# Third District Court of Appeal

State of Florida

Opinion filed December 16, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D14-2935

Lower Tribunal No. 12-351

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### Errol Alvey, et al.

, Petitioners,

vs.



### City of North Miami Beach, et al.,

Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate

Division, John Schlesinger

, Abby Cynamon, and Andrea R. Wolfson, Judges.

Law Offices of Charles M. Baron, P.A., and Charles M. Baron

, for

petitioners.

Coker & Feiner, and Rod A. Feiner (Ft. Lauderdale); Jose Smith, City

Attorney, and Patricia Leigh McMillan Minoux, Assistant City Attorney

, for

respondents.

Before ROTHENBERG, LAGOA, and SCALES, JJ.

ROTHENBERG, J.In this second-tier certiorari proceeding, Errol Alvey, Charles M. Baron,

Shelly Clay, and Robert Taylor (“the petitioners”) seek review and quashal of the

decision of the circuit court entered in its appellate capacity, denying their petition

for writ of certiorari to quash the resolution passed by the Mayor and City Council

of the City of North Miami Beach (“the City”). The resolution grants Braha Dixie,

LLC’s (“the developer”) application to rezone its real property from CF,

Community Facility, and RM-23, Residential Mid-Rise Multi-Family, to B-2,

General Business. The developer seeks this zoning change to erect a hotel with

two ten-story buildings and an 87,700 square foot six-story office building with

25,600 square feet of ground floor retail space and a four-story, 600-space parking

garage.

Although we recognize that the scope of second-tier certiorari review is

extremely limited, see Custer Med. Ctr. v. United Auto. Ins. Co.

, 62 So. 3d 1086,

1092 (Fla. 2010), we are compelled to grant the instant petition based on the circuit

court’s failure to apply the correct law, resulting in a miscarriage of justice. See

Auerbach v. City of Miami

, 929 So. 2d 693, 694-95 (Fla. 3d DCA 2006) (granting

second-tier certiorari relief from the circuit court’s affirmance of the variance

granted by the City of Miami based on the failure of both entities to apply the

correct law); see also Haines City Cmty. Dev. v. Heggs

, 658 So. 2d 523, 530 (Fla.

1995) (holding that “applied the correct law” is synonymous with “observing the

2essential requirements of law”). As this Court has stated at least twice, “[t]he law

.

. . will not and cannot approve a zoning regulation or any governmental action

adversely affecting the rights of others which is based on no more than the fact that

those who support it have the power to work their will.” Auerbach

, 929 So. 2d at

695 (quoting Allapattah Cmty. Ass’n of Fla. v. City of Miami

, 379 So. 2d 387, 394

(Fla. 3d DCA 1980)).

A. The location of the subject property

The subject property sits on the west side of West Dixie Highway on the

northern most boundary of the City. This area of West Dixie Highway is a twolane roadway with a speed limit of 30 mph. In the area where this property is

located, the property abutting West Dixie Highway is primarily zoned B-1, limited

business, with a height restriction of two stories. The stated purpose of this B-1

zoning designation is to limit the businesses along West Dixie Highway to those

“of a convenience nature” and to serve “the essential and frequent needs of

adjacent residential neighborhoods.” North Miami Beach City Code (“the City’s

Code”), Sec. 24-51(A).

There are only three pieces of property not zoned B-1 on the west side of

West Dixie Highway. One is the subject property, which is partially zoned RM23, which is a high density residential zoning designation with a permitted use of

residential mid-rise multi-family buildings with a three-story height restriction, and

3the remaining portion of the subject property is zoned CF, community facility,

which also has a three-story height restriction. Prior to the developer’s acquisition

of the subject property, the portion zoned CF housed a one-and two-story nursing

home. The second piece of property not zoned B-1 is a very large 249-acre track

of land that is directly north of and which abuts the subject property. This large

track of land is occupied by a park and golf course (the Greynolds Park & Golf

Course), and along the eastern border of Greynolds Park is the Oleta River, which

was used by both the Tequesta and the Seminole Indians. The third piece of

property not zoned B-1 is a track of land just south of the subject property which is

zoned recreational open space. All four zoning designations, CF, RM-23,

Greynolds Park, and the recreational open space, are for uses more restrictive than

the B-1 limited business zoning along the west side of West Dixie Highway.

To the west and southwest of the subject property, the zoning is RM-23 high

density residential with a three-story height restriction, and farther to the west of

those parcels are low density single family homes. To the south of the subject

property abutting West Dixie Highway, there is a strip of land zoned B-1 limited

business, and farther south it is zoned recreational open space.

Thus, the subject property is bordered on the east by West Dixie Highway;

the property to the north is zoned B-1 limited business; the property to the west is

all residential, beginning with a three-story higher density designation and flowing

4into a low density single-family home designation; to the north is a park and golf

course; and to the south the land is zoned B-1 and recreational open space. There

is no land zoned B-2 general business on the west side of West Dixie Highway.

Along the eastern side of West Dixie Highway, the property is zoned B-1 limited

business, and farther east are railroad tracks bordered on both sides with green

space. Thus, there is no land zoned B-2 general business on the east side of West

Dixie Highway either.

B. The City’s Code

Relevant to this certiorari petition is the following section of the City’s

rezoning requirements and “rezoning review standards.” Sec. 24-174(B)(2) of the

City’s Code mandates that “ The proposed change would be consistent with and

in scale with the established neighborhood land use pattern. ” (emphasis added)

As will be detailed below, the developer failed to present any evidence, and the

record reflects that the City failed to make any findings regarding section 24-

174(B)(2), and, in fact, the City declined to apply this section of its Code, stating

that it was premature to do so. Thus, the City failed to consider and apply its own

Code.

Instead of presenting any evidence that the proposed zoning change would

be “ consistent with and in scale with the established neighborhood land use

pattern ,” the developer presented evidence and argued that the proposed zoning

5change would be “ compatible ” with the general area. The City also focused on

compatibility and essentially approved the rezoning request, which was a

necessary prerequisite for the proposed development project, based upon its

finding that it would be an economic benefit to the City.

The circuit court’s order is equally defective. The circuit court made no

reference to or findings as to section 24-174(B)(2), or any section of the City’s

code. Instead, in conclusory form and language, the circuit court found that the

City’s decision was based on competent substantial evidence, the essential

requirements of law were met, and due process had been accorded. The circuit

court, however, must have applied the wrong law because the developer presented

no evidence that the proposed zoning change would be consistent with and in scale

with the established neighborhood land use pattern and because the City made no

findings that it would be consistent with and in scale with the established land use

pattern and specifically refused to consider section 24-174(B)(2); nor could the

City have considered it because the only evidence presented on this requirement

was totally adverse.

Thus, we are not reweighing the evidence

— which we cannot do. The City

failed to apply its own city code and found that the proposed zoning change would

be “compatible” and economically beneficial to the City, and the circuit court

departed from the essential requirements of the law by finding that there was

6competent substantial evidence to support the City’s improper standard for review

when considering a proposed zoning change.

C. The approval process

The subject property was zoned residential on its south end and community

facility on its north end. After purchasing the property, the developer applied for a

small-scale amendment to the Future Land Use Map (“FLUM Amendment”) and

for a rezoning of the property. Although the City’s Planning and Zoning Board

recommended against the FLUM Amendment, the City approved the FLUM

Amendment and proceeded to consideration of the developer’s rezoning

application.

The first step with respect to the rezoning application was consideration by

the City’s Planning and Zoning Board. The application requested that the subject

property be rezoned to B-2, which is a general business designation. Unlike the

properties bordering West Dixie Highway in that area, which are zoned B-1

limited business, with a two-story height restriction, a B-2 designation would

permit a height of fifteen stories. Also, whereas section 24-51(A) of the City’s

Code states that the intent of the B-1 zoning designation is to provide “office, retail

and service uses of a convenience nature, which satisfy the essential and frequent

needs of adjacent residential neighborhoods,” section 24-52(A) of the City’s Code

provides that the intent of its B-2 zoning designation is for development of retail

7and service commercial uses of a general nature which serve the diverse consumer

needs of the entire community.” Thus, whereas the B-1 zoning designation

provides for suitable sites for development of local businesses that cater to the

needs of the surrounding residents, the B-2 zoning designation serves the business

needs of the entire City. The B-2 zoning designation, therefore, is much broader. It

permits uses not permitted in a B-1 zoning district and includes conditional

permitted uses such as bars, lounges, package liquor stores, hotels and motels, and

parking garages.

The City’s Planning and Zoning Board voted 5-1 against the proposed

rezoning application and recommended denial of the rezoning application. The

developer’s application then proceeded to the City’s Zoning Code’s required two

readings. Although the City’s Planning and Zoning Board recommended denial,

and the developer made no presentation whatsoever at the first reading conducted

on March 20, 2012, the City voted in favor of the rezoning application without any

comment and without addressing its Code.

The second reading occurred on June 5, 2012. The petitioners and several

more residents living next to or near the subject property appeared at this meeting

and spoke in opposition of the developer’s B-2 rezoning application. Generally,

the objectors had no objection to a rezoning of the property to B-1, which limits

the type of businesses and services that can operate on the property and carries a

8two-story height restriction, but they were unanimously opposed to the proposed

B-2 rezoning designation, which would allow for construction up to fifteen stories

and for uses inconsistent and incompatible with this residential neighborhood

bordered by B-1 neighborhood businesses. Like the first reading, the developer

made no presentation at the second reading, and the City voted to table the

application for further consideration.

The third and final reading was on September 4, 2012. At this reading, the

developer presented two experts: (1) Peter Gallow, a professional engineer; and (2)

Joaquin Vargas, a traffic engineer. Charles M. Baron, representing the objecting

homeowners, presented many live witnesses who voiced their objections to the

proposed B-2 rezoning application, plus fifty letters written by affected

homeowners who likewise objected. At the conclusion of this hearing, the City

unanimously approved the developer’s B-2 rezoning application.

D. The evidence presented

At the final reading held on September 4, 2012, Mr. Baron made opening

remarks, and he was followed by a host of objecting residents. The main

objections and concerns were: (1) the height of the buildings permitted with a B-2

designation (15 stories); (2) the height of the proposed buildings for this project

(10 stories); (3) the types of uses permitted with a B-2 general business

designation; (4) the nature of the project being proposed, which would infuse a

9large number of people from outside of the neighborhood into this residential

neighborhood; (5) the traffic this project, consisting of two ten-story hotel

buildings and the six-story office and retail business building with a four-story

parking garage, would add to this already congested two-lane, 30 mph roadway;

and (6) the impact, visually and otherwise, to Greynolds Park.

Next, the developer’s attorney, Rod Feiner, presented his opening remarks,

and then he called the developer’s experts, Peter Gallo and Joaquin Vargas, to

testify. Their testimonies were brief and will be summarized below.

Mr. Gallo, a professional engineer, who was admitted in prior similar

proceedings as an expert in planning and engineering, testified that he performed a

“ compatibility ” study of the area, which he identified as the Biscayne Boulevard

corridor, and that the proposed project was “ compatible with the other business

areas located along Biscayne Boulevard .”

Mr. Vargas is a registered traffic engineer. His testimony was based on his

review of a traffic study performed two years prior to the hearing and he admitted

that the study considered the traffic conditions along Biscayne Boulevard and that

no study had been performed for traffic conditions and flow along West Dixie

Highway. Based on his review of this study, Mr. Vargas testified that there would

not be any significant traffic impact if the rezoning application was approved. 1

1 Although it is clear that Mr. Vargas relied solely on a two-year-old study

regarding traffic conditions on Biscayne Boulevard (an eight-lane commercial

10E. The City’s vote

First to speak was Mayor Vallejo. The Mayor focused his remarks and

decision on the “need to grow

. . . [and] move forward,” and the expected $700,000

tax revenue, jobs, and money hotel guests and customers would spend in the area if

the rezoning application was approved and the proposed hotel project was built.

Councilman De Rose concurred, stating, “The only thing I can say is that

this project will create jobs and increase our tax base and definitely will be better

than what we have now.” Councilwoman Smith noted that the City was in a

financial hole and the proposed project was a way to climb out of that hole

— that it

was “desperately needed to fulfill our obligation[s].” Councilwoman Kramer

agreed with Councilwoman Smith that the City needed “to progress,” and

Councilwoman Martell stated that it would be nice to have a ballroom where

weddings and conferences could be held in the City, and that the proposed hotel

would provide that amenity.

After these comments, the City unanimously approved the developer’s

rezoning application.

ANALYSIS

roadway) as opposed to a current study of West Dixie Highway (a two-lane 30

mph roadway), because we are not permitted to reweigh the evidence presented,

we do not address or consider the sufficiency of this evidence.

11Section 24-174(B)(2) of the City’s zoning code mandates that, before the

City may grant a rezoning request, it must find that “[t]he proposed change would

be consistent with and in scale with the established neighborhood land use

pattern.” Because the City made no such finding and there was absolutely no

evidence presented that “[t]he proposed change would be consistent with and in

scale with the established neighborhood land use pattern,” we grant the petition.

Glaringly omitted from this record is any consideration of Section 24-

174(B)(2) of the City’s code. The only evidence presented by the developer was

that the proposed zoning change would be “compatible” with the Biscayne

Boulevard corridor. That finding is clearly supported by the record. The Biscayne

Boulevard corridor is completely zoned B-2 or higher, as it is an eight-lane highly

commercial business district. B-2 zoning would, therefore, be “compatible” with

the zoning along Biscayne Boulevard. However, the subject property is not

located along the Biscayne Boulevard corridor and “compatibility” is not the

standard. Even the City Planner, Mr. Heid, who is in favor of the rezoning and the

project, admitted that to refer to this project as being along the Biscayne Boulevard

corridor was “a bit of a reach

. . . I see it personally as a West Dixie Highway

corridor.” And the City Code requires not compatibility, but rather that the

rezoning change be consistent with and in scale with the established neighborhood

12land use pattern. The established land use pattern along the West Dixie Highway

corridor is residential, parks, recreational open space, and B-1 limited business.

It is not as though the City and the circuit court appellate panel were not put

on notice as to the standard that must be applied before a rezoning application may

be approved by the City. Mr. Baron, on behalf of the objectors, objected to the

expert testimony as insufficient as a matter of law. Specifically, he noted that the

developer failed to present any evidence that the proposed zoning amendment

would comply with the City’s code, that compatibility was not the required

standard, and that the subject property was not located along the Biscayne

Boulevard corridor, which was the only area was considered by the experts.

However, in response, the City Attorney stated:

What I would say is this is not the point of a hearing for a site plan

approval. Until a site plan is brought forward, this argument is

premature.

This was clearly error and conclusively demonstrates that the City failed to apply

the correct law when voting on the proposed rezoning amendment, and that the

circuit court departed from the essential requirements of the law by affirming the

City’s decision.

In addition to the developer’s failure to present any evidence that a rezoning

of the subject property would be consistent with and in scale with the established

neighborhood land use pattern and the City Attorney’s misadvice regarding the

13applicable law, the record is completely devoid of any suggestion that the City

even considered Section 24-174(B)(2) of the City’s code. Not one council member

or the Mayor ever addressed the City’s code requirements. As a group, they spoke

only of the financial benefits to the City if the proposed project would be built

—

not whether adding a B-2 general business district to an area zoned residential,

parks, recreational open space, and B-1 (limited business with a two-story height

restriction) would be consistent with and in scale with the land use pattern along

the West Dixie Highway corridor.

“[T]hose who own property and live in a residential area have a legitimate

and protectable interest in the preservation of the character of their neighborhood

which may not be infringed by an unreasonable or arbitrary act of their

government.” Allapattah Cmty. Ass’n

, 379 So. 2d at 392. Zoning ordinances are

enacted to protect citizens from losing their economic investment or the comfort

and enjoyment of their homes by the encroachment of commercial development by

an unreasonable or arbitrary act of their government. Id. Thus, the burden is upon

the landowner who is seeking a rezoning, special exception, conditional use

permit, variance, site plan approval, etc. to demonstrate that his petition or

application complies with the reasonable procedural requirements of the applicable

ordinance and that the use sought is consistent with the applicable comprehensive

zoning plan. Bd. of Cnty. Comm’rs of Brevard Co. v. Snyder

, 627 So. 2d 469, 472

14(Fla. 1993). Because rezoning actions have an impact on a limited number of

persons or property owners, and the decision is contingent on facts arrived at from

distinct alternatives by applying, rather than setting policy, the nature of the

proceeding is quasi-judicial subject to strict scrutiny on certiorari review. Snyder

,

667 So. 2d at 474-75.

CONCLUSION

We conclude that the circuit court appellate panel departed from the

essential requirements of law by failing to apply the correct law

— the City’s Code,

Section 24-174(B)(2)

— in its first tier certiorari review of the City’s rezoning

decision. Section 24-174(B)(2) requires the submission of evidence and a finding

by the City that the proposed zoning amendment would be consistent with and in

scale with the established neighborhood land use pattern. Because there was no

evidence presented regarding this requirement and the City made no such finding,

nor could it without the submission of such evidence, the circuit court’s review of

the City’s rezoning decision departed from the essential requirements of law

because, like the City, the circuit court failed entirely to consider, much less apply,

the essential provision of the City’s zoning code. We, therefore, grant the petition

and quash the circuit court’s decision affirming City Resolution R 2012-9.

Petition granted.

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