LTC 177-2015 MDPL v. CMB MIN 441111111h■ o
■■•111MI 1111=1=11111•11111111•1•111
1915 • 2015
MIAMIBEACH
OFFICE OF THE CITY ATTORNEY LETTER TO COMMISSION
177-2015
TO: Mayor Philip Levine and Members of the ity Co ission
FROM: Raul Aguila, City Attorne ,
O
DATE: April 29, 2015
SUBJECT: Miami Design Preservation League, Inc. v. City of Miami Beach and Miami
Beach Community Church, Inc., and South Beach Tristar, LLC, Case No. 15-
6698 CA (04) (Fla. Cir. Civ. 2015).
Attached for your information is a copy of the Circuit Court Judge Bronwyn Miller's April 28,
2015 order dismissing, with prejudice the Miami Design Preservation League, Inc.'s (MDPL)
second amended complaint for injunctive and declaratory relief. MDPL sought to preclude the
enforcement of the City's settlement agreement with Miami Beach Community Church and
South Beach Tristar, LLC, (Tristar) arguing that the City did not have the authority to settle,
either under its inherent power, or under FLUEDRA, the alternative dispute resolution statute
found at 70.51,Florida Statutes. Judge Miller dismissed all claims,finding that the City had the
authority,both under the statute,and inherently as a governmental entity,to settle disputes. The
judge also found that MDPL lacked standing to bring the claim.
Under the settlement agreement,Tristar was to pay for the City's legal fees associated with any
challenge to the settlement agreement. The City hired Raoul Cantero,former Florida Supreme
Court Justice, now at White& Case,to represent the City. Mr. Cantero, and his partner,Neal
McAliley, prepared the motion to dismiss and argued the motion on Friday, April 24, 015.
Tristar shall be responsible for paying the City's costs associated with the hiring of outside
counsel.
• If you have any questions, please do not hesitate in contact me directly.
Attachment.
We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community.
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
MIAMI DESIGN PRESERVATION FOR MIAMI-DADE COUNTY, FLORIDA
LEAGUE, INC., a non-profit Florida
corporation, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO. 15-6698 CA 04
v.
CITY OF MIAMI BEACH, a Florida
Municipal corporation; MIAMI BEACH
COMMUNITY CHURCH, INC., A Florida
non-profit corporation, and SOUTH
BEACH TRISTAR, LLC, a Florida limited
liability company,
Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
THIS CAUSE, came before the Court for review on April 24, 2015 on City of
Miami Beach, Miami Beach Community Church, Inc., and South Beach Tristar, LLC's
Motion to Dismiss Second Amended Complaint and the Court having reviewed the file,
considered all relevant legal authority, and being otherwise fully advised in the
premises, it is hereby ORDERED and ADJUDGED as follows:
Background:
Petitioner, MIAMI DESIGN PRESERVATION LEAGUE, INC. ("MDPL"), is a
Florida non-profit organization devoted to preserving, protecting, and promoting the
historical architecture of the Miami Beach Historic District. MDPL spearheaded the "Art
Deco Movement," contributing substantially to the revival of Miami Beach. Respondent,
SOUTH BEACH TRISTAR, LLC ("Tristar"), is a real estate developer seeking to erect
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commercial structures on property owned by Respondent, MIAMI BEACH COMMUNITY
CHURCH, INC. ("MBCC").
In the instant suit, MDPL seeks injunctive and declaratory relief against
Respondents, the CITY OF MIAMI BEACH ("Miami Beach"), MBCC, and Tristar.
MDPL's petition for relief revolves around a settlement agreement ratified by the Miami
Beach City Commission pursuant to proceedings instituted by Tristar and MBCC under
the "Florida Land Use and Environmental Dispute Resolution Act" ("FLUEDRA"),
§70.51, Florida Statutes (2014). The relevant chronology preceding the settlement is
detailed below.
MBCC owns property on the southwest corner of Drexel Avenue and Lincoln
Road. A church built in 1920 by Carl Fisher has been in use on the property for the past
ninety-five years. The church is one of the oldest churches on Miami Beach. The
property is located on Lincoln Road Mall, which is included in the National Register of
Historic Places and within Miami Beach's Flamingo Park Historic District.
In 2014, Tristar entered into a ground lease agreement with MBCC which
allowed for Tristar to erect commercial structures on a large, open lawn located on the
property. In return, Tristar would provide MBCC with funding essential to preserve and
maintain the integrity of the structure, interior, and facade of the historic church. On
February 12, 2014, MBCC and Tristar submitted an application to the Miami Beach
Historic Preservation Board seeking the issuance of a certificate of appropriateness in
order to commence construction. HPB File No. 7424. On May 13, 2014, the Historic
Preservation Board heard the development application and unanimously approved the
issuance of a certificate of appropriateness, thus, paving the way for the proposed
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development and construction. MDPL opposed the development application at the
hearing, but the Historic Preservation Board declined to entertain public comment prior
to rendering a decision on the issuance of the certificate.
On June 5, 2014, MDPL petitioned the Historic Preservation Board for a
rehearing of the development approval. On August 12, 2014, the Historic Preservation
Board denied MDPL's petition for rehearing. On September 5, 2014, MDPL filed an
appeal with the Historic Preservation Special Master to challenge the denial of the
petition for rehearing and the development approval. In the appeal, MDPL contended
that MBCC and Tristar failed to disclose a proposed $500,000 donation from Tristar to
MBCC, conditioned upon congregation approval of the development application, in
violation of Miami Beach City Code §118-31, and that the failure of the Historic
Preservation Board to entertain public comment prior to voting regarding the
development order constituted a denial of due process.
On October 31, 2014, the Historic Preservation Special Master entered a lengthy
and thorough Decision and Order. The Special Master remanded the case back to the
Historic Preservation Board with instructions to: (a) conduct a public hearing; (b)
determine whether Miami Beach City Code §118-31 applied to the donation, and if so,
whether the app licants properly complied with the p rovision; and (c) consider de novo
MDPL's Petition for Rehearing. See Decision and Order of Special Master in Case No.
HPSM-14-003 (HPB File No. 7424).
On December 1, 2014, MBCC and Tristar filed a petition for certiorari in the
Miami-Dade Circuit Court, seeking appellate review of the Historic Preservation Special
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Master's Decision and Order. Miami-Dade Appellate Division Case No. 14-473. MDPL
did not file a cross-petition for certiorari.
On the same day, MBCC and Tristar initiated proceedings against the City of
Miami Beach pursuant to FLUEDRA. See §70.51, Fla. Stat. (2014). MDPL was not a
party to the FLUEDRA proceedings. In February, 2015, following a public mediation, the
City of Miami Beach, MBCC, and Tristar reached a negotiated settlement agreement in
the FLUEDRA case. The settlement agreement was contingent upo n approval by the
Miami B eac h City Commission vi a a n enabling resolution at a public hearing. Id. at 4.
The agreement further required the parties to comply with all conditions set forth in the
Historic Preservation Board Certificate of Appropriateness. Id. The agreement
specified that Tristar was responsible for providing a report regarding the structural
integrity of the historic church prior to the commencement of construction. Id. at 4-5. A
provision in the agreement required Tristar to shore and stabilize the historic church for
the duration of the construction and specified the means by which Tristar was required
to accomplish this requirement. Id. at 5. Tristar was further directed to modify its
proposed floor plan to minimize the impact on the view from the historic church. Id.
The settlement agreement contained the following provision:
8. Dismissal of Lawsuit and FLUEDRA Proceedings. The Lawsuit
will be stayed until the issuance of the Building Permit (the date of
issuance of the Building Permit shall also be referred to herein as the
"Effective Date."). On the first business day after the Effective Date,
MBCC and Tristar shall file. a Notice of Voluntary Dismissal Without
Prejudice of the Lawsuit, in the form substantially attached as Exhibit B.
Id.
On March 11, 2015, following a public hearing, the Miami Beach City
Commission approved the settlement agreement. MBCC and Tristar thereafter
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voluntarily dismissed their pending petition for certiorari. As no cross-petition had been
filed, the appellate court was divested of the ability to review the decision of the Miami
Beach Historic Board Special Master.
At issue in the instant action is the provision in the settlement agreement that
purports to nullify and supersede the report of the Special Master. The settlement
agreement sets forth the following:
5. Adjustment of the Special Master Decision and Order. The City
agrees that, upon this Agreement becoming effective, it shall adjust,
supersede, and annul the Special Master Decision and Order (dated
October 31, 2014), as authorized by sec. 70.51(17)(a), Fla. Stat.
Id. at 4. MDPL contends that the City of Miami Beach acted beyond the scope of its
authority in agreeing to be bound by this contractual provision. Thus, it seeks to enjoin
the City of Miami Beach, MBCC, and Tristar from "taking any actions towards the
development of the subject property that are contrary to the Historic Preservation
Special Master's Decision and Order," and seeks a determination of its rights and
remedies under the settlement agreement. MBCC, Tristar, and the City of Miami Beach
have moved to dismiss this matter, alleging: (1) the Miami Beach Historic Board Special
Master exceeded his authority, thus, his order is void as ultra vires, ab initio; (2) MDPL
lacks standing to challenge the settlement; and (3) the collateral challenge to the
settlement agreement violates the separation of powers.
Legal Analysis:
Introduction
In determining the propriety of dismissal in the instant action, the Court must
decide whether the City of Miami Beach had the authority to enter into a settlement
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agreement that purports to nullify and supersede the Special Master Decision, thereby
divesting MDPL of the right of review of the decision of the Historic Board. This
necessarily entails an analysis of FLUEDRA and the applicable provisions of the City of
Miami Beach Charter and Code of Ordinances.
The Propriety of the FLUEDRA Proceedings and Resulting Settlement
In 1995, the Florida legislature enacted §70.51, Florida Statutes, the Florida Land
Use and Environmental Dispute Resolution Act ("FLUEDRA).1 Section 70.51 codified
an alternative dispute resolution process intended to resolve challenges to the actual
merit of a zoning decision, in lieu of judicial review. Scott v. Polk County, 793 So.2d 85,
86 (Fla. 2d DCA 2001). Under §70.51, Florida Statutes, any landowner who believes
that a development order or an enforcement action of a governmental entity is
unreasonable or unfairly burdens the use of the owner's real property may seek
appointment of a special magistrate. See City of Tarpon Springs v. Planes, 30 So. 3d
693 (Fla. 2d DCA 2010); §70.51(3), (17)(a), Fla. Stat. The special magistrate then acts
as a facilitator or mediator to "effect a mutually acceptable solution" in an informal
setting. Id.
The parties to a FLUEDRA proceeding are the affected property owner and the
relevant governmental body. Only contiguous landowners and "substantially affected"
persons may participate in the proceedings as non-parties. §70.51(12), Fla. Stat. In
order to establish standing as a "substantially affected person," there must be a
1 9 Y p
This legislation was part of a two-part property rights statute. "On May 18, 1995,
Governor Chiles signed the Bert J. Harris, Jr. Private Property Rights Act into law. Fla. Stat.
Chapter 70 (1995)." Bloomingdale Dev., LLC v. Hernando County, No. 8:07—cv-575—T-30MAP,
2009 WL 347786, at *5 (M.D.Fla. Feb. 11, 2009). This Act created "a new cause of action to
provide compensation to a landowner when the actions of a governmental entity impose an
'inordinate burden' on the owner's property, without rising to the level of a regulatory taking." Id.
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submission of "oral or written testimony, sworn or unsworn, of a substantive nature,
which stated with particularity, objections to or support for any development order or
enforcement action at issue . .. ." Id.
FLUEDRA, by its very terms, provides a means by which a property owner may
expeditiously invoke alternative dispute resolution proceedings in order to obtain the
right to develop its property. The property owner is not required to exhaust judicial
remedies prior to invoking FLUEDRA; FLUEDRA is properly invoked when nonjudicial
local administrative appeals are exhausted, or within four months after issuance of the
development order, even if nonjudicial appeals have not been exhausted.
§70.51(10)(a), Fla. Stat.
In the instant case, following the release of the decision of the Historic
Preservation Special Master, MBCC and Tristar properly and timely invoked FLUEDRA
proceedings. Although MDPL sets forth an allegation that it was denied the right to
participate in the FLUEDRA mediation proceedings, it has failed to allege that it
"indicated a desire to receive notice of any subsequent special magistrate proceedings
occurring on the development or enforcement action," as required for non-party
participation under FLUEDRA. §70.51(5)(b), Fla. Stat. Moreover, the Second Amended
Complaint is devoid of any allegation that MDPL sought to intervene in the proceedings
as a non-party "substantially affected person" and complied with the FLUEDRA non-
party testimonial requirements.
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It is noteworthy that the FLUEDRA mediation process is public, thus fully
transparent.2 Finally, non-parties are afforded an additional means of due process in
that any proposed settlement must necessarily be approved by the Board of City
Commissioners following a public hearing.3
MDPL further contends that the certificate of appropriateness at issue in the
instant case did not qualify as a "development order" within the definition of FLUEDRA,
thus, proceedings were improperly invoked. The Court disagrees with this analysis.
FLUEDRA contains the following definition:
"Development order" means any order, or notice of proposed state or
regional governmental agency action, which is or will have the effect of
granting, denying, or granting with conditions an application for a
development permit, and includes the rezoning of a specific parcel . . .
§70.51(2)(a), Fla. Stat. "Development permit" is to be broadly construed, including:
Any building permit, zoning permit, subdivision approval, certification,
special exception, variance, or any other similar action of local
government, as well as any permit authorized to be issued under state law
state, regional, or local government . . .
§70.51(2)(b). FLUEDRA further provides: "This section shall be liberally construed to
effect fully its obvious purposes and intent . . ." Id. at 29.
As the acquisition of a certificate of appropriateness by the developer is a
necessary prerequisite to obtaining a permit under the Miami Beach Code, the issuance
of certificate of appropriateness necessarily will "have the effect" of "granting, denying,
2 FLUEDRA "does not expressly subject the proceedings to Florida's Sunshine Law."
Mark S. Bentley, Understanding the Florida Land Use and Environmental Dispute Resolution
Act, 37 Nova L. Rev. 381, 414 (2008).
3 In the instant case, MDPL did indeed lodge an objection to the ratification of the
settlement agreement to the Board of City Commissioners; nonetheless, the agreement was
approved.
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or granting with conditions" the permit application. Moreover, the certificate of
appropriateness falls squarely within the definition of "development permit," as it is a
"certification," within §70.51(2)(b), Florida Statutes.
By seeking injunctive relief following an approved resolution by the Board of City
Commissioners, Petitioner essentially requests that the Court declare the application
procedure and appeals process circumscribed by the Miami Beach municipal code
superior to the alternative dispute resolution process circumscribed by FLUEDRA. The
Court, having examined both, concludes that the two processes create independent
avenues for owners to proceed forward with proposed development.
Under the City of Miami Beach municipal code, a property owner seeking a
certificate of appropriateness for historically designated properties must file an
application with the Historic Review Board. In all applications involving non-city owned
properties, the Historic Review Board has full and final authority to grant or deny an
application. The appeals process relating to such decisions rendered by the Historic
Review Board is further circumscribed by ordinance. The appeal of a Historic Review
Board decision is filed with the Historic Review Board Special Master and the decision
of the Historic Review Board Special Master may be reviewed by certiorari with the
Miami-Dade Circuit Court serving in its appellate capacity.
Under FLUEDRA, the purportedly aggrieved property owner may file its intent to
invoke special magistrate proceedings. Proceedings are public, but non-parties may
not fully participate. However, any resolution proposed by the parties or the special
magistrate requires commission approval, which necessarily entails a public hearing
wherein interested parties have the right to voice objections. By its explicit terms, in the
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event that a governmental entity accepts the recommendation of a special magistrate
with regards to proposed "modification, variance or special exception to the application
of statutes, rules, regulations, or ordinances as they would otherwise apply to the
subject property," the property owner is relieved of the obligation to undergo a
duplicative municipal process. See §70.51(21)(a), Fla. Stat. Thus, a resolution under
FLUEDRA necessarily exempts a property owner from duplicating the previous
application process that culminated in the alternative dispute resolution process.
Moreover, FLUEDRA does not contemplate a judicial cause of action by a non-
party. See §70.51(24), Fla. Stat. ("The procedure created by this section is not itself,
nor does it create, a judicial cause of action. Once the governmental entity acts on the
special magistrate's recommendation, the owner may elect to file suit in a court of
competent jurisdiction."); see also Mark S. Bentley, Understanding the Florida Land Use
and Environmental Dispute Resolution Act, 37 Nova L. Rev. 381, 417 (2008) ("The
Dispute Resolution Act specifically states that the special magistrate proceedings do not
constitute nor do they create, a judicial cause of action. Therefore, it appears that there
is no point of entry to challenge the proceedings and their end result by any party or
participant who may disagree with the outcome.").
Although many municipalities have adjusted their procedures in consideration of
the enactment of FLUEDRA, Miami Beach does not appear to have enacted any
specific ordinances regarding adjusted procedure. Further, FLUEDRA provides:
This section shall be liberally construed to effect fully its obvious purposes
and intent, and governmental entities shall direct all available resources
and authorities to effect fully the obvious purposes and intent of this
section in resolving disputes. Governmental entities are encouraged to
expedite notice and time-related provisions to implement resolution of
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disputes under this section. The procedure established by this section
may be used to resolve disputes in pending judicial proceedings, with the
agreement of the parties to the judicial proceedings, and subject to the
approval of the court in which the judicial proceedings are pending. The
provisions of this section are cumulative, and do not supplant other
methods agreed to by the parties and lawfully
§70.51(29), Fla. Stat. (2014).
Considering these principles in conjunction with the Miami Beach Code of
Ordinances, the Court concludes that FLUEDRA merely serves as an alternative route
to pursuing the appellate process for a property owner encountering municipal
resistance to proposed development. Moreover, as FLUEDRA proceedings do not
create a judicial cause of action, the invocation of FLUEDRA proceedings necessarily
� P 9 Y
superseded the special master process delineated by the Miami Beach Code.4
Finally, it is axiomatic that municipal ordinances are inferior to laws of the state
and must not conflict with any controlling provision of a statute. City of Palm Bay v.
Wells Fargo Bank, N.A., 114 So. 3d 924 (Fla. 2013). In order to carry out the purpose,
intent, and express provisions of FLUEDRA, a city must have the authority to waive
internal review of a pending development application.
In sum, the Court concludes that the property owner properly and timely invoked
alternative dispute resolution proceedings and the City of Miami Beach thereafter
negotiated an authorized settlement agreement in accord with the stated intent of the
relevant statutory provisions.
4 It is important to note that under the unique circumstances presented in this case, the
result of the FLUEDRA proceedings was consistent with the unanimous "final" decision
rendered by the Miami Beach Historic Preservation Board.
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Standing
Tristar, MBCC, and the City of Miami Beach further contend that MDPL lacks
standing to enjoin the settlement agreement. MDPL alleges that it has special standing
to pursue the instant case by virtue of its administrative standing under the Miami Beach
Code of Ordinances. The Court disagrees.
In recognition of its numerous contributions to the revival of Miami Beach, MDPL
was endowed with limited administrative standing under Miami Beach Code §118-537.
MDPL's standing is limited to: (1) the right to petition the Historic Preservation Board for
rehearing; (2) the right to appeal any Historic Preservation Board decision to an Historic
Preservation Special Master appointed by the City Commission; and (3) the right to file
a petition for certiorari in the circuit court seeking appellate review of any decision
rendered by the Historic Board Special Master. See Miami Beach Code §118.537(a)(1)
and (b)(1).
"This action for declaratory judgment and injunctive relief is dependent on a
showing that there is a bona fide dispute with an actual present need for judicial
intervention." Florida Home Builders Ass'n, Inc. v. City of Tallahassee, 15 So. 3d 612,
613 (Fla. 1st DCA 2009); citing Spencer v. Gonzalez, 731 So. 2d 111 (Fla. 1st DCA
1999); Britamco Underwriters, Inc. v. Central Jersey Investments, Inc., 632 So. 2d 138
(Fla. 4th DCA 1994). "Standing presents 'a threshold inquiry' that must be made at the
commencement of the case." McCarty v. Myers, 125 So. 3d 333, 336 (Fla. 1st DCA
2013), citing Olen Props. Corp. v. Moss, 981 So. 2d 515, 517 (Fla. 4th DCA 2008).
Typically, a nonparty to a settlement agreement has no standing to enforce it.
Gallagher v. Dupont, 918 So. 2d 342, 346 (Fla. 5th DCA 2006). "A person not a party to
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nor in privity with a contract has no right to enforce it." Id., citing White v. Exchange
Corp., 167 So. 2d 324, 326 (Fla. 3d DCA 1964). "Generally, a private citizen is
precluded from filing a taxpayer complaint to challenge government action unless the
private citizen alleges and proves a `special injury,' which is an injury that is different
from that of the general public." Smith v. City Of Fort Myers, 944 So. 2d 1092, 1094
(Fla. 2d DCA 2006), citing N. Broward Hosp. Dist. V. Fornes, 476 So. 2d 154 (Fla.
1985); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). "This has been termed
the `Rickman rule' or `special injury rule." Id. Specifically, the Rickman rule provides:
[I]n the event an official threatens an unlawful act, the public by its
representatives must institute the proceedings to prevent it, unless a
private person can show a damage peculiar to his individual interests in
which case equity will grant him succor.
Henry L. Goherty & Co. v. Joaquim, 146 Fla. 50, 200 So. 238, 239 (1941), citing
Rickman, 73 Fla. 152. In the context of municipal action, Florida courts have held:
[I]n order to sustain a complaint for relief against threatened or
consummated municipal action such as the creation of a nuisance or the
blocking of a street the injury suffered by the complaining individual must
be special and peculiar to himself and not merely different in degree from
that suffered by the remainder of the community.
Boucher v. Novotny, 102 So. 2d 132, 134-35 (Fla. 1958).
In the instant case, MDPL has failed to allege any peculiar or "special injury" in its
Second Amended Complaint. It asserts that it is a non-profit organization comprised of
citizens dedicated to ensuring historic preservation and architectural integrity and its
allegation of standing is premised upon its special status at the administrative level.
"Appreciation for historical and architectural [artifacts] does not rise to the level of injury
different from that of the public at large for standing purposes." Niagara Preservation
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Coalition, Inc. v. New York Power Authority, 121 A.D. 3d 1507, 1510, 994 N.Y.S. 2d
487, 492, 2014 N.Y. Slip Op. 06694 (quoting Matter of Heritage Coalition v. City of
Ithaca Planning & Dev. Bd., 228 A.D. 2d 862, 864, 644 N.Y.S. 2d 374, Iv. denied 88
N.Y. 2d 809, 648 N.Y.S. 2d 878, 671 N.E. 2d 1275). Moreover, standing at the
administrative level does not ensure standing in ensuing judicial proceedings. See
O'Connell v. Florida Dep't of Community Affairs, 874 So. 2d 673, 675 (Fla. 4th DCA
2004) ("Standing on appeal requires more than standing at the administrative level.").
As the First District Court of Appeal explained in Martin Cnty. Conservation Alliance v.
Pp p Y
Martin Cnty.,73 So. 3d 856, 862 (Fla. 1st DCA 2011):
The fact that a person may have the requisite standing to appear as a
party before an agency at a de novo proceeding does not mean that the
party automatically has standing to appeal. The [Administrative
Procedures Act's] definition of a party recognizes the need for a much
broader zone of party representation at the administrative level than at the
appellate level. For example, in rulemaking, a large number of persons
may be invited or permitted by the agency to participate as parties in the
proceeding, so as to provide information to the agency... [A] person who
participates in such a proceeding by authorization of a statute or rule, or
by permission of an agency, many not necessarily possess any interests
which are adversely, or even substantially, affected by the proposed
action.
Id. rev. dismissed 122 So.3d 243 (Fla. 2013) (quoting Daniels v. Fla. Parole & Probation
Comm'n, 401 So.2d 1351, 1354 (Fla. 1st DCA 1981), affd. sub. nom., Roberson v. Fla.
Parole & Probation Comm'n, 444 So.2d 917 (Fla.1983)); see also Fla. Chapter of the
Sierra Club v. Suwannee Amer. Cement Co., Inc., 802 So. 2d 520 (Fla. 1st DCA 2001)
(Rejecting an organization's assertion of appellate standing based upon administrative
standing in the absence of a showing that its membership suffered injury beyond a
generalized concern for the preservation of the environment). Applying this authority to
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the pleadings in the instant case, the Court concludes that the administrative standing
alleged by MDPL is insufficient to sustain the instant action.
MDPL further contends that if the terms of the settlement are permitted to stand,
its "special standing to appeal [Historic Preservation Board] decisions to the Historic
Preservation Special Master will be rendered meaningless." In order to establish
standing, mere speculation regarding future injury is insufficient. See Florida Indus.
Power Users Group v. Graham, 126 So. 3d 1056 (Fla. 2013) ("[T]o have standing to
appeal, an organization must demonstrate that it is adversely affected by the decision
and acknowledging that mere speculation regarding future adverse impacts is
insufficient"), citing Martin Cnty. Conservation Alliance v. Martin Cnty., 73 So. 3d at 856,
862-64; see also Conservation Alliance of St. Lucie County, Incl. v. Fla. Dep't of
Environmental Protection, 144 So. 3d 622, 624 (Fla. 2014) ("This case . . . involves a
third-party challenge to a settlement agreement. Accordingly, we hold that Appellants
do not have standing to challenge the settlement agreement...."). Thus, the Court
concludes that this assertion, too, is insufficient to establish the allegation of injury
required to proceed.
Separation of Powers
Moreover, the Court concludes that the Miami Beach City Commission acted
within its inherent authority in opting to circumvent the possibility of protracted litigation
by entering into a settlement agreement under FLUEDRA. The Miami Beach City
Charter reserves to the Miami Beach City Commission "[a]II powers of the City" not
specifically delegated to the Mayor, the City Manager, City Attorney, and City Clerk.
§2.03, City of Miami Beach Charter. The City Commission has the "power to do and
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perform all things necessary for the government of the City not inconsistent with the
constitution of the State of Florida, the Constitution and laws of the United States, and
the terms and provisions of th[e] Charter." Id. This necessarily includes the ability to
settle litigation. See Williams v. Public Util. Protective League, 130 Fla. 603, 178 So.
286 (1938) ("The power of a public body to settle litigation is incident to and implied from
its power to sue and be sued."); See also Kruer v. Board of Trustees of Internal Imp.
Trust Fund of State of Fla., 647 So. 2d 129 (Fla. 1st DCA 1994) ("At the same time, the
power of a public body to settle litigation is incident to and implied from its power to sue
and be sued."); Abramson v. Florida Psychological Association, 634 So.2d 610 (Fla.
1994) (Abramson II), quashing the decision of the court in Abramson v. Florida
Psychological Association, 610 So. 2d 447 (Fla. 1st DCA 1992) (Abramson I) ("In
Abramson I, the First District Court of Appeal affirmed a mandatory injunction
invalidating actions of the Florida Department of Professional Regulation and the Florida
Board of Psychological Examiners taken pursuant to a settlement agreement disposing
of court litigation involving the department and board and individuals seeking licensure
to practice psychology in the state. In so ruling, it applied the principle that an agency
may not act beyond the limits of its delegated legislative authority, and that this
limitation should pertain even where an agency has entered into a settlement
agreement in court litigation. Reversing, the Florida Supreme Court declined to answer
this court's certified question by formulating a general rule that would be applicable
under all circumstances, but concluded, under the facts presented, that the district
court's decision should be reversed").
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Although the Miami Beach City Code allows all parties, including the City
Manager, to seek review of a Historic Preservation Board Special Master by petition for
certiorari, the City Code does not expressly prohibit the Miami Beach City Commission
from disregarding the decision of a Special Master. Miami Beach Code §118-537(b)(4).
MDPL cites Atlantic Shores Resort, LLC v. 507 South Street Corp., 937 So. 2d
1239 (Fla. 3d DCA 2006) for the proposition that the Miami Beach Commission lacked
authority to nullify or modify the Historic Preservation Board Special Master's decision
and order. The relevant facts in Atlantic Shores, as set forth by the Third District Court
of Appeal are as follows:
The Developer seeks to redevelop a hotel property located in the Historic
District of the City of Key West. 507 South Street Corporation ("the
Objector") opposes the redevelopment. As the property in question is
located in the Historic District of the City of Key West, it is subject to a
particular regulatory structure, and governed by the Historic Architectural
Review Commission ("HARC"). See City of Key West, Fla., Charter §
1.06(a); FN1 City of Key West, Fla., Code of Ordinances § 90-126.FN2 In
order to erect a new structure in a historic district, a developer must first
obtain a certificate of appropriateness from HARC. See City of Key West,
Fla., Code of Ordinances § 102-152. HARC evaluates applications for
certificates of appropriateness based upon guidelines that it issues
concerning factors including design, scale, massing, and appearance. See
City of Key West, Fla., Code of Ordinances § 102-155(a). One of the
guidelines that HARC issued for new construction in the historic district is
that a building's height may not exceed 2.5 stories. See City of Key West
Historic Architectural Guidelines at 38. HARC's decisions regarding
certificates of appropriateness are final and such decisions may be
appealed to a special master. See City of Key West, Fla., Code of
Ordinances § 90-428; City of Key West, Fla., Charter § 1.06(b). The
special master's decision, in turn, is reviewable by the circuit court. See
City of Key West, Fla., Code of Ordinances § 90-434.
As the property the Developer wishes to redevelop is located in the
Historic District of the City of Key West, the Developer applied for a
certificate of appropriateness from HARC. The Objector, however, sought
to block the redevelopment, arguing that because the redevelopment plan
calls for one of the buildings to be elevated, the redevelopment plan
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violates HARC guidelines limiting building height to 2.5 stories.
Specifically, the Objector asserts that the open space beneath the building
constitutes a story, and if the property is constructed as designed, that
particular building would be 3.5 stories, and thus, violate the 2.5 story
height restriction. The Developer's position is that many of the buildings in
Key West are required to be elevated for flood safety, the open space
beneath the building is not a story, the building in question is only 2.5
stories, and thus, the redevelopment plan is in compliance with the
applicable HARC guidelines. HARC found in favor of the Developer and
issued a certificate of appropriateness. The Objector unsuccessfully
appealed the issuance of the certificate to the special master, based upon
the same arguments it had made to HARC, that the redevelopment plan
violates the 2.5 story guideline because the open space beneath the
building is a story. Instead of appealing the decision of the special master
to the Circuit Court as provided in section 90-434 of the Key West Code
of Ordinances, the Objector waited until the Developer presented its
redevelopment plan to the City Commission, once again raising the same
objections it had made to HARC and the special master: that the building
exceeded the 2.5 story limitation because the open space beneath the
building should be considered a story. The City Commission was equally
unpersuaded by the Objector's arguments and passed a resolution
approving the proposed plan.
The Objector filed a petition for writ of certiorari with the Circuit Court,
challenging the City Commission's resolution, arguing that the
redevelopment plan violated the 2.5 story limitation because the open
space beneath one of the buildings should be considered a story. The
Developer, however, claimed that the Objector's arguments were barred
by res judicata and/or collateral estoppel; the open space beneath the
building is not a story; and the redevelopment plan does not violate the 2.5
story limitation. The Circuit Court initially denied the petition for writ of
certiorari, but after a motion for rehearing, granted the writ and quashed
the City Commission's resolution approving the redevelopment plan. The
Circuit Court found that the issues before it were not precluded by res
judicata or collateral estoppel, and that the redevelopment plan violates
the 2.5 story limitation. The Developer now seeks quashal of the writ of
certiorari granted by the Circuit Court.
Id. at 1241-42.
As the Atlantic opinion makes clear, under the Key West Charter, the exclusive
remedy to obtain review of a decision of the historic board is through a special master.
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A review of the special master's decision is thereafter confined to a petition for certiorari
with the appellate court. In Atlantic, the special master affirmed the decision of the
preservation board, issuing a certificate of appropriateness for development. Instead of
seeking appellate review of the decision of the special master, the objector later re-
raised its objections in subsequent proceedings before the City Commission. Unmoved
by the objections, the City Commission passed a resolution approving the proposed
development. The objector than sought certiorari review in the circuit court, challenging
the resolution of the City Commission. Judge Rothenberg, writing for the Third District
Court of Appeal, found that under the City of Key West Charter and Code of
Ordinances, the decision of the special master was a final order; thus, the subsequent
certiorari action was precluded by the doctrine of collateral estoppel.
The facts in the instant case are distinguishable. In this case, the Historic
Preservation Board granted the application for the certificate of appropriateness. The
Special Master did not address in his decision and order whether or not a certificate of
appropriateness should be denied or granted. Rather, he remanded the case back to
the Historic Preservation Board for further proceedings, including a de novo
consideration of the motion for rehearing. Thus, there was no "final decision" regarding
the propriety of the issuance of the certificate of appropriateness.
Additionally, Atlantic did not involve a FLUEDRA proceeding. A judicial finding
that the decision to grant or deny a certificate of appropriateness cannot be properly
challenged under FLUEDRA would vitiate the purpose and intent of the statute.
Moreover, as discussed more fully above, FLUEDRA expressly provides a mechanism
by which a local government may ratify a settlement that fails to replicate the applicable
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land-use approval process. See §70.51(1)(a), Fla. Stat. (providing that a landowner is
not required to duplicate the pervious process to effectuate a settlement); See also St.
Johns/St. Augustine Committee, etc. v. City of St. Augustine, 909 So. 2d 575 (Fla. 5th
DCA 2005) (Affirming trial court's order dispensing with the requirement to resubmit an
application to the planning and zoning board prior to the approval of a special
magistrate's recommendation under FLUEDRA).
Further, under the provisions of the Key West Charter, at issue in Atlantic, the
Key West City Commission cedes power to the Historic Architectural Review
Commission. Id. at FN 1 ("Section 1.06 of the Charter provides that "[t]here shall be an
Historic Architectural Review Commission whose duties shall be prescribed by
ordinance.").
In the instant case, the Miami Beach Charter does not contain a provision ceding
power from the Miami Beach City Commission to the Historic Preservation Board
Special Master; thus, the ultimate power to approve or deny any development
application remains vested in the Miami Beach City Commission. See Simpson v. State
ex. rel. Perdue, 47 So. 2d 83, 785 (Fla. 1950) (Holding that an ordinance enacted by the
City of Miami Beach purporting to vest the power of appointment of officers in the Chief
of Police was inconsistent with the Miami Beach Charter and the City Manager could
not be deprived of a power set forth in the Charter by an ordinance).
Finally, "[U]nder the constitutional doctrine of separation of powers, the judicial
branch must not interfere with the discretionary functions of the legislative or executive
branches of government absent a violation of constitutional statutory rights." Trianon
Park Condo. Ass'n v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985). "[T]he City's
15-6698 CA 04
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discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning
enforcement action is analogous to a prosecutor's discretion to file, prosecute, abate,
settle, or dismiss a criminal or civil lawsuit." Detournay v. City of Coral Gables, 127 So.
3d 869, 873 (Fla. 3d DCA 2013), citing Trianon Park, 468 So. 2d at 922 (Fla.1935); see
also Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d 1121 (Fla. 4th DCA
2007) (Denying a petition for certiorari when the trial judge found the city had the
authority to settle litigation when such settlement was made in good faith without -
evidence of collusion or jeopardy to the health or welfare of the citizens, and in the best
interests of the citizens); citing, Kruer v. Board of the Internal Improvement Trust Fund,
647 So.2d 129 (Fla. 1st DCA 1994). In the instant case, the Second Amended
Complaint is devoid of any allegation that the City of Miami Beach acted in bad faith,
colluded with the developer, or that the terms of the settlement impact the health or
welfare of the citizenry. Moreover, the parties acted within the confines of the
FLUEDRA statutory scheme and all non-parties were afforded due process through
public hearing prior to the ratification of the settlement agreement.
Propriety of the Decision of the Special Master
Defendants further contend that the decision of the Historic Preservation Special
Master was ultra vires, ab initio, alleging that he exceeded the permissible scope of
review in rendering his decision and order.5 The Court declines to address the merits of
5 "Black's Law Dictionary defines an `ultra vires' act as one that is `unauthorized; beyond
the scope of power allowed or granted by a corporate charter or by law.- Liberty Counsel v.
Florida Bar Bd. Of Governors, 12 So.3d 183, 191 (Fla. 2009) (quoting Black's Law Dictionary
1559 (8th ed. 2004)).
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this argument, as the issues previously presented are dispositive of the Motion to
Dismiss.
Conclusion:
In conclusion, it bears note that once a property owner initiates FLUEDRA
proceedings, governmental entities are not only required to participate in the mediation
process, but must additionally share equally in the cost of the proceedings. §70.51(28),
Fla. Stat. "Although it is true that FLUEDRA allows governmental entities to establish
procedures for sharing special magistrate fees and expenses, costs of providing notice,
and effecting service of the request for relief, the local government's share of expenses
is unbudgeted and borne by all taxpayers." Craig H. Coller & Dennis A. Kerbel,
FLUEDRA: Flawed, but Fixable? Fla. Bar Journal, Vol. 86, NO. 6 (June, 2012). Thus, to
deprive a municipality of the right to effect a mutually agreeable settlement under
FLUEDRA would necessarily expose the municipality to the prospect of incurring
mounting legal bills without recourse.
Florida courts have recognized that local governments have the right to set
financial priorities with regard to their involvement in litigation. See e.g. Carter v. City of
Stuart, 468 So. 2d 955, 957 (Fla. 1985) ("The amount of resources and personnel to be
committed to the enforcement of this ordinance was a policy decision of the city. The
city has the right to set its priorities in reference to law enforcement."). As was
eloquently penned by Judge Logue, writing for the Third District Court of Appeal, in
Detournay:
[W]e must defer to the City's right to exercise its discretion to seek a
settlement that might accommodate the concerns of all parties. In this
situation, the courts have no role in advising or directing a government
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when, if, and how to maintain an administrative enforcement action: the
role of the courts is limited to adjudicating any such action when it is
properly at issue before them. To the extent that the Homeowners seek to
have the City desist in its settlement efforts and instead vigorously
prosecute the enforcement actions, they need to knock on the doors of
city hall, not the courthouse.
DeTournay, 127 So. 3d at 874.
In the instant case, although the Court is cognizant of MDPL's significant
contributions to the Miami Beach historical architectural landscape and its articulated
concerns regarding future disputes, the Miami Beach City Commission acted within its
authority in entering into the settlement agreement with Tristar and MBCC. Moreover,
MDPL was endowed with dual remedies under FLUEDRA: it had the right to seek
intervention in the FLUEDRA proceedings; and it had the right to communicate its
objection to the proposed settlement agreement to the Miami Beach City Commission.
Thus, the Court concludes that this matter does not present a controversy that may be
properly adjudicated in the Circuit Court.
WHEREFORE, Plaintiff's Second Amended Complaint is hereby DISMISSED
with prejudice. Defendants shall go hence without day.
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 04/28/15.
opo
BRONWYN C. MILLER
CIRCUIT COURT JUDGE
15-6698 CA 04
- Page 24 of 24 ,
FINAL ORDERS TO ALL PARTIES
S A S O
SRS DISPOSITION NUMBER 12
THE COURT DISMISSES THIS CASE AGAINST
ANY PARTY NOT LISTED IN THIS FINAL ORDER.
OR PREVIOUS ORDER(S).THIS CASE IS CLOSED •
AS TO ALL PARTIES.
Judge's Initials BCM .
The parties served with this Order are indicated•`,in the accompanying 11th Circuit email
confirmation which includes all emails provided:'by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or-
hand-delivery, to all parties/counsel of record for whom service is not indicated by the .
accompanying 11th Circuit confirmation, and-file proof of service with, the Clerk of
Court.
Signed original order sent electronically to the.Clerk of Courts for filing in the Court file.
•
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