LTC 173-2021 re YTech 180 Units v CMBDocuSign Envelope ID: 7D121489-0938-4CA8-BD61-54B30C223B58
173-2021
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Raul J. Aguila, City Attorney
DATE: April 27, 2021
SUBJECT: Favorable Ruling in YTech-180 Units Miami Beach Invt., LLC v. City of Miami Beach
I am pleased to advise the City Commission, in my first Letter to Commission upon my return to service
as City Attorney, of an important ruling in favor of the City in YTech-180 Units Miami Beach Investment,
LLC v. City of Miami Beach. On April 13, 2021, a panel of the Eleventh Judicial Circuit Court, Appellate
Division, withdrew its prior opinion, granted the City’s motion for rehearing, and dismissed the case for
lack of jurisdiction. A copy of the opinion is attached as Exhibit A.
This case arises from the City’s adoption of Ordinance 2018-4198 (the “Ordinance”) to expand the
boundaries of the North Shore Historic District to include within its boundaries those properties located
proximate to the Tatum Waterway (the “Tatum Waterway Expansion”). For your ease of reference, the
area at issue is generally bounded by 77th Street on the South, Hawthorne Avenue and Crespi Boulevard
on the West, 87th Street on the North, and Tatum Waterway Drive and Byron Avenue on the East. It is
illustrated on the graphic below:
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Letter to Commission
April 27, 2021
Page 2 of 3
I. The Short Version of the Long History of the North Shore Historic District
A deep history surrounds the City Commission’s decision to protect the historic resources located within
the Tatum Waterway Expansion. We summarize it for you here. In 1999, the City’s Planning Department
commenced a master planning process that, through public workshops, focus group meetings, public
hearings, and a website, engaged the North Beach community in an effort to build consensus regarding
the components and objectives of a to-be-developed North Beach Master Plan. As part of this policy-
formulation process, the City solicited feedback concerning historic preservation strategies, including
proposals to champion the preservation and adaptive reuse of post-war Miami (MiMo) architecture. As
part of the exercise, the City explored the creation of historic and conservation districts as the means to
accomplish this goal. By 2001, consensus developed within the City to protect North Beach’s unique and
historic character. On November 18, 2009, the North Shore National Register Historic District was listed
by the Federal Government in the National Register of Historic Places.
Momentum developed to protect North Beach’s historic resources by the creation of local historic districts.
In 2014, the Historic Preservation Board (“HPB”) directed the Planning Department to prepare formal
Historic Designation Reports for the proposed designation of the North Shore and Normandy Isles local
historic districts. As the local district creation process continued to gain steam, the Commission retained
Dover Kohl & Partners to draft and establish the North Beach Master Plan (“NoBe Plan”). The City
organized a North Beach Master Plan Steering Committee (“Steering Committee”) and, in conjunction
with Dover Kohl, the City conducted substantial public outreach to obtain public input on the NoBe Plan.
The outreach was nothing short of extraordinary. There was a week-long design charette (with more than
1,000 participant visits), public workshops, and a 40-person bus tour of North Beach live-streamed over
the internet and posted on the City’s YouTube channel.
The City Commission adopted the NoBe Plan following this robust public input. Importantly, the NoBe
Plan recommended the creation of the North Shore Historic District including the Tatum Waterway
properties. Nevertheless, in December 2016, a prior City Commission modified the boundaries of the
proposed North Shore district by removing the portion of the district along Tatum Waterway Drive and
Crespi Boulevard prior to its adoption of the North Shore Historic District.
The great momentum to protect the Tatum Waterway persisted. On September 25, 2017, the City
Commission resolved to implement the NoBe Plan by including the Tatum Waterway properties within
the North Shore Historic District. Thereafter, the HPB and Planning Board both unanimously
recommended approval and the City Commission adopted the Ordinance to fold the Tatum Waterway
properties into the North Shore Historic District. The City Commission vote was unanimous.
II. The Challenge, The Appeal, The Decision
Ytech-180 Units Miami Beach Investment, LLC – a property owner along the Tatum Waterway (the
“Owner”) – filed a Petition for Writ of Certiorari to challenge the City’s adoption of the Ordinance. In
summary, the Owner challenged the process by which the City adopted the Ordinance. The Owner
asserted that the City denied procedural due process and departed from the essential requirements of
the law when it adopted the Ordinance without following the City’s quasi-judicial procedures. The City
moved to dismiss the challenge upon the contention that the Ordinance represents a legislative action
by the City’s legislative body adopted through the legislative process. Because legislative action cannot
be challenged by certiorari, the City argued for dismissal based on lack of certiorari jurisdiction. The City
combined a comprehensive response on the merits together with its motion to dismiss.
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Letter to Commission
April 27, 2021
Page 3 of 3
The circuit court denied the City’s motion to dismiss and rendered an opinion in favor of the Owner and
against the City. The circuit court ruled that the City denied the Owner of procedural due process and
violated the notice provisions of its own Code. In response, the City filed a motion for clarification and
rehearing. The Owner responded. To guard against the loss of historic resources within the Tatum
Waterway Expansion, the City recommenced the adoption process in an abundance of caution
concurrent with its efforts to reverse the court’s opinion. That process is on -going and the resources
within the Tatum Waterway Expansion have been protected by that process.
After months of consideration, we are quite pleased to report that the circuit court reversed its prior
position, withdrew its prior opinion, and dismissed the Petition for Writ of Certiorari for lack of jurisdiction.
The ruling is particularly important in that it affirms the City’s position that the designation of the Tatum
Waterway Expansion was a legislative action within the City Commission’s legislative discretion.
In addition to protecting the historic resources of the Tatum Waterway, the ruling is a victory for
the City Commission, in that the dismissal affirmed the City Commission’s ability to enact
legislation through the legislative process, without implicating the rules applicable to quasi-
judicial proceedings. In defending the City Commission’s legislative actions in this matter, this
litigation was ably handled by Nick Kallergis, First Assistant City Attorney, and Jeffrey S. Bass,
Special Counsel to the City.
1
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Filing # 124788754 E-Filed 04/13/2021 08:31:10 AM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
YTECH-180 UNITS MIAMI CASE NO. 18-184 AP 01
BEACH INVESTMENT, LLC,
Petitioner, APPELLATE DIVISION
v.
CITY OF MIAMI BEACH,
Respondent.
/
ORDER WITHDRAWING OPINION DATED AUGUST 31, 2020,
GRANTING MOTION FOR REHEARING AND DISMISSING THIS CASE
FOR LACK OF JURISDICTION
PER CURIAM.
THIS MATTER having come before the Court on Respondent’s Motion for
Rehearing (the “Motion”) and this Court having read the Motion and Response in
Opposition, examined the case file and being otherwise fully advised in the premises,
it is hereby,
ORDERED AND ADJUDGED:
Respondent’s Motion is GRANTED. This case is DISMISSED.
On August 31, 2020, a panel of this Court1 issued its opinion granting a
petition for writ of certiorari and quashing an ordinance enacted by the City of Miami
1 Judge Ramiro Areces did not participate in the oral argument. Judge Areces replaces Judge
Alexander Bokor who was appointed to the Third District Court of Appeal sometime after this
Court issued its opinion.
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2 Respondent’s Motion for Clarification is moot.
2
Beach. On review of Respondent’s Motion, this Court WITHDRAWS its prior
opinion, GRANTS rehearing and DISMISSES this case for lack of jurisdiction.2
Respondent, City of Miami Beach (the “City” or “City Commission”)
contends this Court should rehear and reconsider its 2020 Opinion because this Court
overlooked the “want of jurisdiction it creat[ed].” Specifically, Respondent
contends this panel, as then-previously constituted, found the City’s “process
provided by the Code for the adoption of Historic Designation status is legislative in
character,” but, nevertheless, proceeded to make a determination on the merits. This
Court agrees with Respondent that, if the process was “legislative in character,” this
Court would lack certiorari jurisdiction and could not reach the merits of Petitioner’s
brief.
Florida courts have long held that a city’s legislative actions are subject to
attack in circuit court through the filing of an original action seeking declaratory or
injunctive relief, while a city’s quasi-judicial actions are subject to certiorari review.
See e.g. Minnaugh v. County Com’n of Broward County, 752 So. 2d 1263, 1265 (Fla.
4th DCA 2000) (legislative actions are “not subject to the certiorari review process
but reviewable by a de novo action seeking declaratory or injunctive relief in circuit
court”); see also Board of County Com’rs of Brevard County v. Snyder , 627 So. 2d
469, 474 (Fla. 1993).
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In this case, the board action at issue is the City Commission’s passage of a
zoning ordinance that created an overlay, historic preservation zoning district over
an area referred to as the Tatum Waterway in Miami Beach, Florida.
The Florida Supreme Court has, for decades, expressly stated “[z]oning is a
legislative function which reposes ultimately in the governing authority of a
municipality.” Gulf & Eastern Development Corp. v. City of Fort Lauderdale , 354
So. 2d 57, 59 (Fla. 1978); Snyder, 627 So. 2d at 474 (“Enactments of original zoning
ordinances have always been considered legislative.”).
Florida’s District Courts of Appeal have similarly, and routinely, held that
“creating zoning districts and rezoning land are legislative actions, and… trial courts
are not permitted to sit as ‘super zoning boards’ and overturn a board’s legislative
efforts.” Hirt v. Polk County Bd. of County Com’rs, 578 So. 2d 415, 417 (Fla. 2d
DCA 1991); see also Harris v. Goff, 151 So. 2d 642, 645 (Fla. 1st DCA 1963) (“It
has been uniformly held in this state that the function of a board or commission in
the enactment of zoning ordinances is a purely legislative function.”); Machado v.
Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987) (“It is well settled that a zoning
action is an exercise of legislative power to which a reviewing court applies the
deferential fairly debatable test.”); Pasco County v. J. Dico, Inc., 343 So. 2d 83, 84
(Fla. 2d DCA 1977) (“The adoption of a zoning ordinance and zon ing maps is a
legislative act.”).
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Florida courts have, however, wrestled with when, if ever, the passage of a
zoning ordinance may constitute quasi-judicial action. In Hirt, for example, the
Second District Court of Appeal explained that “[w]hether a board’s zoning decision
is considered legislative or quasi-judicial… turn[s] on whether the local
governmental body is enacting an ordinance, in which case it is acting legislatively,
or enforcing it, in which case it may be acting quasi-judicially.” 578 So. 2d at 417
(emphasis added). It is only when “appellate courts have been called upon to classify
governmental bodies’ application of zoning ordinances, [that] their decisions have
sometimes blur[red] the distinction between legislative and quasi -judicial actions.”
Id.
Two years following the Second District’s Hirt opinion, the Florida Supreme
Court clarified that although “[e]nactments of original zoning ordinances have
always been considered legislative,” the passage of a zoning ordinance that affects
a limited number of persons, or property owners, could be functionally viewed as
quasi-judicial action. Snyder, 627 So. 2d at 474. Specifically, the Florida Supreme
Court adopted the lower court’s analysis and held,
Rezoning actions which have an impact on a limited
number of persons or property owners, on identifiable
parties and interests, and where the decision is contingent
on a fact or facts arrived at from distinct alternatives
presented at a hearing, and where the decision can be
functionally viewed as policy application, rather than
policy setting, are in the nature of… quasi-judicial action.
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Id. (emphasis added). The Court’s opinion in Snyder is applicable to all rezoning
actions that do not concern the passage of, or amendment to, a comprehensive land
use plan. See Martin County v. Yusem, 690 So. 2d 1288 (1997) (committing to its
analysis in Snyder, except for cases that concern amendments to a comprehensive
land use plan and finding that all actions concerning a comprehensive land use plan
are legislative by nature, even when the amendment under consideration concerns a
single property or owner).
Admittedly, the case law on this issue could be clearer. Often, it seems as if
the concepts of a “comprehensive land use plan” and other zoning ordinances are
being used interchangeably. Additionally, it is not always clear whether courts
intend to use the word “comprehensive” in “comprehensive plan” as an adjective, or
as one part of a compound noun. The Third District Court of Appeal has
acknowledged the difference between a comprehensive land use plan and zoning
action. See Machado, 519 So. 2d at 631-32. Specifically, the Third District Court
of Appeal has explained,
A local comprehensive land use plan is a statutorily
mandated legislative plan to control and direct the use and
development of property within a county or
municipality… .The plan is likened to a constitution for a l l
future development within the governmental boundary.
Zoning, on the other hand, is the means by which the
comprehensive plan is implemented, and involves the
exercise of discretionary powers within limits imposed
by the plan.
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Id. Notwithstanding this distinction, the Third District Court of Appeal, like every
other Florida court, has clearly, and correctly, reiterated what Florida courts have
always known—that “[i]t is well-settled that a zoning action is an exercise of
legislative power… .” Id. (emphasis added).
The law in Florida, therefore, currently provides that a city’s enactment of, or
amendment to, a comprehensive land use plan is legislative in nature —irrespective
of how many people the action affects. See generally Yusem; see also Snyder. If,
rather than enact, or amend a comprehensive land use act, the city enacts a zoning
ordinance with broad application to a large number of owners, then that act is also
legislative in nature. See Snyder, 627 so. 2d at 474 (“it is evident that comprehensive
rezonings affecting a large portion of the public are legislative in nature”); Board of
County Com’rs of Sarasota County v. Karp , 662 So. 2d 718, 720 (Fla. 4th DCA
1995) (“Further, although the corridor plan directly affected a finite number of
parcels, the number was fairly substantial.”); J. Dico, Inc., 343 So. 2d at 84 (“The
adoption of a zoning ordinance and zoning maps is a legislative act.”); Gulf &
Eastern Dev. Corp., 354 So. 2d at 59 (“zoning is a legislative function which reposes
ultimately in the governing authority of a municipality”); Hirt, 578 So. 2d at 417
(“[w]hether a board’s zoning decision is considered legislative or quasi-
judicial… turn[s] on whether the local governmental body is enacting an ordinance,
in which case it is acting legislatively.”).
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However, if the passage of a zoning ordinance does not concern a
comprehensive land use plan and affects only a limited number of persons, that
action may be quasi-judicial. See Snyder, 627 So. 2d at 474 (“Rezoning actions
which have an impact on a limited number of persons or property owners… a n d
where the decision can be functionally viewed as policy application, rather than
policy setting, are in the nature of… quasi -judicial action”); see also Hirt, 578 S o .
2d at 417 (it is when courts must classify “governmental bodies’ application of
zoning ordinances, [that] their decisions have sometimes blur[red] the distinction
between legislative and quasi-judicial actions.”); Section 28 Partnership, LTD v.
Martin County, 642 So. 2d 609, 612 (Fla. 4th DCA 1994) (“a zoning decision is
reviewable by certiorari, as the review of a quasi -judicial act rather than legislative
act if: (a) it affects a limited number of property owners; (b) the outcome is
contingent on facts presented at a hearing; and (c) it is viewed as the application,
rather than the setting, of policy.”) (emphasis added).
In this case, the record demonstrates the City Commission enacted a zoning
ordinance that created an overlay zoning district, rezoning a large area with multiple
properties as historic. Petitioner, in fact, has, in a letter that is part of the record
below, stated that the zoning ordinance at issue could affect 8,000-10,000 residents.3
3 Specifically, in a letter addressed to the Mayor and City Commission, dated May 14, 2018,
Petitioner estimated that historic designation could result in displacement of “8,000-10,000
possibly uninformed residents in the Historic Designation subject area.”
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This fact alone demonstrates the City’s action was legislative in nature. See Snyder,
627 So. 2d at 474 (“it is evident that comprehensive rezonings affecting a large
portion of the public are legislative in nature.”); Karp, 662 So. 2d 718, 720 (Fla. 4th
DCA 1995) (“Further, although the corridor plan directly affected a finite number of
parcels, the number was fairly substantial.”); J. Dico, Inc., 343 So. 2d at 84 (“The
adoption of a zoning ordinance and zoning maps is a legislative act.”).
Even if this Court were inclined to conclude that the zoning ordinance at issue,
which covers a large area and affects thousands of residents, was somehow
“limited,” this Court would still not find the City’s zoning action to be of a quasi -
judicial nature for at least two reasons.
First, the Commission’s decision to create an overlay historic district over the
Tatum Waterway was not “contingent on a fact or facts arrived at from distinct
alternatives presented at a hearing.” Snyder, 627 So. 2d at 474. Second, the
Commission’s decision to designate the Tatum Waterway as historic cannot “be
functionally viewed as policy application.” Id. This is not a case where the City
Commission must decide whether an applicant for a variance or permit should be
afforded relief. In this case, the City Commission, as Petitioner concedes, chose to
create a historic zoning overlay district over the Tatum Waterway as part of what it
called its “Master Plan” for the City. In formulating the Master Plan, the City sought
the input of experts and residents. Policy decisions and compromises were made.
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The designation of the Tatum Waterway as historic was one such policy decision
and constituted an exercise of the City’s long -recognized legislative power to enact
zoning ordinances and create zoning maps. See Machado, 519 So. 2d at 631-32
(“Zoning… involves the exercise of discretionary powers.”).
Petitioner, nevertheless, contends this Court should treat the City
Commission’s passage of the zoning ordinance as if it were a quasi -judicial act.
Petitioner argues, primarily, that (1) the City Code provides for quasi-judicial
hearings as part of the historic designation process; and (2) the City Commission’s
decision was contingent on a finding that the proposed designated area met certain
historic preservation and “sea level rise” criteria. Petitioner is incorrect.
First, the City Code does not require the City Commission to hold a quasi -
judicial hearing. While Petitioner is correct that the City Code provides for quasi -
judicial hearings on proposed historic designations, the quasi -judicial proceedings
are conducted by the historic preservation board. See Miami Beach, Fla., Code §
118-591(f) (“A quasi-judicial public hearing on a proposed historic preservation
designation shall be conducted by the historic preservation board… ”)(emphasis
added).
Second, while the City does require the historic preservation board to consider
certain factors and/or apply some criteria, the City Code is silent as to any facts that
must be found, or criteria that must be applied, by the City Commission when
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determining whether it wishes to accept, or reject, the board’s recommendation. See
Miami Beach, FL., Code § 118.592. Instead, the City Code merely states the City
Commission must simply vote by a five-sevenths vote to designate a property as
historic. See Miami Beach, FL., Code § 118.593(c); see also e.g. Gulf & Eastern,
354 So. 2d at 60 (finding proceedings before a zoning board “result in input which
is material and substantial” but noting “a record in the strict sense is not made at the
zoning board hearing by which the City Commission is bound”); Machado, 519 So.
2d at 631-32 (“Zoning… involves the exercise of discretionary powers.”).4
This Court is equally unpersuaded by Petitioner’s other arguments, including
its characterization of the two public readings before the City Commission as quasi-
judicial proceedings. See Karp, 662 So. 2d at 720 (“Respondent’s argument that the
‘character of the hearing’ referred to in Snyder refers primarily to the due process
aspects of the hearing is not well taken.”). It is not uncommon for ordinances to be
read and for residents to be heard before a commission votes on the passage of a new
law. Indeed, nearly fifty years ago, the Florida Supreme Court stated,
Every meeting of any board, commission, agency or
authority of a municipality should be a marketplace of
ideas, so that the governmental agency may have sufficient
input from the citizens who are going to be affected by the
subsequent action of the municipality… Government,
4 Petitioner also contends that the City has defined “quasi-judicial” in such a way as to convert its
otherwise legislative rezoning actions into quasi-judicial actions. This Court disagrees. The
definition upon which Petitioner relies effectively tracks Snyder and does nothing to change the
analysis here. See Miami Beach, FL., Code § 2-511.
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more so now than ever before, should be responsive to the
wishes of the public. These wishes could never be known
in nonpublic meetings, and the governmental agencies
would be deprived of the benefit of suggestions and ideas
which may be advanced by the knowledgeable public.
Also, such open meetings instill confidence in
government. The taxpayer deserves an opportunity to
express his views and have them considered in the
decision-making process.
Town of Palm Beach v. Gradison , 296 So. 2d 473, 475 (Fla. 1974); see also Miami
Beach, FL. § 2-14(a) (affording its residents “timely opportunities for input and
procedural fairness in hearings for any proposed policy, ordinance, project or other
matter that impacts residents’ quality of life.”). The public reading of an ordinance
does not, therefore, standing alone, turn a legislative act into a quasi-judicial
proceeding.
Similarly, the fact that the proceeding before the historic preservation board
was quasi-judicial in nature does not convert the City Commission’s inherent
legislative authority to rezone large portions of the city into a quasi-judicial act. On
the contrary, there are good reasons to allow for quasi-judicial proceedings before a
historic preservation board. See Gulf & Eastern, 354 So. 2d 57. For example, in
Gulf & Eastern, the Florida Supreme Court reiterated what has become abundantly
clear—“[z]oning is a legislative function which reposes ultimately in the governing
authority of a municipality.” Id. at 59. Still, the Court noted that it has become
common for some, or all, of the zoning process to be delegated to an independent
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board. Id. at 59. These delegations allow a board or agency to recommend a more
restrictive use of property and “effectively [endow] the [board or agency] with the
power to alter the use of a particular parcel of land on an interim basis” “until the
recommendation has been acted on by the [c]ity [c]ommission.” Id. The Florida
Supreme Court did not then, and has not since, held that the passage of a zoning
ordinance necessarily constitutes a quasi-judicial act when it follows a quasi-judicial
proceeding before a zoning, planning, or historic preservation board.5 Instead,
Florida courts have continued to maintain that the passage of a zoning ordinance is
a legislative act, unless the action taken affects a limited number of persons. See
Snyder, 627 So. at 474 (“it is evident that comprehensive rezonings affecting a large
portion of the public are legislative in nature”).
In summary, the City Commission’s passage of the zoning ordinance at issue
affected a large number of persons and property, was not contingent on the finding
of any fact, and constituted policy formulation as opposed to policy application. The
City Commission’s action therefore was legislative in nature. This Court lacks
certiorari jurisdiction over the legislative actions of the City Commission.
5 The cases upon which Petitioner relies concern zoning actions of limited scope, “spot-zoning,”
and/or are otherwise distinguishable and inapposite.
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Accordingly, this Court withdraws its Opinion dated August 31, 2020,
withdraws its Order Denying Respondent’s Motion to Dismiss, and DISMISSES the
Petition for Certiorari for lack of jurisdiction.
TRAWICK, WALSH AND R. ARECES, JJ., CONCUR.
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Copies Furnished to:
jbass@shubinbass.com
eservice@shubinbass.com
evaughan@shubinbass.com
NickKallergis@miamibeachfl.gov
wesley.hevia@akerman.com
joni.armstrong.coffey@akerman.com
wesley.hevia@akerman.com
maria.y.gonzalez@akerman.com
kmaxwell@shubinbass.com
evaughan@shubinbass.com
jhedges@shubinbass.com
eveboutsis@miamibeachfl.gov
paulsaca@miamibeachfl.gov
raulaguila@miamibeachfl.gov
nicholas.barshel@akerman.com
diana.perez-gata@akerman.com
maria.y.gonzalez@akerman.com