LTC 233-2022 Favorable Rulings in Litigation relating to the redevelopment of the Seagull Hotel, brought by the Setai Resort and ResidencesMIAMI BEACH
O FFICE OF THE CITY ATTORNEY
LT C# LETTER TO COMMISSION
TO: Mayor Dan Gelber and Members of the City Commission
FROM: Rafael A Paz, City Attorney
DATE: June 16, 2022
SUBJECT: Favorable Rulings in Litigation relating to the redevelopment of the Seagull Hotel,
brought by the Setai Resort & Residences Condominium Association, Inc., and
Setai Hotel Acquisition, LLC, against the City of Miami Beach.
I am pleased to advise the City Commission of two recent decisions in favor of the City arising
from litigation brought by the Setai Resort & Residences Condominium Association, Inc., and
Setai Hotel Acquisition, LLC (altogether, "Setai") to challenge the redevelopment of the Setai's
neighbor, the former Seagull Hotel, located at 100 21 st Street, Miami Beach. BHI Miami Limited
Corp. ("BHI"), the owner of the property, seeks to transform the Seagull Hotel into North
America's first Bvlgari Hotel, one of the world's premier luxury hotel brands.
Setai has commenced multiple challenges against the City and BHI, several of which remain
pending as explained below. That said, this L TC focuses on favorable results in two of the
cases:
1. Setai's Petition for Writ of Prohibition. First, the City obtained a final judgment in its
favor and against Setai concerning Setai's Petition for Writ of Prohibition. Setai sought a
Writ of Prohibition to prevent the City's Historic Preservation Board Special Magistrate
from hearing the administrative appeal that Setai itself filed. The Circuit Court recognized
the Special Magistrate's authority to hear appeals from the HPB and denied the Petition.
A copy of the Circuit Court's Final Judgment is attached to this L TC as Exhibit "A". Case
No. 2021-24426 CA 07 (11 th Judicial Circuit, Miami-Dade County, Florida).
2. Setai's Administrative Appeal to the HPB Special Magistrate. Second, the City
obtained a decision in its favor in the Setai's administrative challenge to the HPB approval
of a certificate of appropriateness ("COA") for the redevelopment of the Seagull Hotel. In
affirming the HPB's decision, the Special Magistrate found that the HPB's decision was
supported by competent substantial evidence, and the board observed the essential
requirements of law. A copy of the Special Magistrate's Opinion is attached as Exhibit
"B". Case No. 2021-002 (Special Magistrate, City of Miami Beach, Florida).
233-2022
Seagull Hotel
June 16, 2022
Page 2 of 2
As previewed above, the following litigation matters remain pending:
• Petition for Writ of Certiorari before the 11 th Judicial Circuit Court Appellate Division (Setai
Resort & Residences Condo. Ass'n, Inc., et al. v. City of Miami Beach, et al., Case No.
2021-036 AP 03 (filed July 26, 2021)); and
• An original action before the 11 th Judicial Circuit Court ( Setai Hotel Acquisition, LLC, et
al. v. City of Miami Beach, et al., Case No. 2021-16693-CA-07 (filed July 6, 2021)).
Importantly, due to the automatic stay provisions of the City Code, no work could proceed
on the dilapidated Seagull Hotel structure during the pendency of the on-going litigation,
notwithstanding the careful review and approval of the HPB and the multiple rulings
obtained in favor of the City. Accordingly, the vacant building -an eyesore at the entrance
to the City's 21 st Street Beachwalk -must continue to remain boarded-up until further
notice.
Please do not hesitate to contact me directly if you have any questions regarding this litigation .
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2021-024426-CA-01
SECTION: CA07
JUDGE: Maria de Jesus Santovenia
Setai Resort & Residences Condominium Association et al
Plaintiff(s)
vs.
City of Miami Beach (The) et al
Defendant(s)
____________________________/
FINAL JUDGMENT DENYING VERIFIED COMPLAINT FOR WRIT OF PROHIBITION
THIS MATTER came before the Court at a one-hour hearing on May 19,
2022 at 4:00 p.m. on Plaintiffs, Setai Hotel Acquisition, LLC’s (“SHA”) and Setai
Resort & Residences Condominium Association, Inc.’s (“Association”) (collectively,
“Plaintiffs” or “Setai”) Verified Complaint for Writ of Prohibition (Dkt. 2)
(“Complaint”). The Court, having reviewed the Complaint, the joint response thereto
(Dkt. 30) filed by Defendants City of Miami Beach (“City”) and BHI Miami Limited
Corp. (“BHI”) (collectively, “Defendants”), Plaintiffs’ Joint Reply (Dkt. 62), the
Affidavit of Thomas R. Mooney filed in opposition to the Complaint (Dkt. 29, 31-
32), the notices of supplemental authorities filed by the parties, the record and the
applicable law, and having heard extensive argument of counsel, it is thereupon,
ORDERED AND ADJUDGED that Plaintiffs’ Complaint is DENIED for the
reasons that follow:
IntroductionI.
Case No: 2021-024426-CA-01 Page 1 of 13
Filing # 151297334 E-Filed 06/10/2022 05:10:34 PM
This case arises from Plaintiffs’ Complaint directed to the City of Miami
Beach’s Historic Preservation Special Magistrate (“Special Magistrate”). The
Complaint seeks to prohibit the Special Magistrate from proceeding with an
administrative hearing that Plaintiffs themselves commenced to challenge a
Certificate of Appropriateness (“COA”) granted by the City’s Historic Preservation
Board (“HPB”) to the Setai’s neighbor – Defendant BHI.
Summary of Relevant Procedural HistoryII.
Relevant TimelineA.
On July 13, 2021, Plaintiffs sought administrative review of a development
order rendered by the City’s HPB that granted a COA to BHI (“HPB Order”).
Plaintiffs invoked the administrative remedy provided in the Miami Beach City
Code, i.e., they filed a notice of appeal of the HPB Order to the City’s Special
Magistrate. See In re: 100 21st Street, Miami Beach, Florida, Case No. 2021-002
(HPB File No. 20-0442). On November 3, 2021 – 114 days after initiating the
Special Magistrate administrative review – Plaintiffs filed the instant Complaint to
stop the Special Magistrate administrative appeal that Plaintiffs commenced. (Dkt.
2.) The next day, on November 4, 2021, a predecessor judge issued an “Order Nisi
in Prohibition” in this case (Dkt. 10) (“Order Nisi”).
Plaintiffs provided the Order Nisi to the Special Magistrate with a “Notice of
Invoking the Automatic Stay Provisions of Fla. R. App. P. 9.100(h).” On November
9, 2021, the Special Magistrate issued an “Order Recognizing Stay of Proceedings
Case No: 2021-024426-CA-01 Page 2 of 13
Pursuant to Fla. R. App. P. 9.100(h).” On January 28, 2022, an order was entered
transferring this case to this division. Upon subsequent motion by the Defendants,
this Court entered its Order Granting [Defendants’] Joint Motion to Lift Automatic
Stay (“Order”) on February 16, 2022. (Dkt. 49.) On the same date, the final hearing
on the Verified Complaint for Writ of Prohibition was scheduled for a special-set
hearing on June 21, 2022. (Dkt. 52.)
On March 1, 2022, Plaintiffs filed a Petition for Writ of Certiorari, or
Alternatively, For Writ of Mandamus (“Petition for Writ of Certiorari”) in the Third
District Court of Appeal (“Third District”) challenging the Order. Plaintiffs thereafter
filed a motion with this Court asking to stay the Order until the Third District could
rule upon the Petition for Writ of Certiorari. This Court denied that motion on April
25, 2022. (Dkt. 64.) Plaintiffs also asked the Third District to stay the challenged
Order on an emergency basis. The Third District denied the stay request on March
10, 2022. See Order [Denying Petitioners’ Emergency Motion to Stay], Setai Resort
& Residences Condo. Ass’n, Inc., et al. v. City of Miami Beach, et al., Case No.
3D22-381 (Fla. 3d DCA Mar. 10, 2022) (Dkt. 58). The Third District ultimately
denied Plaintiffs’ Petition for Writ of Certiorari on April 27, 2022. See Order
[Denying Setai’s Petition for Writ of Certiorari], Setai Resort & Residences Condo.
Ass’n, Inc., et al. v. City of Miami Beach, et al., Case No. 3D22-381 (Fla. 3d DCA
Apr. 27, 2022) (Dkt. 66).
The Special Magistrate scheduled oral argument in the Special Magistrate
proceeding for May 20, 2022. The parties were notified of the oral argument date on
Case No: 2021-024426-CA-01 Page 3 of 13
April 15, 2022. On April 25, 2022, Plaintiffs filed their Motion to Advance [the June
21,2022] Final Hearing in the instant Prohibition matter, which final hearing had
been set since February 16, 2022. On May 9, 2022, Plaintiffs filed their Emergency
Motion to Assign Senior Judge to Hear Time Sensitive Pending Matter to address the
writ of prohibition. This Court granted an expedited hearing on the Verified
Complaint for Writ of Prohibition, setting aside one hour on May 19, 2022, the day
prior to the scheduled hearing before the Miami Beach Special Magistrate. By
separate Order, this Court denied Plaintiffs’ emergency motion as moot (Dkt. 80.)
On May 19, 2022, following the hearing, this Court entered an abbreviated
Order Denying Plaintiffs’ Verified Complaint for Writ of Prohibition so that the
ruling would be memorialized prior to the Miami Beach Special Magistrate hearing
the next morning, while stating that “[t]he Court will enter a separate Final Judgment
setting forth in detail the basis for its ruling”. This more detailed Order follows.
The Setai’s Multiple Actions Against DefendantsB.
The Court notes that this case is one of several actions the Setai has brought
against Defendants. The Setai has filed the following actions:
the Petition for Writ of Certiorari before the Circuit Court Appellate
Division (Setai Resort & Residences Condo. Ass’n, Inc., et al. v. City of
Miami Beach, et al., Case No. 2021-036 AP 03 (filed July 26, 2021));
i.
the instant Complaint for Writ of Prohibition (Setai Hotel Acquisition,
LLC, et al. v. City of Miami Beach, et al., Case No. 2021-024426-CA-01
ii.
Case No: 2021-024426-CA-01 Page 4 of 13
(filed Nov. 3, 2021));
an original action before this Court (Setai Hotel Acquisition, LLC, et al.
v. City of Miami Beach, et al., Case No. 2021-16693-CA-07 (filed July 6,
2021));
iii.
the administrative proceeding before the City of Miami Beach Special
Magistrate (Setai Resort & Residences Condo. Ass’n, Inc., et al. v. City of
Miami Beach, et al., Case No. 2021-002 (filed July 13, 2021)); and
iv.
the certiorari review before the Third District of the interlocutory Order
in the instant Complaint (Setai Resort & Residences Condo. Ass’n, Inc.,
et al. v. City of Miami Beach, et al., Case No. 3D22-381 (filed Mar. 1,
2022)).[1]
v.
The Court further notes that the Setai’s challenge to the constitutionality of the
City’s Special Magistrate procedure will not be resolved in this case. Rather, the
issue will be resolved in the separately-filed original action pending before this
Court. See Setai Hotel Acquisition, LLC, et al. v. City of Miami Beach, et al., Case
No. 2021-16693-CA-07. The Setai itself conceded this point during the final hearing
and expressly alleged as such in its Complaint. See Final Hr’g Tr. 27:10-28:12, May
19, 2022 (Dkt. 85); Compl. n.3. In terms of timing, the Petition for Writ of Certiorari
before the Circuit Court Appellate Division has been fully briefed by the parties as of
April 15, 2022.
AnalysisIII.
Case No: 2021-024426-CA-01 Page 5 of 13
“Prohibition is an extraordinary writ.” English v. McCrary, 348 So. 2d 293,
296 (Fla. 1977). “The writ is very narrow in scope and operation and must be
employed with caution and utilized only in emergency cases to prevent an impending
injury where there is no other appropriate and adequate legal remedy.” Mandico v.
Taos Constr. Inc., 605 So. 2d 850, 854 (Fla. 1992). Mindful of the writ’s narrow
scope and operation, this Court exercises its discretion to deny prohibition because
the Setai failed to demonstrate the existence of an emergency, the presence of an
impending injury, and the absence of other adequate remedies. See id.
A. No Emergency
This Court previously ruled that this case does not present a “true emergency”
as the relevant timeline illustrates. (See Dkt. 64.) The Setai’s own conduct
demonstrates the absence of an emergency. The Setai initiated the Special Magistrate
administrative appeal on July 13, 2021. Plaintiffs filed the Complaint 113 days
thereafter. Defendants filed their response within the allocated twenty (20) days. The
Setai file its reply 119 days later and undertook no effort for quite some time to set
the case for final hearing.
No HarmB.
The Setai does not actually plead that the Special Magistrate administrative
appeal will cause it to suffer legally cognizable harm. The only allegation of harm is
contained in paragraph 26 of the Complaint, where Setai alleges that the
administrative appeal “could create confusion and likely result in what would be an
Case No: 2021-024426-CA-01 Page 6 of 13
avoidable expenditure of judicial resources.” Compl. ¶ 26. This allegation is
insufficient to establish legally cognizable harm because “the continuation of
litigation and any ensuing costs, time, and effort in defending such litigation does not
constitute irreparable harm.” Rodriguez v. Miami-Dade Cnty., 117 So. 3d 400, 405
(Fla. 2013) (“Rodriguez”). Furthermore, “[n]o principle is more firmly established
than the requirement that, before resorting to the courts, one must pursue and exhaust
any extra-judicial or administrative remedy which may provide the relief sought.”
Rousseau v. Miami-Dade Cnty., 321 So. 3d 374, 374 (Fla. 3d DCA 2021) (quoting
City of Miami v. Fraternal Ord. of Police Lodge No. 20 of City of Miami, 378 So. 2d
20, 23 (Fla. 3d DCA 1979)); see also, e.g., Miami-Dade Cnty. v. Harris, 278 So. 3d
103, 106 (Fla. 3d DCA 2019) (same); Zuniga v. City of Hialeah, 103 So. 3d 988, 990
(Fla. 3d DCA 2012) (same); Gen. Elec. Cred. v. Metro. Dade Cnty., 346 So. 2d 1049,
1055 (Fla. 3d DCA 1977) (affirming dismissal of petition for writ of certiorari for
failure to exhaust administrative remedies). The exhaustion rule exists “for good and
salutary reasons relating to both respect for the administrative process and judicial
efficiency.” City of Sunny Isles Beach v. Publix Super Mkts., Inc., 996 So. 2d 238,
239 (Fla. 3d DCA 2008).
By the combined operation of the Rodriguez and exhaustion rules,
participation in the administrative proceeding before the Special Magistrate does not
constitute legally cognizable harm or injury sufficient to justify a writ of prohibition.
See Rodriguez, 117 So. 3d at 405; Mandico, 605 So. 2d at 854; Rousseau, 321 So. 3d
at 374; City of Sunny Isles Beach, 996 So. 2d at 239. In reaching this conclusion, the
Case No: 2021-024426-CA-01 Page 7 of 13
Court notes that it is the Setai itself that initiated the Special Magistrate
administrative appeal proceeding that it now claims causes harm[2].
It merits mention that the Setai twice sought intervention from the Third
District, seeking stay relief and seeking certiorari review. Harm is a necessary
element to obtain stay relief. See Sunbeam Tel. Corp. v. Clear Channel Metroplex,
Inc., 117 So. 3d 772, 772 (Fla. 3d DCA 2012) (holding that an appellate stay requires
“a likelihood of harm absent the entry of a stay”). The Third District denied stay
relief. See Order [Denying Petitioners’ Emergency Motion to Stay], Setai Resort &
Residences Condo. Ass’n, Inc., et al. v. City of Miami Beach, et al., Case No. 3D22-
381 (Fla. 3d DCA Mar. 10, 2022) (Dkt. 58). It also denied the Setai’s Petition for
Writ of Certiorari. See Order [Denying Setai’s Petition for Writ of Certiorari], Setai
Resort & Residences Condo. Ass’n, Inc., et al. v. City of Miami Beach, et al., Case
No. 3D22-381 (Fla. 3d DCA Apr. 27, 2022) (Dkt. 66). The Third District also denied
the Setai’s request for expedited disposition. See id.
Other RemediesC.
It is undisputed that the Setai is currently litigating two other cases in two
separate divisions of the Circuit Court to challenge the HPB Order at issue here.
They are:
the Petition for Writ of Certiorari before the Circuit Court Appellate
Division (Setai Resort & Residences Condo. Ass’n, Inc., et al. v. City of
Miami Beach, et al., Case No. 2021-036 AP 03 (filed July 26, 2021));
i.
Case No: 2021-024426-CA-01 Page 8 of 13
and
an original action before this Court (Setai Hotel Acquisition, LLC, et al.
v. City of Miami Beach, et al., Case No. 2021-16693-CA-07 (filed July 6,
2021)).
ii.
The existence and pursuit of those cases indicates that the Setai has other available
remedies.
Other Considerations that Bar Prohibition ReliefD.
The Special Magistrate operates as part of sweeping legislation adopted by the
City in 1994. See affidavit filed by the City’s Planning Director, Thomas R.
Mooney¶¶ 10-14, Ex.1. Legislative acts are afforded a presumption of
constitutionality and courts are obliged to construe challenged legislation to effect a
constitutional outcome when possible. See Fraternal Order of Police, Miami Lodge
20 v. City of Miami, 243 So. 3d 894, 897 (Fla. 2018). While the Setai challenges the
constitutionality of the Special Magistrate, this Court cannot and will not determine
that issue in this prohibition proceeding. Absent a ruling to the contrary, the Special
Magistrate proceeding enjoys a presumption of constitutionality. See id.
The Setai argues that the Florida Rules of Appellate Procedure somehow bar
the Special Magistrate’s ability to hear an administrative appeal. However, neither
the Special Magistrate nor the City is part of the judiciary. Consequently, neither is
governed by the Florida Rules of Appellate Procedure as it relates to the conduct of
their internal, administrative decision making. See Canney v. Bd. of Pub. Instruction
Case No: 2021-024426-CA-01 Page 9 of 13
of Alachua Cnty., 278 So. 2d 260, 262 (Fla. 1973) (“The administrative body is not
part of the judiciary and this Court cannot promulgate rules of practice and procedure
for administrative bodies.”).
Lastly, the subject matter of the hearing before the Special Magistrate is an
administrative appeal of the HPB’s decision granting a COA to BHI. The plain text
of the City Code confirms that this subject matter is within the jurisdictional
authority the Miami Beach City Commission delegated by ordinance to the Special
Magistrate. See § 118-9(c)(2)(A)(i), City Code (“Any applicant requesting an appeal
of an approved application from the historic preservation board (for a certificate of
appropriateness only) shall be made to the historic preservation special magistrate.”)
(emphasis supplied).
ConclusionIV.
For the foregoing reasons, the Complaint is DENIED. Final Judgment is
hereby entered against Plaintiffs Setai Resort & Residences Condominium
Association, Inc.[3] and Setai Hotel Acquisition, LLC[4] and in favor of Defendants
City of Miami Beach[5] and BHI Miami Limited Corp.[6] Plaintiffs shall take nothing
by this action and Defendants shall go hence without day. All pending motions are
hereby denied as moot. The Court retains jurisdiction to determine any timely-filed
motion for attorneys’ fees and/or costs, if and to the extent such an award is
authorized by law. The clerk is directed to close this case.
Case No: 2021-024426-CA-01 Page 10 of 13
[1] As noted above, following review of the Petition for Writ of Certiorari, the
Response and Reply, the Third District denied the Petition for Writ of Certiorari on
April 27, 2022. The Third District’s Order also denied as moot the Setai’s Motion for
Expedited Resolution.
[2] The Setai cannot claim the City’s administrative remedy causes it to suffer
sudden harm or prejudice. The affidavit filed by the City’s Planning Director,
Thomas R. Mooney, demonstrates that the Setai initiated and participated in an
administrative appeal to the Special Magistrate in 2016 to challenge a COA granted
to a different neighbor – the Shore Club. See Mooney Aff. ¶¶ 35-38, Exs. 20, 21.
Consequently, the Setai has known about and actually participated in the Special
Magistrate administrative remedy since at least 2016.
[3] Setai Resort & Residences Condominium Association, Inc., whose address is
101 20th Street, Miami Beach, Florida 33139, Tax ID No. 90-0132183.
[4] Setai Hotel Acquisition, LLC, whose address is 2001 Collins Avenue, Miami,
Florida 33139, Tax ID No. 37-1775409.
[5] City of Miami Beach, whose address is 1700 Convention Center Drive,
Miami Beach, Florida 33139, Tax ID No. 59-6000372.
[6] BHI Miami Limited Corp., whose address is 1521 Alton Road, #403, Miami
Beach, Florida 33139, Tax ID No. 35-2683195.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 10th day of June,
2022.
2021-024426-CA-01 06-10-2022 4:56 PM
Hon. Maria de Jesus Santovenia
CIRCUIT COURT JUDGE
Electronically Signed
Case No: 2021-024426-CA-01 Page 11 of 13
Final Order as to All Parties SRS #: 12 (Other)
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.
Electronically Served:
Bradley S Gould, bradley.gould@gray-robinson.com
Bradley S Gould, jacqueline.dieguez@gray-robinson.com
Bradley S. Gould, bradley.gould@gray-robinson.com
Bradley S. Gould, jacqueline.dieguez@gray-robinson.com
Deana D Falce, dfalce@shubinbass.com
Deana D Falce, eservice@shubinbass.com
Deana D Falce, esantana@shubinbass.com
Deana D. Falce, dfalce@shubinbass.com
Deana D. Falce, eservice@shubinbass.com
Eileen Ball Mehta, emehta@bilzin.com
Eileen Ball Mehta, eservice@bilzin.com
Eileen Ball Mehta, ggarcia@bilzin.com
Jeffrey S. Bass, jbass@shubinbass.com
Jeffrey S. Bass, eservice@shubinbass.com
Jeffrey S. Bass, evaughan@shubinbass.com
Katherine Maxwell, kmaxwell@shubinbass.com
Katherine Maxwell, eservice@shubinbass.com
Kenneth Duvall, kduvall@bilzin.com
Kenneth Duvall, eservice@bilzin.com
Kenneth Duvall, ggarcia@bilzin.com
Kenneth Duvall, kduvall@bilzin.com
Kenneth Duvall, eservice@bilzin.com
Kenneth Duvall, stapanes@bilzin.com
Kent H. Robbins, khr@khrlawoffices.com
Kent H. Robbins, ereyes@khrlawoffices.com
Kent H. Robbins, assistant@khrlawoffices.com
Kent Harrison Robbins, khr@khrlawoffices.com
Kent Harrison Robbins, ereyes@khrlawoffices.com
Kent Harrison Robbins, assistant@khrlawoffices.com
Melissa Pallett-Vasquez, mpallett@bilzin.com
Melissa Pallett-Vasquez, eservice@bilzin.com
Michael Larkin, mlarkin@brzoninglaw.com
Nicholas Kallergis, nickkallergis@miamibeachfl.gov
Rafael Paz, rafaelpaz@miamibeachfl.gov
Whitney Kouvaris, wkouvaris@shubinbass.com
Whitney Kouvaris, eservice@shubinbass.com
Case No: 2021-024426-CA-01 Page 12 of 13
Physically Served:
BHI Miami Limited Corp., 1521 Alton Road #403, Miami Beach, Florida 33139
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139
Setai Hotel Acquisition, LLC, 2001 Collins Avenue, Miami, Florida 33139
Setai Resort & Residences Condominium Association, Inc., 101 20th Street, Miami Beach, Florida
33139
Case No: 2021-024426-CA-01 Page 13 of 13
BEFORE THE SPECIAL MAGISTRATE
FOR THE HISTORIC PRESERVATION BOARD
IN RE: 100 21 st STREET
MIAMI BEACH, FLORIDA
ORDER
CASE NO. SM 2021-002
HPB FILE NO. 20-0442
This Order addresses the appeal taken by Appellants Setai Resort
and Residences Condominium Association, Inc. ("Association") and Setai
Hotel Acquisition, LLC ("SHA") (collectively, "Appellants" or "Setai") from
the Order of the Historic Preservation Board (HPB), dated June 23, 2021
approving an application for a Certificate of Appropriateness with
conditions.
The Project
The subject property is improved with a contributing building known
as the "Seagull Hotel." BHI (the "Applicant") sought approval of a
Certificate of Appropriateness to make certain improvements to transform
the existing property to an ultra-luxury Bvlgari Hotel Miami Beach (the
"Project"). The property is located within the Ocean Drive/ Collins Avenue
Historic District.· The application, in summary, proposed a partial
1
demolition, renovation and restoration of the hotel building, total
demolition of an accessory cabana structure, and construction of two
ground level "additions and a rooftop addition." The renovation included
modifications to the south and east fac;ades, the rooftop, the porte-cochere
and entry, the lobby, the east wing and rear yard.1
Department Recommendation
As noted in its report, "[S]taff is extremely supportive of the
application and is enthusiastic about the return of this property to active
use and recommends approval. .. " Vol. 1 A. 222 Each of the proposed
modifications were addressed in its report.
Staff recommended approval of the proposed demolition of the
south and east facades to accommodate muti-level additions:
The applicant is proposing to construct multi-level
attached additions along the south and east sides of
the building. In order to construct these additions,
portions of the building are proposed to be
1 The application included and staff recommended approval of a variance to
relocate an allowable identification sign. The approved variance has not
been contested in the appeal. Additionally, Staff determined that a requested
waiver to retain any non-conforming setback and parking credits due to
demolition was not required because the project is in compliance with
Section 118-395(b)(2)(d)(1) of the City Code. However, at the hearing of
June 15, 2021, Staff determine that, "in abundance of caution," the waiver
be approved to retain the buildings existing setback and parking credits."
Transcript at p. 6. This is not at issue in this appeal.
2 The Special Magistrate will use the references provided in Appellants'
appendix.
2
demolished including the near total demolition of the
south and east facades. Staff would note that the
south portion of the building has no significant
architectural features and has been completely
obscured from view since the 1990s by the multi-
level podium of the building to the south. [the Setai]
Further while the eastern fa9ade does employ a
modest grid design, this feature is proposed to be
reinterpreted in the new east addition. Consequently,
staff has no objection to the requested demolition.
Vol. 1 A. 21
Staff also recommended approval of the proposed additions finding
"the design direction ... appropriately respond to the architectural vocabulary
of the Post War Modern structure to which they attach." Id. Staff also found
that, "the horizontal fin screens that clad the north side and south sides
successfully established a clearly contemporary, yet compatible relationship
with the strong horizontal emphasis of the Contributing building." Id.
Additionally Staff was supportive of the limestone clad horizontal elements
of the east fa9ade finding that it "effectively recalls the masonry balcony
guardrails of the original east fa9ade." Id
Regarding the roof top addition, Staff recommended approval of the
request, but on a modified basis. The proposed rooftop addition was 9400
square feet in size and 15 feet tall that included a pool and deck. Although
the rooftop addition is setback from the north, east and west fa9ades of the
contributing building, Staff raised a concern regarding its visibility from the
3
opposite side of 21 st Street. In order to address the line of sight requirement
criteria cited for roof top additions, Staff recommended a maximum
overhang projection of four feet. Additionally, staff recommended that "the
eastern end of the roof deck not extend beyond the floor below." Id.
Essentiall y, these recommendations were included in HPB order. Vol. 1 A.
3.
Staff also recommended approval of the modification of t he porta-
cochere and entry. Staff found the decision to lower the driveway to provide
additional clearance in order to avoid demolition and reconstruction of the
porta-cochere as a "creative solution." Vol. 1 A. 21.
Regarding modification of the lobby area, Staff had no objection to the
reconfiguration, which included a lowering of the area as well as a reduction
of the size of the existing area. However, because there was no information
on the design of the lobby, Staff indicated that as part of the order there
would be a condition that the interior design be "compatible w ith the Post
War Modern stye era." Vol. 1 A . 22. Indeed, the HPB order reflects such
condition. Vol. 1 A. 2.
Staff also recommended approval of modifications to the attached 1
and 2 story east wing. Staff research indicated that this area was originally
permitted separately from the main hotel and was used as a restaurant and
4
cabanas. The recommendation noted that the Applicant proposes
substantial demolition and partial reconstruction in order to introduce a new
restaurant and spa. Regarding this aspect of the Applicant's request, "Staff
has no objection to the requested demolition and believes that the proposed
new designed, particularly at the north fac;ade, will enhance the pedestrian
experience along the connection bath to the Beachwalk." Vol 1. A . 22.
The final modification proposed, which Staff also recommended for
approval, was to the rear yard. Staff noted that Applicant proposes
"significant landscape and hardscape enhancements the construction of a
new pool and deck and the demolition of an existing 1-story cabana
structure .... " Id. Staff indicated that it had no concern regarding this
modification and found "that the overall design is appropriate for this casual
beachfront area." Id.
Consistent with the above recommendation, Staff found all applicable
criteria for the Certificate of Appropriateness satisfied or imposed conditions
so that the project was in compliance. Vol. 1 A.15-20.
In particular, the Staff recommendation specifically addressed
pedestrian site lines and view corridors :
111. The examination of architectural drawings for consistency
with the criteria pursuant to Section 118-564(a)(3) of the
Miami B~ach Code and stated below, with regard to the
aesthetics, appearances, safety, and function of any new or
5
existing structure, public interior space and physical
attributes of the project in relation to the site, adjacent
structures and properties, and surrounding community. The
criteria referenced above are as follows (it is recommended
that the listed be found Satisfied, Not Satisfied or Not
applicable, as so noted):
e. The design and layout of the proposed site plan, as well as
all new and existing buildings and public interior spaces shall
be reviewed so as to provide an efficient arrangement of
land uses. Particular attention shall be given to safety, crime
prevention and fire protection, relationship to the
surrounding neighborhood, impact on preserving historic
character of the neighborhood and district, contiguous and
adjacent buildings and lands, pedestrian site lines and view
corridors. Satisfied. The proposed site plan does not
impede pedestrian sight lines and view corridors.
***
J. Any proposed structure shall have an orientation and
massing sensitive to and compatible with the building site
and surrounding area which creates or maintains important
view corridor(s). Satisfied. The proposed additions have
been oriented and massed in a manner which maintains
view corridors important to the historic district
Vol. 1 A. 16-18.
Hearing before the HPB
An extensive hearing was held before the HPB on June 15, 2021.
Transcript pp. 1-1023 . City Staff presented its recommendation in support
3 The transcript is included in Volume 3 of Appellants' appendix and
references will simply refer to the transcript page number.
6
of the application. Counsel for the Applicant made a full presentation based
on an objection from the Setai4 but noted support of the application from a
number of organizations including the Collins Park Neighborhood
Association and the Miami Design Preservation League Advocacy
Committee. Id. at p. 12. Indeed, during the hearing representatives of .both
organizations testified in support of the Project. Id. at pp. 39-40,47-49.
The Applicant's representative indicated the height of buildings
adjacent to the project. The W hotel is 20 stories and 200 feet tall. The
Setai is built at an FAR of 4.34 and at a height of 393 feet. The parking
structure for the Setai is 107 feet. The Project including the rooftop addition
is a total of 105 feet. Id. at p. 14.
Regarding view obstructions, the Applicant's representative noted
that the Demsey Vanderbilt portion of the Setai had unobstructed views to
the east and south. The Setai tower addition, however, blocked the ir own
views. Id at p. 15. The Setai addition also, "completely obliterated our [the
Project's] south views with that tower with a parking garage that is taller than
our building and extends the full east-west dimension of our property." Id.
The representative further explained regarding the view between the Setai
4 Applicant's representative noted that the Setai includes the Dempsey
Vanderbilt Hotel but is indeed all part of the Setai and a single property.
Transcript at p. 13.
7
and the Project:
So half of our rooms face due south into a 11-story parking
garage. So that has been the primary design challenge for this
project, how do we address that wall that faces us and that cuts
off the view ....
You will see that the real reason for the southern addition
is to reorient those southern rooms to face east and to minimize
the impact of that garage that remains ....
They blocked their views. Once they blocked their views,
they are now claiming that we're responsible somehow for
maintaining their view across our property even though could
have easily maintained their own view of the ocean. They had it
and chose to give it up.
Id. at p.15-16.
Thereafter, the Project's architects made a full presentation on the
details of the proposed modifications and additions that were the subject of
the application. Id. at pp. 17-35.
Setai's representative testified before the HPB and started his
presentation by stating, "We're here basically because we like the project.
And when I say we like this project, the overall feeling of the Setai community
is this is a very good project and were supportive of it." Id. at p. 41.
Notwithstanding Setai's position, its objections at the hearing were
limited to two arguments. First, that it should have a view corridor over the
Project, which it believes is part of the Certificate of Appropriateness criteria.
Second, that because the City is vacating its right of way and the Project will
be utilizing that right of way, the City was required to join in the Certificate of
8
Appropriateness application. Id. at pp. 42-47.
In response to the view corridor issue, Deborah Tackett, Historic
Preservation Manager explained the view corridor criteria, which differed
from Setai's argument:
MS. TACKETT: Mr. Chair, if I could just clarify a couple of
things that were said during public comment. To address Mr.
Robbins' [Attorney for Setai] concern about the view corridors,
staff did address view corridors in our analysis. And I would point
out that the board is required to contemplate view corridors within
the certificate of appropriateness criteria.
There are a couple of the criteria that deal with impact of
view corridors. And view corridors--from our perspective and our
analysis is the-from the public view. So when we talk about
preserving view corridors that are important to the district, we're
talking about view corridors that are visible to the public at the
pedestrian level. So that was analyzed as part of our
recommendation.
Id. at pp. 49-50.
Ms. Tackett's testimony relating to view corridors, was supported by
Staff' recommendation as detailed above. Vol. 1 16-18.
On rebuttal the Applicant explained the status of the right of way:
MR. MCDOWELL: May I just, one other technical?
The reason the city didn't sign our application is because there
was a requirement in our application that we couldn't come
before you until the city commission had taken action on both the
ordinance and roadway application. We own it. And, therefore,
they are not required to sign the application.
Id. at p. 55.
Indeed, the Applicant's position regarding ownership of the right of
9
way was also confirmed by City's Manager's recommendation in support of
the resolution to vacate the right of way:
LEGAL EFFECT OF RIGHT-OF-WAY VACATION
The City is currently not the underlying fee simple owner of the
Street ROW, and does not hold legal title to the ROW. Instead,
the City, holds a right of way dedication, which confers on the
public an exclusive right of use, so long as the dedicated right of
way is used for the purpose of the dedication (namely, for
pedestrian and vehicular access) ....
Vol. 1 A. 213.
Furthermore, the City recognized that the Vacation was dependent
upon the successful approval of the subject Certificate of Appropriateness.
The provisions of the "Vacation and Right of Way Improvement and
Maintenance Agreement for Seagull Hotel Site at 100 21 Street," which was
attached to the Vacation resolution, expressly recognized that this right of
way was part of the subject Historic Preservation Board application and that
the initial partial payment to the City for the vacation is to be paid "within
thirty (30) days following Historic Preservation Board approval for the
Proposed Development becoming final and nonappealable (the "First
Installment")" .... Vol. 1 A. 231.
At the conclusion of the hearing, the HPB voted unanimously to
10
approve the Certificate of Appropriateness.5 Id. at p. 100 This appeal
followed.
Standard of Review
At the outset it is important to set forth the limited nature of the review
before the Special Magistrate. Miami Beach Code, Section 118-9(c}(4}
provides that in the review an order of the Historic Preservation Board, the
Special Magistrate must determine whether: (a} procedural due process was
accorded, (b} the essential requirements of law were observed, and (c) the
decision was supported by substantial competent evidence. 6
The City's code, although an appeal, has mimicked the review
provided from what ordinarily would be a review from an administrative
decision to circuit court known as "first tier certiorari" review. See Broward
Cty. v. G.B. V. Int'/, 787 So. 2d 838 (Fla. 2001 ); City of Deerfield Beach v.
Vail/ant, 419 So. 2d 624 (Fla. 1982); Haines City Community Development
v. Heggs, 658 So. 2d 523 (Fla. 1995).
5 There was a separate unanimous vote to approve a variance to allow the
Bvlgari sign to front on Collins Avenue, however, that variance is not an
issue raised in the appeal.
6 Appellants have not raised an issue that procedural due process was not
provided.
11
A local government's quasi-judicial decision must be upheld if there is
any competent substantial evidence supporting it. Dorian v. Davis, 87 4 So.
2d 661 (Fla. 5th DCA 2004); Eckler v. Orange County, 763 So. 2d 545 (Fla.
5th DCA 2000) (holding that a quasi-judicial determination by a local
government should be upheld if any valid reason is supported by the record).
In Dusseau v. Metro. Dade County Bd. of County Com'rs, 794 So. 2d
1270, 1275-76 (Fla . 2001 }, the Florida Supreme Court clarified that:
The sole issue before the court on first-tier certiorari review is
whether the agency's decision is lawful. The [circuit] court's task
. . . is simple: The court must review the record to assess the
evidentiary support for the agency's decision. Evidence contrary
to the agency's decision is outside the scope of the inquiry at this
point, for the reviewing court above all cannot reweigh the "pros
and cons" of conflicting evidence. While contrary evidence may
be relevant to the wisdom of the decision, it is irrelevant to the
lawfulness of the decision. As long as the record contains
competent substantial evidence to support the agency's
decision, the decision is presumed lawful and the court's job is
ended. (emphasis added)
Accord, Town of Manalapan v. Gyongyosi, 828 So. 2d 1029, 1034 (Fla . 4th
DCA 2002); see also Fla . Power & Light Co. v. City of Dania, 761 So. 2d
1089, 1093 (Fla. 2000) (holding that where the circuit court "substituted its
judgment for that of the City ... the circuit court departed from the essentia l
requirements of the law"); City of Hialeah Gardens v. Miami-Dade Charter
Found., Inc., 85i So. 2d 202, 206 (Fla. 3rd DCA 2003) (holding that
12
reweighing the evidence is synonymous with failing to observe the essential
requirements of the law).
In reviewing the City's decision on "first tier" certiorari "the circuit court's
[or in this case the Special Magistrate's] task is to review the record for
evidence that supports the agency's decision, not that rebuts it -for the court
cannot reweigh the evidence." (emphasis original), Broward Cty. v. G.B. V.
Int'/, 787 So. 2d 838, 846 n.25 (Fla. 2001 ); See Haines City Cmty. Dev. v.
Heggs, 658 So.2d 523, 530 (Fla. 1995).
Board's Decision Supported by Substantial Competent Evidence,
and Essential Requirements of Law were Observed
The Department's recommendation together with the testimony of the
Department representative Ms. Tackett, alone constitutes substantial
competent evidence to support the Historic Preservations Board's approval
of the Certificate of Appropriateness. See Village of Palmetto Bay v. Palmer
Trinity Private Sehl., Inc., 128 So. 3d 19, 26-27 (Fla 3rd DCA 2012) (staff
report recommendation, in which "all applicable criteria" were reviewed,
constitutes competent substantial evidence); City of Hialeah Gardens v.
Miami-Dade Charter Found., Inc., 857 So. 2d 202, 205 (Fla. 3rd DCA 2003)
(testimony of professional staff, when based on professional experiences
13
and personal observations and information in application and site plan
constitute competent substantial evidence).
Setai raises two issues neither of which, warrants reversal of the
Historic Preservation Board's decision. F irst , Setai argues that the City
should have joined the application because the City is the owner of the right
of way, which the City Commission vacated and is being utilized by the
Proj ect. Counsel for the Applicant explained that it cou ld not proceed with
the application until the City took prior action on the vacation of the roadway
and that the Applicant owns the roadway. Indeed, as noted above , the City
recognized that the Applicant owns the right of way and further recogn ized
that the property was part of the Certificate of Appropriateness making a
condition of payment dependent on the approval of such Certificate and afte r
all appeals have been taken . Vol . 1 A . 231
Furthermore, it is well established under Florida Law that a property
owner's dedication of right of way does not transfer the title of the property
to the City. The City is simply the t rustee or steward of the public rights-of-
way fo r the use and benefit of its citizens . Sun Oil Co. v. Gerstein, 206 So.
2d 439, 441 (Fla. 3rd DCA 1968) ("public places and rights-of-way of a
municipality are held in trust by the authorities for the benefit of the public to
be used for proper purposes; however, it is well settled that this public trust
14
does prevent the abandonment, vacation or discontinuance ... "); Robbins v.
White, 42 So. 841, 843 (Fla. 1907) ("A dedication of land to the public for
street purposes, in the absence of a clear contrary intent, does not divest the
owner of title to the land, but merely subjects the same to the public
easement for street purposes.") ; Coral Gables v. Old Cutler Bay
Homeowners Corp., 529 So. 2d 1188, 1189-90 (Fla. 3rd DCA 1988)
("Acceptance of a common law dedication does not pass the fee in land. The
interest acquired by the municipality is generally held to be in the nature of
an easement."). Accordingly, there was no error in the City not being part of
the application . 7
Setai's other objection is that their view is being impacted by the
Project, which it argues is inconsistent with Certificate of Appropriateness
criteria. They also separately rely on a provision in the RM-3 Residential
Multifamily, High Intensity zoning district Section 142-246(d) which provides:
( d) Notwithstanding the above, for oceanfront lots with a
contributing structure and with no frontage on Collins Avenue
that are located in the architectural district, the overall height of
ground floor additions may exceed five stories and 50 feet, but
7 The Appellants makes no claim that they were prejudiced that the City was not a
co-applicant. Indeed, as pointed out in oral argument the only party that could have
been prejudiced is the City. Of course, the City recognized as part of the Vacation
that the Applicant would be seeking a Certificate of Appropriateness before the
Historic Preservation Board.
15
shall not exceed the height of the existing contributing structure
plus the height of any rooftop addition approved by the historic
preservation board in accordance with subsection 142-
1161(d)(5}, up to a maximum of 120 feet, if the following
conditions are satisfied:
( 1) The proposed addition shall not be attached to front or street
side elevations, nor along any other principal elevations or
facades, as determined by the historic preservation board.
(2) The proposed additions shall not impede the appearance or
visibility of architecturally significant portions of an existing
structure, as determined by the historic preservation board.
(emphasis supplied)
It is subsection 2 of this provision that the Appellants claim reliance on, but
as can be seen, this subsection merely vests that determination in the
Historic Preservation Board which also happens to be a requirement in the
Certificate of Appropriateness criteria .
Staff's representative explained that the Certificate of Appropriateness
criteria is to address public view corridors not any private party's view. The ·
governing rule of law is that an agency's interpretation of a statue or
regulation that the agency is charged with administering will be given great
deference by the courts and will not be overturned unless clearly erroneous
or contrary to law. See Murciano v. State 208 So. 2d 130 (Fla 3rd DCA 2016);
Metropolitan Dade County v. P. J. Birds Inc., 654 So. 2d 170, 175 (Fla. 3rd
16
DCA 1995). Legal Envtl. Assistance Found., Inc. v. Board of County
Comm'rs of Brevard County, 642 So. 2d 1081, 1083 (Fla. 1994).8
Indeed, the City's interpretation regarding views is consistent with
Florida law that a property owner the does not have right to a view.
Fontainebleau Hotel Corp v. Forty-Five Twenty-Five, 114 So.2d 357 (Fla. 3rd
DCA 1959). A number of cases over the years have relied on the
Fontainebleau case. See e.g., Mickel v. Norton, 69 So. 3d 1081 (Fla. 2nd DCA
2011); Messett v Cohen, 741 So.2d 619 (Fla. 5th DCA 1999); White v.
Buckwalter, 973 So.2d 833 (Fla. 3rd DCA 2007); Town of Indialantic v. Nance,
400 So.2d 37 (Fla. 5th DCA 1981) aff'd Nance v. Town of Indialantic 419 So.
2d 1041 (Fla. 1982 ).
In this case as noted above, the Staff recommendation and Ms.
Tackett's testimony confirmed that public view corridors have been
maintained by the Project. While the Appellant disputes that judgment, it is
not the role of the Special Magistrate to substitute the Special Magistrate's
judgement for the Historic Preservation Board, which relied on Staff's
recommendation in making its decision. While any substantial competent
8 In 2018 the Florida Constitution amended Article V creating Section 21
limiting State agency deference when interpreting state laws and rules.
This limitation does. not apply to local agencies interpreting municipal
enactments.
17
evidence to support the Historic Preservation Board 's decision is all that is
necessary, in this case there was ample evidence to support the Historic
Preservation Board's decision. The Special Mag istrate also finds that the
essential requirements of law were observed.
Based on the above, the Historic Preservation Board's decision is
AFFIRMED.
Dated: May 25, 2022
Craig
Special Magistrate
Copies to: Cynthia L. Neves, Clerk of the Special Magistrate
All counsel of record
18