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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA


Appellate Division Case No. 14-492 AP
______________________________________________________
On Petition for a Writ of Certiorari from a Resolution of the City of
Miami Commission
(File No. 13-01030iia)
______________________________________________________
JACOB PFEFFER, et al.,
Petitioners,
v.
CITY OF MIAMI, FLORIDA and WAL-MART STORES EAST, LP,
Respondents.

WAL-MART STORES EAST, LPS


RESPONSE TO AMENDED PETITION FOR A WRIT OF CERTIORARI

Joan Carlos Wizel


Mark A. Emanuele
Richard Lydecker
Manuel A. Diaz
LYDECKERDIAZ
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
(305) 416-3180
Counsel for Respondent
Wal-Mart Stores East, LP
FEBRUARY 9, 2015

Respondent, Wal-Mart Stores East, LP (Wal-Mart), responds to the


Amended Petition for Writ of Certiorari (the Petition) filed by 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
(collectively Petitioners), as follows.
INTRODUCTION
This case comes before this Court after this Court already approved WalMarts Class II Permit (the Permit) with respect to every appellate issue
previously raised by Petitioner, save only the one (1) very narrow and limited issue
regarding the legal interpretation of the City of Miamis Zoning Code 11000 (the
Code) requirement of three (3) interior loading berths. On remand from the first
appeal, the Permit was simply reduced to three (3) interior loading berths pursuant
to this Courts remand Order; everything else previously upheld on appeal by this
Court remains exactly the same, and not so much as one light switch or wall was
altered in the Permit plans. The law of the case has been established by this Court,
and has been followed on remand by Wal-Mart, the City, and the Commission,
and, frankly stated, there is nothing to decide that has not already been decided.
The first appeal resulted in the opinion issued on October 15, 2004, in
Pfeffer v. City of Miami, et al., case number 14-004 AP (Pfeffer 1), in which this

Court found that Section 627.2.15 of the Code required an absolute number of
three (3) loading berths, and the Citys long-standing interpretation of this section
as establishing a minimum requirement but allowing it to call for a higher number
of berths for any given project was incorrect. On remand, Wal-Mart conformed its
project to meet this Courts holding on Section 627.2.15s requirement by reducing
the off street loading berths from five (5) to three (3). The City of Miami
Commission (the Commission) on remand from this Court then considered
Petitioners appeal in accordance with this Courts opinion. Based upon its de novo
review of the project and with the recommendation of the Planning Director, the
Commission (on a unanimous vote) issued Resolution number 13-01030iia on
November 20, 2014, affirming the decision of the Planning, Zoning and Appeals
Board (the PZAB) to deny the appeal of the Permit and approving the Permit
with only three (3) loading berths.
Having obtained what they asked for in the first appeal (that the project
contain only three (3) loading berths), this second appeal can only be presumed to
be a tactic to delay the construction allowed by the Permit, based on Petitioners
ideological objections to Wal-Martwhich have no place in consideration of the
issues. The argument advanced by Petitionersthat the Commission had no
jurisdiction to entertain the application on remand because before Pfeffer 1 the
project contained five loading berths, and that the Commission was required to

force Wal-Mart to either re-submit an application for a Class II Special Permit


anew and start the (now over two-year long) process all over again or submit an
application for a Major Use Special Permit (MUSP) requesting a variance for the
five loading berths that Wal-Mart does not want or seekhas no legal support
whatsoever (either in the Code or case law); in fact, it is patently contrary to the
Code, the law of the case established in Pfeffer 1, and historical practice evidenced
in Florida case law.
The Petition should be denied.
STATEMENT OF THE ISSUE PRESENTED
Whether the Commission departed from the essential requirements of the
law by approving the Permit for the Project, which, as conformed to meet the
loading berth requirement announced in Pfeffer 1, was in full compliance with the
Code.
STATEMENT OF THE CASE AND FACTS1
This Court is well familiar with the lengthy factual and procedural history of
this case, as it has been previously and fully addressed in Wal-Marts Response to
the Petition filed in case number 14-004 AP and in this Courts opinion in Pfeffer

References to the Appendix to this Response will be made using R.


App. __ at __ denoting the Tab and page number.
3

1. Rather than restating it in this brief, we will simply summarize it, referring the
Court to Pfeffer 1 and Wal-Marts prior brief.2
Over two years ago, on August 21, 2012, Wal-Mart submitted its
application to the Department of Planning and Zoning for a Class II Special Permit
to allow construction of a Wal-Mart store (the Project) in the property located at
3055 North Miami Avenue. See Pfeffer 1, App. A at 2; App. B at 3-5. This location
is zoned for a big box retail facility as Midtown Miami West under the City of
Miami Zoning Code. See id. Almost a year later, on August 12, 2013after
making referrals to the Urban Development Review Board, the Neighborhood
Enhancement Team Office, the Department of Public Works, and the Office of
Transportationthe Planning Director conditionally approved the Permit in his
final decision. Pfeffer 1, App. A at 1-2; App. B at 5-7.
Petitioners then appealed the Directors decision to the PZAB on August 27,
2013. After a public hearing was held before the PZAB on October 2, 2013, the
PZAB denied the appeal of the Class II Special Permit. Pfeffer 1, App. A at 2;
App. B at 7-9. Petitioners then appealed the PZABs decision to the Commission
on October 17, 2013. App. B at 9. After holding a de novo, quasi-judicial public

For the Courts convenience, this Courts opinion in Pfeffer 1 is included as


Appendix A and Wal-Marts brief filed in case number 14-004 AP is included as
Appendix B to this Response.
4

hearing on November 21, 2013, the Commission unanimously denied the appeal
and approved the Permit. Id. Pfeffer 1, App. A at 3; App. B at 9-14.
On January 2, 2014, Petitioners then filed a Petition for Writ of Certiorari in
this Court, challenging the Resolution of the Commission. After full briefing, oral
argument, and supplemental briefing, this Court rejected six (6) of the seven
arguments Petitioners presented in challenging the Permit.3 The Court, however,
agreed with one (1) of their narrow arguments: that the Commission deviated from
the essential requirements of the law by approving a permit that, pursuant to the
3

Specifically, this Court held in favor of the City and Wal-Mart that:

(1)

the Director was not bound by the UDRB and NET Office
recommendations, and he did consider those recommendations and his final
decision was affected and limited by those reports (Pfeffer 1, App. A at 4-5);

(2)

the requirements of Section 1305 applied to the Commissions review on


appeal, but the written findings of the Commission were sufficient to satisfy
Section 1305 as a matter of law (Pfeffer 1, App. A at 6-7);

(3)

since the Commission made its own findings and determination, Petitioners
challenge to the Directors findings was moot (Pfeffer 1, App. A at 5, n.3);

(4)

there was sufficient evidence in the record to support the Commissions


decision that the Project met the building continuity requirements based on
the experts interpretation that continuous in design refers to architectural
elements, not style (Pfeffer 1, App. A at 8-9);

(5)

there was sufficient evidence in the record to support the Commissions


decision that the Project met the requirements for active pedestrian usage
frontage (Pfeffer 1, App. A at 8-9); and

(6)

there was sufficient evidence in the record to support the Commissions


decision that the Project met the requirements for liner uses and setbacks
based on the expert testimony finding that parking spaces were setback 85
feet (Pfeffer 1, App. A at 8-9).

Citys long-standing interpretation of Section 627.2.15 of the Code, allowed the


Project to contain five (5) loading berths instead of three (3). Pfeffer 1, App. A at
8-10. The Court held that Section 627.2.15 could not be interpreted, as the City had
done for years, to establish a minimum requirement of loading berths, but instead
required a definite number of three (3) loading berths. Id. Thus, the Court quashed
the Commissions Resolution and remanded the case to the Commission for further
proceedings consistent with that ruling. Pfeffer 1, App. A at 10; see also App. C
(Mandate issued on October 31, 2014) at 1.
Heeding to this Courts decision, in anticipation of appearing before the
Commission on remand from this Court, Wal-Mart and the Citys Department of
Planning and Zoning agreed to conform the plans for the Project to provide only
for three (3) (instead of five (5)) loading berths. A de novo, quasi-judicial public
hearing was then held on remand before the Commission on November 20, 2014.
At the hearing, the Planning Director testified about the conformed Project as
follows:
I am under the impression that we have been directed by
the court to correct an error that was made in the Class II
Special Permit, which my department issued and which I
signed.
So I understand my choices to be very limited today as
your Planning and Zoning Director. And my choices are
basically only to bring back to you a project that has a
total of three loading berths, because the Court decided
that total is to be interpreted as meaning no more than, no

less than three loading berths. And this is, in fact, what
the applicants, the original applicants, have done.
They have presented to us, and you will find in your
packets, documents that show that where there were once
five loading berths, there are now three loading berths.
And, of course, because we have to do our due diligence,
we had to make sure that those three loading berths that
the document show are functional, which is why you will
see in some of the drawings there are maneuvering
diagrams.
So there are three functional loading berths presently in
this particular establishment. By doing so, we believe
that we have complied with the courts order. And we
submit to you then that the revised set of documents, and
the analysis and findings that are attached to those
documents are worthy of your approval and corrective of
the defect found by the courts.
App. D (Tr. of Nov. 20, 2014 Commission Hearing) at 7:128:21. He assured:
The modifications made to the plans render the three
remaining loading berths fully functional. There are
maneuvering studies that prove that.
In addition to that, we find that the three loading berths,
as provided, comply with what we understand this to be
the -- we understand to be the courts mandate, to
interpret the code to mean that, at most, and at least three
loading berths shall be provided. So we are here to verify
that three loading berths, fully compliant with the
appropriate sizes and dimensions provided by the zoning
ordinance, have indeed been provided. Plans attached to
show that is the case.
App. D at 28:117. The Planning Director concluded,
I think it is important, and perhaps appropriate, to
hopefully clarify something that may be confusing. And
it is this.

I, as your Planning and Zoning Director, stand corrected


by the court. I want to assure this Commission that the
mistake made by your Planning and Zoning Department
is not to have overlooked a variance. That is a rather
significant issue. And Im here to tell you that has never
happened and it will never happen, at least under my
watch. Im positive of that.
The reason we stand corrected is, because this court has
found that a longstanding interpretation of the code,
which says that the language in Section 627.2.15 OffStreet Loading, which says for nonresidential floor area
up to 250,000 square feet, 3 berths total.
Im humbled. I, my predecessors, had always opined that
that meant three was a minimum, and we could certainly
exceed it. It turns out, as the court says, that the plain
meaning of the word total makes it so that it cannot be
interpreted reasonably as being more than three. We
stand corrected. Were humbled by it.
Im here to tell you, though, and this is the important
thing, that had this been correctly interpreted to mean
that only three loading berths were required, you would
have had before you, one year ago, exactly the project
that you are affirming today.
App. D at 82:1583:25.
As in their Petition, despite their caricatured representation of the revisions
made to the planswhich were adequately addressed by the Director at the
hearing on remand (see App. D at 58:2259:24)Petitioners did not present any
argument to challenge the plans conformed to provide for only three (3) loading
berths. The only issue Petitioners raised at the hearing was the authority of the
Commission to approve the Permit based on the Project that was conformed to

provide the three (3) loading berths they themselves had previously requested.
Petitioners claimed (similar to their argument in this Court) that, even though the
Project now conformed to the three loading berths requirement in alignment with
Pfeffer 1, because (based on the Citys interpretation of the Code) the original
application provided for five loading berths, the Commission was now required to
force Wal-Mart to either re-submit an application for a Class II Special Permit and
restart the entire process anew or submit an application for a MUSP requesting a
variance for the two additional loading berths that Wal-Mart does not want. The
Commission thoroughly rejected Petitioners position, and, expressly relying on
this Courts opinion in Pfeffer 1, voted unanimously to affirm the decision of the
PZAB to deny the appeal and to approve the Permit with only three berths.
This second Petition was then filed on December 16, 2014.
STANDARD OF REVIEW
The Courts review of local agency action is deliberately circumscribed out
of deference to the [local] agencys technical mastery of its field of expertise,
Broward County v. G.B.V. Intl Ltd., 787 So. 2d 838, 843 (Fla. 2001). In
reviewing the decision of quasi-judicial action of an administrative body, the
circuit court must determine whether the decision is supported by competent
substantial evidence, whether the essential requirements of the law have been
observed, and whether due process has been accorded. Pfeffer 1, App. A at 3-4

(citing City of Deerfield Beach v. Valiant, 419 So. 2d 624, 626 (Fla. 1982); Florida
Power & Light Co. v. City of Dania Beach, 761 So. 2d 1089, 1092 (Fla. 2000); and
Broward Cnty. v. G.B. V. Intl, Ltd, 787 So. 2d 838, 843 (Fla. 2001)). Petitioners
only argument, however, is that the Commission departed from the essential
requirements of the law by considering modifications to the Project that
extinguished the only impediment to issuance of a Class II Special Permit pursuant
to Pfeffer 1.
The required departure from the essential requirements of law means
something far beyond legal error. Jones v. State, 477 So. 2d 566, 569 (Fla. 1985)
(emphasis added). To find that the Commission did not adhere to the essential
requirements of law, the Court must find that there is an inherent illegality or
irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with
disregard of procedural requirements, [which] result[ed] in a gross miscarriage of
justice. Id. (emphasis added); see also Miami-Dade County v. Omnipoint
Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003) (explaining that 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
(citing Tedder v. Florida Parole Commn, 842 So. 2d 1022, 1024 (Fla. 1st DCA
2003) (quoting Combs v. State, 436 So. 2d 93, 96 (Fla. 1983)); see also Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (same).

10

ARGUMENT
The Petitioners argument is based on one fatal flaw: the assumption that an
application for a Class II Special Permit must at its inception be fully compliant
with all requirements of the Code, and once the Director approves the Class II
Special Permit, the application cannot be modified to conform to Code
requirements. Petitioners claim that if any aspect of the application does not
conform to the Code requirements, it constitutes a variance and the application
must be denied, at which time the applicant must be required to either submit an
application for a Major Use Special Permit or re-submit the Class II Special Permit
application anew. This conceptualization of such a patently incompetent process
for approval of a Class II Special Permit is simply wrong. Specifically, the Petition
lacks merit and should be denied because, as more fully explained below, it has
been decisively established by both the law of the case and by precedent of the
Third District Court of Appeal that, in issuing its decision to ultimately approve the
Class II Special Permit, the Commission was well within its authority to conduct a
de novo review and to hear new evidence on remand.
I.

Section 1305 and its application to the Commissions


review pursuant to the law of the case established in
Pfeffer 1 definitively bars Petitioners challenge to the
Commissions authority in its review on remand.

Section 1305 of the Code wholly undercuts Petitioners argument. That


provision states:
11

The City agent, board, or commission that is


charged with decisions concerning each of the special
permits shall review the proposal before them and shall
make, or cause to be made, written findings and
determinations in accordance with the established
applicable criteria set forth in this zoning ordinance and
the City Code. Such findings shall be used to approve,
approve with conditions, or deny the pending
application.
Approvals shall be issued when such application
complies with all applicable criteria.
Conditional approvals, shall be issued when such
applications require conditions in order to be found in
compliance with all applicable criteria.
Denials of applications shall be issued if after
conditions and safeguards have been considered, the
application still fails to comply with all applicable
criteria.
(Emphasis added.) See also Section 2004 of the Code (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.) (emphasis added).
The highlighted text patently invalidates Petitioners position in this appeal,
which, in contrast to Section 1305, posits that,
The governing Code . . . imposes a jurisdictional switch
in the procedural track: if there is a variance in an
application, then the applicant must submit an application
for a MUSP and proceed under the MUSP procedures. If
there is no variance, then the applicant must submit an
application for a Class II Special Permit (with no

12

variance unlawfully buried therein). Never the twain


shall meet.
Petition at 15-16. That argument is plainly wrong, because the plain language of
Section 1305 allows the Commission to review applications that in some aspect did
not originally comply with Code requirements and require modifications or
conditions to comply with such Code requirements and approve the Class II
Special Permit application with those modificationsprecisely what the
Commission did in this case on remand.
Moreover, Petitioners cannot challenge Section 1305s application to the
Commissions review of the PZAB determination, because the law of the case
established in Pfeffer 1 bars any such challenge. The doctrine of the law of the case
requires, absent limited exceptions not applicable here, that questions of law
actually decided on appeal must govern the case in the same court and the trial
court, through all subsequent stages of the proceeding. Dougherty ex rel. Eisenberg
v. City of Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009) (collecting cases). See
also Dougherty ex rel. Eisenberg v. City of Miami, 89 So. 3d 963, 966 (Fla. 3d
DCA 2012) (same) (quoting State, Dept of Revenue v. Bridger, 935 So. 2d 536,
538 (Fla. 3d DCA 2006)); Engle v. Liggett Grp., 945 So. 2d 1246, 1266 (Fla. 2006)
(same) (citing Fla. Dept of Transp. v. Juliano, 801 So. 2d 101, 105-06 (Fla.
2001)). The purpose of the doctrine is to lend stability to judicial decisions and
the jurisprudence of the state, as well as to avoid piecemeal appeals and to bring
13

litigation to an end as expeditiously as possible. Strazzula v. Hendrick, 177 So. 2d


1, 3 (Fla. 1965); see also Bridger, 935 So. 2d at 538-39 ([P]oints of law
adjudicated in a prior appeal are binding in order to promote stability of judicial
decisions and to avoid piecemeal litigation.) (quoting Bueno v. Bueno d Khawly,
677 So. 2d 3, 4 (Fla. 3d DCA 1996)). Moreover, the doctrine of law of the case
applies to rulings of the circuit court sitting in its appellate capacity on review from
a resolution of the city commission. Dougherty ex rel. Eisenberg, 23 So. 3d at 15758 (holding that the decision made by the circuit court in a first appeal on the
issues which were necessarily presented and decided in a first-tier certiorari
petition were the law of the case, and therefore, both the commission and the
circuit court were obligated to follow those rulings in subsequent proceedings on
remand and in a second appeal). Thus, the rulings of this Court in Pfeffer 1 became
the law of the case for proceedings on remand before the Commission and for this
appeal.
In Pfeffer 1, this Court ruled, among other things, that: (1) Section 1305
applies to the facts in this case, such that its provisions are applicable to the
Commissions appellate review (Pfeffer 1, App. A at 6), and (2) the Commission is
required to conduct a de novo review on appeal, and since the Commissions
review is de novo and it makes its own findings and determination, any error by the
Director would be irrelevant and moot (Pfeffer 1, App. A at 5, n.2, n.3). Both of

14

these issues, dispositive of this petition, were necessarily presented and decided in
Pfeffer 1.4 These rulings became the law of this case. Petitioners are therefore
barred from revisiting these issues. Any argument that Section 1305 did not apply
to the Commissions review below fails as a matter of law. So too, any argument
that the Commission could not conduct a de novo hearing in which it could
consider the plans that were revised to conform to this Courts ruling in Pfeffer 1
4

On the first issue, Wal-Mart contended that procedures governing the


decision made by the Commission in its appellate capacity are governed by Miami
21, not Section 1305 of the Code. Thus, it argued that the Commission was not
required to issue the written findings required by Section 1305.4 Pfeffer 1, App. A
at 5-6; App. B at 26-28. In response, Petitioners argued that Miami 21 changed
from the legacy boards of the Zoning Board or Planning Advisory Board to the
PZAB . . . [but] does nothing to change the requirement for findings by the
Director under section 1305 or the City Commission in connection with Class II
Special Permits. Petitioners Reply Brief filed in case number 14-004 AP at 8.
Indeed, they asked that the Court follow: the text of the Code; the text of the
Permit [that said it was issued in accordance with Section 1305]; the text of the
Resolution [stating it was issued in accordance with Section 1305]; the Petitioners
brief; the decision in Dougherty; the City in its brief; and reject the argument in
Wal-Marts brief. Id. Ultimately, this Court held that Section 1305 is applicable to
the facts of this case and govern the Commissions appellate review. Pfeffer 1,
App. A at 6.
On the second issue, in Pfeffer 1, Petitioners raised a challenge to the
sufficiency of the Directors written findings in approving the Permit. See Pfeffer
1, App. A at 5, n.3. Both Wal-Mart and the City argued that the challenge to the
Directors findings was futile or harmless because the issues were considered de
novo by the PZAB and the Commission, and the Court could also evaluate the
evidence to determine its sufficiency. App. B at 31-32; City of Miamis Brief filed
in case number 14-004 AP at 20-23. Ultimately, this Court held that the
Commission is required to conduct de novo review of the proceedings below, and
since the Commissions review is de novo and it makes its own findings and
determination, any error by the Director would be irrelevant and the issue was
moot. Pfeffer 1, App. A at 5, n.2, n.3).
15

by providing only for three loading berths and make its own determination fails as
a matter of law. Without those arguments, the petition in this case is stripped of
any substance and rendered baseless.
The Commission adhered to the essential requirements of the law in its
review of the issues on remand pursuant to this Courts decision in Pfeffer 1. The
Petition should therefore be denied.
II.

Petitioners argument is further exposed meritless by


historical application of remand proceedings in Florida.

Petitioners position implies, without citation to any authority, that the case
was not properly before the Commission on remand. In stark contrast to
Petitioners claim, Florida case law illustrates that decisions from this Court
quashing resolutions of the Commission are to be remanded to the Commission for
it to consider and address the matters resolved by this Courts (or the Third District
Courts) opinion in the certiorari review. See Hernandez-Canton v. Miami City
Comn, 971 So. 2d 829, 831 (Fla. 3d DCA 2007); Dougherty ex rel. Eisenberg v.
City of Miami, 89 So. 3d 963, 964-66 (Fla. 3d DCA 2012); and Jesus Fellowship,
Inc. v. Miami-Dade County, 752 So. 2d 708, 711 (Fla. 3d DCA 2000).
In Hernandez-Canton, the Commission enacted a zoning resolution granting
approval for a development proposed by a developer/applicant. 971 So. 2d at 831.
The objectors of the project sought certiorari review in this Court, which denied
certiorari. Id. On second-tier review, the Third District concluded that the
16

Commission and the circuit court had applied the incorrect law and quashed the
ruling of the appellate division of the circuit court required that [t]he matter [ ] be
remanded by the Circuit Court to the Commission for further proceedings
consistent with this courts opinion. Id. (emphasis added). Id.
On remand, as required, the Commission held a hearing in which there was a
disagreement about how to interpret the Third Districts opinion, and in the end it
enacted a new zoning resolution accepting the view of the opinion suggested by the
City Attorney. Id. The objectors sought certiorari review in this Court, which was
denied. Id. They then sought second-tier certiorari review in the Third District,
which ruled that its prior opinion had been misinterpreted in the proceedings on
remand. Id. The Third District therefore granted certiorari and quashed; it vacated
the prior two zoning resolutions of the Commission, and instructed:
We remand this matter to the circuit court
appellate division, with directions to remand the matter
to the City Commission for a new hearing and
determination by the City Commission whether the
proposed project does, or does not, comply with Section
1305 as amended in 2004.
At the new hearing, the developer has the burden
of demonstrating compliance with the new version of
Section 1305. The City Commission must reopen the
record and afford the developer and the objectors an
opportunity to present new evidence if they so choose.
Alternatively, the developer and the objectors are free to
rely on the existing record if they so choose.

17

Id. at 831-32 (emphases added). See also Dougherty, 89 So. 3d at 964-66


(evidencing the remand to the Commission on three separate occasions following
certiorari review of the same special permit application); and Jesus Fellowship,
Inc., 752 So. 2d at 711 (quashing the circuit courts order and remanding the case
with instructions to the circuit court to direct the Commission to address the
issues ruled upon by the court).
Like in Hernandez-Canton, the first Resolution of the Commission was
quashed in Pfeffer 1 and this Court required that the matter be remanded to the
Commission for further proceedings consistent with this Courts opinion. As
required in Hernandez-Canton, on remand, the Commission properly conducted a
de novo hearing to make a determination of whether the proposed project does, or
does not, comply with the three (3) loading berth requirement of Section 627.2.15
consistent with Pfeffer 1. At that hearing, as the Third District explained, the
Commission was required toand did in factreopen the record and afford[ed]
[Wal-Mart] and the objectors an opportunity to present new evidence . . . .
Hernandez-Canton, 971 So. 2d at 832. Upon reviewing the new evidence, i.e., the
plans of the Project conformed to provide for only three (3) loading berths
consistent with Pfeffer 1, the Commission followed the law and approved the
Permit.

18

The issue of the proper scope of the Commissions review on remand from a
decision of this Court after certiorari review was also extensively addressed by
Judge Wells in her special concurrence in Dougherty v. City of Miami, 23 So. 3d
156 (Fla. 3d DCA 2009). Judge Wells agreed with the majority that the
Commission (on remand) and the circuit court (in a second appeal) were bound by
the doctrine of the law of the case to follow the incorrect ruling first issued by the
circuit in a prior appeal in that case in which the circuit court had found that the
Commission had improperly exceeded its appellate jurisdiction by considering new
evidence at a de novo hearing and finding that it was instead required to conduct a
review limited to . . . the record received from the Zoning Board. Dougherty v.
City of Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009). In her special
concurrence, however, she explained why that first rulingwhich advanced the
very same erroneous argument that Petitioners would like this Court to accept
incorrectly stated the law. Id. at 160-63.
As the concurrence explained, nothing in the Code constricted the
Commissions review of the Zoning Appeals Boards decision. Id. at 161.
Moreover, it noted,
It is, of course, well accepted that local government
decisions regarding building permits are quasi-judicial in
nature and are subject to de novo review. See Broward
County v. G.B.V. Intl, Ltd., 787 So. 2d 838, 842 n. 4
(Fla. 2001) (confirming that local government decisions
on building permits, site plans, and other development
19

orders are quasi-judicial in nature). Such proceedings, as


we have stated, are those at which at least the parties
must be allowed to present evidence and cross-examine
witnesses. See Jennings v. Dade County, 589 So. 2d
1337, 1340 (Fla. 3d DCA 1991).
Id. Thus, the concurrence explained that there was no basis for determining that the
Commission was limited on remand to conducting an appellate review similar to
that conducted by the courts and as contemplated by the rules of appellate
procedure when reviewing administrative actions from other agencies like the
Zoning Appeals Board, and that the Commission was well within its authority to
conduct a de novo review and to hear new evidence in making its own
determination. Id. at 163-64.
Like in Dougherty, nothing in the Code or Miami 21 limits the manner in
which the Commission may review decisions of the PZAB (either in the course of
an appeal on first instance or on remand from certiorari review). Quite the
opposite, as this Court found in Pfeffer 1, under the Code and Miami 21, the
Commission conducts a de novo review and makes its own determination on the
application for a permit. Pfeffer 1, App. A at 5, n.2. See also MIAMI 21, Art. 7,
7.1.2.4(e) (The ruling of the Planning, Zoning and Appeals Board may be further
appealed to the City Commission, de novo . . . .); Section 1305 (requiring the
Commission to make its own determination); Section 2004 (mandating that upon
any appeal, [t]he city commission shall conduct a hearing de novo as a body of

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original jurisdiction, at which [n]ew evidence or materials may be received . . .


[and] may hear the testimony of witnesses and/or any other evidence offered, and
affirming that the commission has the full power to affirm, reverse, modify, in
whole or in part, with or without conditions.). Thus, as in Dougherty, the
Commission was well within its authority to conduct a de novo review, to hear new
evidence in making its determination, including plans conformed to provide only
three (3) loading berths consistent with Pfeffer 1, and approve the application that
complied with all requirements of the Code.
Unable to provide any case law in support of their position that Wal-Mart
was required to re-submit a permit application and start the process anew (and
despite this Courts Opinion in Pfeffer 1 approving the process and the Permit in
all but one limited respect), Petitioners attempt to persuade this Court with three
(3) inadequate analogiesnone supported with citations to any authoritytwo of
which are simply irrational, and the last one unsubstantiated and unsound.
Petitioners first analogy offers an imaginary world where an appellate court
ruled that a juvenile criminal defendant should have been tried as an adult, and
suggests that in such a case the removal of the charge that required the juvenile to
be tried as an adult would not sanitize the prior proceeding. Petition at 25. The
analogy is illusory, as it is based on an unconstitutional proposition; the scenario
posed would be precluded by the Double Jeopardy Clause of the Fifth Amendment.

21

See Breed v. Jones, 421 U.S. 519, 531 (1975) (holding that the juvenile criminal
defendant was put in jeopardy at the juvenile court adjudicatory hearing, and
therefore, his subsequent prosecution as an adult violated the Double Jeopardy
Clause of the Fifth Amendment, as applied to the States through the Fourteenth
Amendment).5
The second analogy is just as bad. Here, Petitioners pose an irrational
scenario where an appellate court rules that a case should have been tried in
federal court, and suggest that in such a case the removal of the federal claims
that required proceedings in federal court after-the-fact will not cure the prior
proceedings. Petition at 25. It is nearly impossible to conceive of such a case
because (a) removal to federal court is automatic upon filing of a notice of removal
pursuant to 28 U.S.C. 1446 within the strict time constraints of the statute, (b) a
motion to remand is governed by 28 U.S.C. 1447(c) and is generally due within

Moreover, Petitioners analogy would be similarly misguided if it proposed the


more realistic inverse scenario, where an appellate court ruled that there was a
procedural defect in the adjudication requiring a juvenile criminal defendant to be
tried as an adult. Even in that scenario, the defect may be curable on remand, and
in any event, there is no support for the proposition that the entire proceedings
would have to start anew. See Kazakoff v. State, 642 So. 2d 596 (Fla. 2d DCA
1994) (holding that even though the trial court erred in failing to comply with
statutory requirements governing the procedure to impose adult sanctions on a
juvenile, the error did not render all proceedings null and void; the evidence was
sufficient for the court to make findings as to omitted factors as well as to support
transfer of juvenile for adult prosecution, and the juveniles conviction in adult
court could be upheld upon entry of the corrected order). Cf. State v. Griffith, 675
So. 2d 911 (Fla. 1996); State v. King, 462 So. 2d 12, 14 (Fla. 1982).
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30 days after the filing of the notice of removal (and in any event, before entry of
final judgment), and (c) courts of appeal generally lack jurisdiction to review a
district courts order granting a motion for remand, and even in the narrow
circumstances in which such orders are reviewable on appeal, the appeal is from
the district courts remand order (i.e., an appeal must be filed within 30 days of
rendition of such an order). All this makes it virtually impossible for preservation
of an objection to a remand order raised in a plenary appeal following a trial in
state court, thus rendering the analogy unworkable. Even if that situation existed,
it would not mean a new complaint would have to be filed and the proceeding
would have to start anew in federal court. Cf. Salery v. U.S., 373 Fed. Appx. 29, 30
n. 1 (11th Cir. 2010) (quoting Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248,
1252 (11th Cir. 1988) (As a general rule, when a case is removed to federal
district court under original jurisdiction, the federal court treats everything done in
the state court as if it had in fact been done in the federal court. Therefore,
assuming an error occurred in the state court, a federal district court may dissolve
or modify injunctions, orders, and all other proceedings which have taken place in
state court prior to removal.) (citations and quotations omitted). See also Savell v.
Southern Ry. Co., 93 F.2d 377 (5th Cir. 1937); Parry v. Bache, 125 F.2d 493 (5th
Cir. 1942).6

Moreover, reconstructing the hypothetical to present a more realistic analogy is of


23

Petitioners third and final analogy is also unsound. They propose that [i]f
an appellate court rules that a jury trial should have been convened, removal of the
claims that required trial by jury after-the-fact will not validate the proceedings.
Petition at 25. However, a decision, judgment, or conviction will not always be
invalidated, and thus all prior proceedings will stand, if there is a determination
that an issue should have been submitted to a jury trial. See Washington v.
Recuenco, 548 U.S. 212, 222 (2006) (Sixth Amendment Blakely error from failure
to submit a sentencing factor to jury, like failure to submit an element to jury, is

no help to Petitioners. In a case removed to federal court in which the district court
denies a motion to remand and the case proceeds to trial in federal court, a finding
by the appellate court that the order denying remand was erroneous does not
necessarily void the proceedings. Even when an objection to an improper removal
is preserved, once a case has been tried, considerations of finality, efficiency, and
economy become overwhelming. Caterpillar Inc., 519 U.S. at 75 (reasoning that
remanding to state court after years of litigation would impose unnecessary and
wasteful burdens on the parties, judges, and other litigants waiting for judicial
attention); see also In re Carter, 618 F.2d 1093, 1099 (5th Cir. 1980) (An order
of remand after entry of final judgment no longer fosters prompt resolution of the
merits of the case, but serves instead only to delay final resolution by subjecting
the litigants to a second, and the state court to a possibly duplicative, trial of the
same matter.). Cf. NewmanGreen, Inc. v. AlfonzoLarrain, 490 U.S. 826 (1989);
Knop v. McMahan, 872 F.2d 1132, 1139 n. 16 (3rd Cir. 1989). Thus, in fact, quite
contrary to Petitioners suggestion, removal of the defectsuch as dismissal of a
nondiverse party that destroyed federal jurisdictioncould be accomplished by the
district court after trial or even by the appellate court on appeal from the trial. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 71-76 (1996); see also American Fire &
Casualty Co. v. Finn, 341 U.S. 6 (1951); and Finn v. American Fire & Casualty
Co., 207 F.2d 114 (5th Cir. 1953). And even where an appellate court reverses the
final judgment and remands to state court, there is no support for the proposition
that the plaintiff is required to re-file the action and start the case anew (as opposed
to a remand for the state court to conduct the trial alone).
24

not structural error that will always invalidate conviction.); see also Fleming v.
State, 88 So. 3d 288 (Fla. 1st DCA 2012). Moreover, even if an appellate court
determines that a case should have been submitted to a jury, the only logical
conclusion is that the proper procedure on remand would be to re-try the case to a
jury, without the need to restart the entire case. Ultimately, there is no authority for
the proposition that in such a case, the voluntary dismissal of the claim for which a
jury trial was required would not render the issue moot and keep undisturbed the
verdict entered after a bench trial on the claim that was properly tried.
None of these analogies actually support Petitioners position and none
overcome the analysis of the application of Section 1305, the law of the case, and
the exposition of the cases confirming the propriety of the proceedings before the
Commission on remand from this Courts opinion in Pfeffer 1.
CONCLUSION
Wal-Mart did not seek a variance on remand. It did not request the
Commission to approve plans with the five (5) loading berths originally
contemplated (pursuant to the Citys longstanding legal interpretation of the Code,
which was invalidated by this Court in Pfeffer 1). Rather, as it has throughout the
extended life of this process, it accommodated its Project to fit within the confines
of the requirements for obtaining a Class II Special Permit by conforming the plans
to provide for only three (3) loading berths, consistent with the Courts opinion in

25

Pfeffer 1. The Commission on remand did precisely as it should have and as was
commanded by this Court. At the de novo hearing on remand, it considered that the
Project was conformed to provide only three (3) loading berths (which the
Commission surely would have required as a condition in approving the Permit if
the plans had not been conformed to so provide by that time) and carefully
examined and adhered to the findings of this Court rejecting all other challenges to
Wal-Marts application (see, e.g., App. D at 38:145:1; 78:1782:5). It thus
approved the Permit that complied with all requirements of the Code under the law
of the case established in Pfeffer 1.
For these reasons, the Petition must be denied.
Respectfully submitted this 9th day of February, 2015.
LYDECKER | DIAZ
Counsel for Wal-Mart Stores East, LP
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
Tel.: (305) 416-3180
Fax: (305) 416-3190
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
E-mail: jcw@lydeckerdiaz.com
Mark A. Emanuele (FBN 541834)
E-mail: mae@lydeckerdiaz.com
Richard Lydecker (FBN 490555)
E-mail: rl@lydeckerdiaz.com
Manuel A. Diaz (FBN 310514)
E-mail: manny@lydeckerdiaz.com

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CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of February, 2015, a copy of the
foregoing was sent via e-mail to:
Paul C. Savage
E-mail: paul@savagelegal.com
Law Offices of Paul C. Savage, P.A.
100 Almeria Avenue, Suite 220
Coral Gables, Florida 33134
Attorney for Petitioners

Victoria Mendez
John A. Greco
Kerri L. McNulty
E-mail: agreco@miamigov.com
E-mail: klmcnulty@miamigov.com
E-mail: slstubbs@miamigov.com
E-mail: tmickens@miamigov.com
44 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
Attorneys for Respondent City of Miami
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)

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: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)

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