformity of the application with the expressed intent of this district, with the general considerations listed in section 1305, and with the special considerations contained in the Design Standards. Any variances (as defined in Article 19) sought ftom the provisions of the SD 27 regulations shall require such deviation to be considered within the process for a Major Use Special Permit as defined in Article 17 and the increased development thresholds as set forth above shall not apply. (RA:2.3)3 As noted by the Petitioners, section 1901 of the Code, which addresses variances, states that “[a] variance is not a special permit.” Section 1901, City of Miami Zoning Code (11000). (RA:3.4). Petitioners construe these two Code sections as requiring that any application that contains a variance must proceed 3 Section 2.2.1.1 of Miami 21 states: “This Code replaces the Zoning Ordinance for the City of Miami, also known as Ordinance 11000 except that Section 627, “SD-27 Midtown Special District” is hereby retained and incorporated as Appendix C hereto and all provisions of Ordinance 11000 referred to in Section 627 shall be applied to Midtown Special District, providing however that within the $D-27 Special District the Planning, Zoning and Appeals Board and procedures related to appeals thereto set out by this Miami 21 Code shall replace the Zoning Board and procedures related to appeals thereto in Ordinance 11000,” (RA:7.28). Page 12 of 18 oe, Na. 508948[RESPONSE TO AMENDED PETIFION FOR WRIT OF CI CASE 202 AP through the MUSP process, and that, therefore, the City’s processing of Wal- Mart’s application as a Class II Special Permit on remand constituted a departure from the essential requirements of Jaw. See Amended Petition at 27-28. But this construction of these isolated Code provisions ignores the fact that the Code contemplates that a Class IT 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. First, Section 1305 of the Code establishes that the Director can “approve, approve with conditions, or deny” applications for special permits. Section 1305, City of Miami Zoning Code (11000) (RA:4.13).4 The Code allows the Director to approve an application subject to “such conditions and safeguards as may be necessary for the purposes of this zoning ordinance in the particular case.” Section 1306, City of Miami Zoning Code (11000) (RA:4.21). The Director, therefore, has authority under the Code to modify an initial application for a special permit to guarantee compliance with the requirements of the Code. Similarly, at review to both the PZAB and the Commission, the Code grants those bodies the power to modify the pending application. Under Section 1806, * Article 13 is specifically referenced in Section 627 and, therefore, applies to these proceedings pursuant to Section 2.2.1.1 of Miami 21. See note 2, supra. Additionally, Section 1311 explains the appeals process for special permits and expressly references articles 18 and 20, which also, therefore, apply here. Page of 18 oo. No. S08948RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARL (CASE NO. 140192 AP. the PZAB, “in exercising authority to review the decision of the administrative official”... “may reverse or affirm, wholly or in part, or may modify the decision appealed from and may make such decision as ought to be made.” Section 1806, City of Miami Zoning Code (11000) (emphasis added); (RA:5.25). And in an appeal from a decision of the PZAB to the Commission, the Code explains the Commission’s powers on review, as follows: The city commission shall conduct a hearing de novo as a body of original jurisdiction, upon any appeal and/or review from an appealable decision under the terms of this zoning ordinance, as amended. New evidence or materials may be received by the city commission where such evidence or materials are pertinent to a determination of the appeal. The city commission may hear the testimony of witnesses and/or any other evidence offered by any person aggrieved or by any officer, board or agency of the city affected thereby or by any interested party having an interest in the appeal under Florida law and may, in conformity with this ordinance and other applicable laws, rules and regulations, render its decision, The city commission on review shall have full power to affirm, reverse, modify, in whole or in part, with or without conditions, the action of the zoning board or other appealable decision pursuant to this zoning ordinance. Section 2004, City of Miami Zoning Code (11000) (emphasis added); (RA:6.26- 27). Under the unambiguous language of the Code, a Class II Special Permit may be approved, even if the original application requires conditions or modifications prior to approval. There is nothing in the Code, therefore, that would prohibit the Commission from approving a Class II Special Permit here, Page 14 of 18, Boo, Nox 508948RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI ‘CASE.NO4 14-492 AP where the approval required a modification of the plans to include only three loading berths, and where such a modification was made prior to approval. The application as approved did not contain a variance. (AP:B.8,18). There is simply nothing in the record from which any departure from the Code, or the essential requirements of the law, can be deduced. The cases relied upon by Petitioners in support of their position are inapposite, as each of those cases stands for the idea that a municipality must follow its Code, and none present a factually analogous situation where a court found that a municipality was not permitted to modify an application prior to approving a permit. See Gulf & B, Dev. Corp. v. City of Fort Lauderdale, 354 So. 2d 57, 61 (Fla, 1978) (holding that a municipality is “bound by the procedural requirements imposed by its city charter and ordinances”); Town of Longboat Key v. Islandside Prop. Owners Coal., LLC, 95 So. 3d 1037, 1042 (Fla. 2d DCA 2012) (holding that a “[eJown is bound by the wording of its Code”); Town of Hilliard, 766 So. 2d 1241, 1243 (Fla. 1st DCA 2000) (holding that “mandamus relief is appropriate to contest a zoning measure adopted without the notice and public hearing required for all zoning ordinances”); O'Connor v. Dade Cnty., 410 So. 2d 605, 605 (Fla. 3d DCA 1982) (holding that county erred in adopting a zoning plan without following its code); Webb _v. Town Council of City of Miami Beach v. State ex rel. Consolo, 279 So. 2d 76, 79 (Fla. 34 DCA 1973) (holding that Page 15 of 18 oe, Na: 508948RESPONSE TO AMENDED PETITION FOR WRIT OF CASEN municipality could not adopt zoning ordinance without following provisions of its code); Florida Tallow Corp. v. Bryan, 237 So. 2d 308, 310 (Fla. 4th DCA 1970) (same), Ny. CONCLUSION Based on the foregoing, the instant petition must be denied because the Commission fully complied with the Code in affirming the decision of the PZAB on remand. The Commission, therefore, adhered to the essential requirements of law. Accordingly, the Respondent City of Miami respectfully requests that this Court deny Petitioners’ Petition for Writ of Certiorari. Dee, No 508848 VICTORIA MENDEZ, City Attorney JOHN A. GRECO, Deputy City Attorney KERRI L. MeNULTY, Asst. City Attorney 444 S.W. 2" Avenue, Suite 945 Miami, FL 33130-1910 Tel.: (305) 416-1800 Fax: (305) 416-1801 Primary E-mail: kimenulty@miamigov.com Secondary E-mail: tmickens@miamigov.com Attorneys for Respondent City of Miami By: ft lube Kerri L. MeNulty, Assistaftt City Atiomey Florida Bar No. 16171 Poge 16 oF 18RESPONSE TO AMENDED PETITION FOR WRIT OF CERTIORARI (CASE NO, 14-492 AP CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the foregoing has been furnished to those individuals on the attached Service List by e-mail this 9th day of February, 2015. Paul C. Savage, Esq. The Law Offices of Paul C, Savage, P.A. 100 Almeria Avenue, Suite 220 Coral Gables, Florida 33134-6025 Joan Carlos Wizel, Esq. Mark A. Emanuele, Esq. Richard Lydecker, Esq. Manuel A. Diaz, Esq. LYDECKER DIAZ, 1221 Brickell Avenue, 19° Floor Miami, Florida 33131 jew@lydeckerdiaz.com mae@lydeckerdiaz.com manny@lydeckerdiaz.com 1l@lydeckerdiaz.com Attorneys for Respondent Stores East, LP £ asa City Attorney Florida Bar No. 16171 Paul@SavageLegal.Com Attorney for Petitioners Wal-Mart Page 17 of 18, Doe. Now 508948RESPONSE TO AMENDED PETITION FOR WRU -RTIORARL ‘CASH NO. 142492 AP CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing brief complies with all the requirements set forth in Florida Rule of Appellate Procedure 9.100. By; Rew. Le Nabe Kerri L. McNulty, A: int Attorney Florida Bar No. 16171 Page 18 of 18 oe, Nas 508948