City of Miami's Response

8/18/2019 City of Miami's Response

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APPEAL CASE NO.: 14-004 AP

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

JACOB PFEFFER, CATALINA MONIKA POBOG-MALINOWSKA, VINTAGELIQUOR AND WINE BAR II, ROSI BARRIOS, BLO DRY BAR FLORIDA,

LLC N/K/A HEAD KANDI, LLC, SANDIROSE MADGER, YASMINEGARATE, ANTHONY DA VIDE, DAVID LE BATARD, AND LEBO STUDIOS,

Petitioners,

vs.

CITY OF MIAMI, FLORIDA, A POLITICAL SUBDIVISION OF THE STATEOF FLORIDA, AND WAL-MART STORES EAST, LP, A DELAWARE LP,

Respondents.

RESPONDENTS’ RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

VICTORIA MÉNDEZ, City AttorneyJOHN A. GRECO, Deputy City AttorneyFORREST L. ANDREWS, Assistant CityAttorneyAttorneys for Respondent, City of Miami444 S.W. 2nd Avenue, Suite 945Miami, FL 33130-1910Tel.: (305) 416-1800Fax: (305) 416-1801


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RESPONSE TO PETITION FOR WRIT OF CERTIORARI

The Respondent, City of Miami (the “City”), by and through its undersigned

counsel, hereby files this Response to Petitioner Jacob Pfeffer, et. al’s

(“Petitioners”) Petition for Writ of Certiorari pursuant to this Court’s order dated

January 7, 2014, and in support thereof states as follows:

I.

INTRODUCTION

This case involves an appeal from the decision of the City of Miami

Commission (“Commission”) affirming the Director of the Planning and Zoning

Department’s (“the Director”) issuance of a Class II Special Permit to Wal-Mart

Stores East LP (“Wal-Mart”).

The petition currently before this Court is limited to three issues: (1) whether

the Director must follow the Urban Development Review Board (“UDRB”) and the

Neighborhood Enhancement Team Office’s (“NET Office”) recommendations; (2)

whether the Director and Commission’s decisions contained sufficient findings; and

(3) whether the City departed from the essential requirements of law by granting

variances under the guise of a Special Permit.

Since the Director considered the advisory recommendations of the UDRB

and the NET Office, the Director and Commission’s decisions contained sufficient


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findings, and the Commission adhered to the essential requirements of the law, the

instant petition must be denied.

The following response will refer to documents contained in the Appendix of

Exhibits to Petition for Writ of Certiorari submitted by the Petitioners to this Court.

Specifically, the symbol “Ex.” refers to Petitioner’s exhibits, followed by a tab

number, and page number when applicable.

II.

Statement of Case and Facts

On August 21, 2012, Wal-Mart submitted its application to the Department of

Planning and Zoning for a Class II Special Permit (“the permit”) in order to build a

store that would incorporate traditional retail merchandise, full service grocery, and

garden center. (Ex. 1). The proposed site for the Wal-Mart store is 3055 North

Miami Avenue, Miami, Florida which is zoned Midtown Miami West (SD 27.2)

under the City of Miami Zoning Code (the “Code”). Id.

Prior to issuing the permit, the Director referred Wal-Mart’s application for

review to the Zoning Section of the Planning & Zoning Department, Department of

Public Works, Office of Transportation, the Wynwood Neighborhood Enhancement

Team Office, (the “NET Office”), and the Urban Development Review Board

(“UDRB”). (Petition, 5; Ex. 4; Ex. 9).


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A meeting was held before the UDRB on February 4, 2013. (Ex. 5).

Following Wal-Mart’s presentation of the Project, the UDRB deferred its approval

until February 20, 2013 where Wal-Mart would present a revised Project. (Ex. 6).

Among the six conditions which the UDRB focused on were: studying the elevation

along N.E. 31st street and compliance with the rooftop parking requirements of the

Code. Id.1

On February 20, 2013, the meeting before the UDRB continued. (Ex. 7).

During its presentation, Wal-Mart demonstrated that it had satisfied the UDRB’s

conditions by studying the elevation along N.E. 31st street and complying with the

rooftop parking requirements of the Code.2 (Ex. 7 at 8:4-16:24). Despite this, the

UDRB recommended that the Director deny the application for a Class II Special

Permit due to: 1) “[t]he applicant’s failure to comply with Miami 21 with respect to

the liner uses on both North Miami and Midtown Boulevard on the second and third

level,” and 2) the “failure of the applicant to address the rooftop parking, screening

consistent with Miami 21.” (Ex. 7 at 74:20-75:25; Ex. 8). The UDRB

1 The other conditions concerned pedestrian entrances, driveway width, drivewaymaneuverability, and providing additional shade trees. (Ex. 6).

2 Wal-Mart also announced that it had obtained a waiver from Public Worksregarding the driveways, revisited the pedestrian entry ways, and providedadditional shade trees. (Ex. 7 at 6:16-20, 10:10-11:20; 12-22-13:3-16:10).


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acknowledged that it is only a “recommendation board” without any power to

compel adherence with its recommendation. (Ex. 7 at 73:7-8; 76:3-19).

On August 12, 2013, the Director conditionally approved the permit and

issued the City’s Class II Special Permit Final Decision which stated that

“[c]omments and recommendations received from Departments and Boards have

been duly considered in this final decision.” (Ex. 9 at page 1). Also, the Director

made the following written findings:

(1)The proposed new construction project consists of 203,277 square foot building which includes a 158,322 sq.ft. Wal-Mart store containing general retail, full servicegrocery and vision center. The building will also includedouble volume retail liner use space fronting MidtownBoulevard and liner space for retail support or other

permitted uses on North Miami Avenue. The project willalso provide approximately 577 new off-street parkingspaces above the second and third level of the ground-

floor retail;

(2) The proposed project will be beneficial to the surroundingarea by providing new retail and service facilities whilecreating jobs for the area;

(3)The proposed project, as presented reflects revisions andrefinements made based on comments from reviewingDepartments and the Urban Development Review Board,

and is appropriate in scale and size pursuant to Section1305 and the Midtown Overlay District 6.27.2 MidtownMiami West;

(4) The proposed project is in compliance with the MiamiComprehensive Neighborhood Plan in that it promotesgood urban infill and is consistent with the Buena Vista


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East Regional Activity Center (RAC), designation asapplied to this property; and

(5) This application has been reviewed pursuant to Section

1305 of ZO 11,000 and the Miami 21 Code, Appendix C:Midtown Overlay District 6.27.2 Midtown Miami Westand found to be sufficient.

Based on the above findings and the considered advice of the officers and agencies consulted on this matter and

pursuant to Section 1306 of Zoning Ordinance 11000, asapplicable, and the Miami 21 Code Appendix C: MidtownOverlay District 6.27.2 Midtown Miami West, the subjectapplication is hereby approved subject to the plans andsupplementary materials submitted by the applicant andon file with the Planning and Zoning Department and theconditions listed in Exhibit “A.”

(Ex. 9 at pages 2-4).

On August 27, 2013, the Petitioners appealed the Director’s decision to the

Planning, Zoning and Appeals Board (“PZAB”). (Ex. 10). The sole issues raised

by the Petitioners in the appeal were that: (1) the permit unlawfully grants variances

from the governing code requirements; and (2) Wal-Mart’s application was legally

infirm as it did not contain certain affidavits and that Wal-Mart had two Projects

which it impermissibly sought to treat as one Project. (Id. at pages 2-6).

A public hearing was held before the PZAB on October 2, 2013. (Ex. 11; Ex.

12). During the hearing, Wal-Mart and the Director presented evidence that Wal-

Mart considered and implemented a number of the UDRB’s recommendations

including, incorporating second floor active liner use, a setback on the third floor,


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and compliance with the rooftop parking requirements of the Code. (Ex. 14; Ex. 15

at 81:11-110:22; 113:15-117:11; 118:11-119:1; 144:23-145:8).3 Moreover, the

Director testified that prior to making his decision, he considered the input from the

UDRB and all interested parties, including the reviewing departments. (Ex. 15 at

25:22-26:15, 27:18-29:2, 158:10-159:14, 187:20-188:9).

At the conclusion of the hearing, the PZAB voted in favor of approving the

Director’s decision and denying the appeal. (Ex. 15 at 212:11-13; Ex. 16). On

October 17, 2013, the Petitioners appealed the PZAB’s decision to the Miami City

Commission (the “Commission”). (Ex. 17). Again, the sole issues raised by the

Petitioners in the appeal were that: (1) the permit unlawfully grants variances from

the governing code requirements; and (2) Wal-Mart’s application was legally infirm

as it did not contain certain affidavits and that Wal-Mart had two Projects which it

impermissibly sought to treat as one Project. Id.

A de novo, quasi-judicial public hearing was held before the Commission on

November 21, 2013. (Ex. 18; Ex. 24). During the hearing, Wal-Mart presented

evidence that it addressed the issues raised by the UDRB. For instance, the

southern wall does not need to be decorated because it is an interior wall that does

3 Evidence was also presented that contrary to the UDRB’s belief, the southern wallwas not blank, but was in fact treated and scored. (Ex. 15 at 82:17-90:3).Furthermore, neither the Code nor the Design Standards apply to the southern wall

because it was an interior wall not fronting a primary street. (Id. at 86:5-90:3).


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not front a public street, the southern wall is not blank because it is proposed to be

treated and scored, there is second story liner use of the garage, there is an 85 foot

setback on the third story of the garage, and the rooftop parking was properly

concealed. (Ex. 24 at 73:8-11; 75:21-94:14). Further, the Director testified that

prior to making his decision, he considered the input from the UDRB and the NET

Office. (Ex. 24 at 5:3-6:8, 7:3-8:5).

Former Director of the Zoning and Planning Department, Ana Gelabert,

testified as an expert witness and confirmed, among other things, that the proposed

Project complied with the Code’s continuous design requirement, the Project

provided second story liner use, and the third story met the 85 foot setback

requirement. (Ex. 24 at 97:2-102:23; 106:23-116:3). She further testified that the

Wal-Mart application was properly issued. (Ex. 24 at 118:2-3).

The Commission then voted 3-0 to deny the appeal and uphold the Director’s

decision. (Ex. 24 at 186:20-22; Ex. 25). The Commission adopted Resolution R-

13-0471 which contained the following findings:

(a) The proposed project will be beneficial to the surroundingarea by providing new retail and service facilities while

creating jobs for the area;

(b)The proposed project, as presented reflects revisions andrefinements made based on comments from reviewingDepartments and the Urban Development Review Board,and is appropriate in scale and size pursuant to Section


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1305 and the Midtown Overlay District 6.27.2 MidtownMiami West;

(c) The proposed project is in compliance with the Miami

Comprehensive Neighborhood Plan in that it promotesgood urban infill and is consistent with the Buena VistaEast Regional Activity Center (RAC), designation asapplied to this property; and

(d) This application has been reviewed pursuant to Section1305 of ZO 11000 and the Miami 21 Code, Appendix C:Midtown Overlay District 6.27.2 Midtown Miami Westand found to be sufficient.

(Ex. 25).

Thereafter, the Petitioners filed the instant petition for writ of certiorari.

III.

Standard of Review

This Court reviews an administrative agency’s decision for whether the

agency afforded due process, whether the decision is supported by competent

substantial evidence, and whether the decision complies with the essential

requirements of the law. See City of Deerfield Beach v. Vaillant , 419 So. 2d 624

(Fla. 1982); Haines City Community Development v. Heggs , 658 So. 2d 523 (Fla.

1995).

Competent substantial evidence is “such evidence as will establish a

substantial basis of fact from which the fact at issue can reasonably be inferred (or)

… such relevant evidence as a reasonable mind would accept as adequate to support


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a conclusion.” Duval Utility Co. v. Florida Public Serv. Comm’n , 380 So. 2d 1028,

1031 (Fla. 1980) (citing De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)).

“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.” Dusseau v. Metro Dade

County Bd. of County Comm’rs , 794 So. 2d 1270, 1275-76 (Fla. 2001).

Generally, a ruling constitutes a departure from the essential requirements of

law when it amounts to a violation of a clearly established principle of law resulting

in a miscarriage of justice. See, Combs v. State, 436 So. 2d 93, 96 (Fla. 1983).

Local governments are charged with their interpretation and enforcement of

their codes, and their interpretation will not be overruled unless clearly erroneous.

See Las Olas Tower v. City of Ft. Lauderdale, 742 So. 2d 308 (Fla. 4th DCA 1999).

IV.

Argument

A.


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THE CITY COMPLIED WITH THE ESSENTIAL

REQUIREMENTS OF LAW BY CONSIDERING THE

RECOMMENDATIONS OF THE UDRB AND THE

NET OFFICE.

(1) The Plain Language of the Code Provides that the

UDRB and the NET Office’s Recommendations are

Merely Advisory

The Petitioners argue that “the City of Miami applied the incorrect law by

confusing the Miami 21 general authority granted to the Planning Director with the

more specific and curtailed Director’s authority, which is subject to the compliance

review and results of the UDRB evaluation.” (Petition at page 26). They are

incorrect. While a referral to the UDRB and NET Office may be required prior to

issuing a Class II Special Permit, following their recommendation is not.

In construing a statute, courts are to give effect to the legislative intent by first

looking to the actual language used in the statute. Joshua v. City of Gainesville, 768

So. 2d 432, 435 (Fla. 2000). When the statute is clear and unambiguous, courts will

not look behind the statute's plain language for legislative intent or resort to rules of

statutory construction to ascertain intent. See, Acosta v. Richter, 671 So. 2d 149,

153 (Fla. 1996); Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552,

553 (Fla. 1973). In such instance, the statute's plain and ordinary meaning must

control, unless this leads to an unreasonable result or a result clearly contrary to

legislative intent. State v. Burris, 875 So. 2d 408, 410 (Fla. 2004); Nicoll v. Baker,


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668 So. 2d 989, 990-991 (Fla. 1996) (when the statutory language is clear, “courts

have no occasion to resort to rules of construction—they must read the statute as

written, for to do otherwise would constitute an abrogation of legislative power.”).

Furthermore, no literal interpretation should be given that leads to an

unreasonable or ridiculous conclusion or to a purpose not designated by the

lawmakers. City of Boca Raton v. Gidman, 440 So. 2d 1277, 1281 (Fla. 1983).

Finally, the courts may not insert words or phrases in ordinances to express

intentions which do not appear. Powell v. City of Delray Beach, 711 So. 2d 1307,

1309 (Fla. 4th DCA 1998). Municipal ordinances are subject to the same rules of

construction as are state statutes. City of North Miami, 286 So. 2d at 553.

Here, the Petitioners incorrectly interpret section 1301.2, City of Miami

Zoning Code (11000)4 as imposing a requirement upon the Director to follow the

recommendations of the UDRB and the NET Office. The plain language of that

4 Section 2.2.1.1 of Miami 21 states: This Code replaces the ZoningOrdinance for the City of Miami, also known as Ordinance 11000 except thatSection 627, “SD-27 Midtown Special District” is hereby retained andincorporated as Appendix C hereto and all provisions of Ordinance 11000referred to in Section 627 shall be applied to Midtown Special District,

providing however that within the SD-27 Special District the Planning,Zoning and Appeals Board and procedures related to appeals thereto set out

by this Miami 21 Code shall replace the Zoning Board and procedures relatedto appeals thereto in Ordinance 11000.


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section clearly reflects that the Director merely has to consider the recommendations

of the UDRB and the NET Office. Section 1301.2 provides that:

[t]he Director shall make such referrals to other officers,agencies, boards or departments as are required byregulations relating to the particular special permit andmay make other referrals deemed necessary by him beforearriving at his decision. Decisions of the Director regarding Class II Special Permits shall be affected andlimited by reports received on referrals as provided inArticle 15, Section 1502. (emphasis added).

The UDRB was established “for the purpose of recommending whether the

design of developments and/or improvements pursuant to Miami 21 the zoning

ordinance of the city, as amended or superseded, are in conformance with city

guides and standards.” § 62-256, City of Miami Code. The powers and duties of

the UDRB are to “[r]eview and recommend to the director of planning and zoning,

for approval, approval with conditions or disapproval of applications for

applications for special permits ….” § 62-258(1), City of Miami Code.

The Petitioners concede that “referrals to the UDRB and NET Office were

made.” (Petition at page 26). However, they contend that the Director’s decision

was not “limited and affected” by the referrals. Id. In so doing, the Petitioners

erroneously assert that the terms “limited and affected” mean that the Director is

bound by the referral recommendations. This position defies the plain language and

purpose behind City of Miami Code sections 62-256, 62-258, and 1301.2, City of


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Miami Zoning Code (11000) which is to merely provide recommendations to the

Director. Even the UDRB acknowledged that it is only a “recommendation board”

without any power to compel adherence with its recommendation. (Ex. 7 at 73:7-8;

76:3-19).

Significantly, section 1502 of the City of Miami Zoning Code (11000)

clarifies the “affected and limited” language by stating that “[t]he director shall give

full consideration to advice or information received as a result of such referrals in

arriving at his decision.” Thus, the plain language of the City of Miami Zoning

Code (11000) clearly reflects the UDRB and NET Office’s recommendations

merely have to be considered by the Director; not followed.

Finally, the Petitioners’ interpretation of the Code would amount to a

rewriting of the Code's text which would lead to the unreasonable and absurd result

of divesting the Director of his discretion and authority to issue Class II Special

Permits. Therefore, contrary to the Petitioners’ position asserted in their petition,

the Director merely has to consider the UDRB and the NET Office’s

recommendations; not follow it.

(2) The Director Properly Referred Wal-Mart’s Applicationto the UDRB and the NET Office

The Petitioners argue that “[t]he language in Zoning Ordinance 11000, Article

13 is clear that the Director is ‘solely responsible’ for compliance-with code review.


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But this language does not negate the mandatory language requiring the referral ….”

(Petition, 25).

The Petitioners concede that “[t]he referrals to the UDRB and NET Office

were made.” (Petition, 5, 26). Furthermore, the record reflects that the referrals

were made. (Ex. 4; Ex. 9). Accordingly, the Petitioners’ claim is without merit and

the instant petition must be denied.

(3) The Director Considered the Recommendations of the

UDRB and the NET Office Prior to Making His

Decision

Pursuant to section 1301.2, City of Miami Zoning Code (11000), “[t]he

[Director] shall be solely responsible for review for compliance and consideration

of applications for Class II Special Permits.” (Emphasis added). Section 1502

provides that “[t]he director shall give full consideration to advice or information

received as a result of such referrals in arriving at his decision.”

Here, in making his decision, the Director stated that “[c]omments and

recommendations received from Departments and Boards have been duly

considered in this final decision” and that his decision was based on “the considered

advice of the officers and agencies consulted on this matter pursuant to Section

1306 of Zoning Ordinance 11000, as applicable, and the Miami 21 Code Appendix

C: Midtown Overlay District 6.27.2 Midtown Miami West.” (Ex. 9 at pages 1, 3-

4). Furthermore, the Director’s testimony before the PZAB and the Commission


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reflect that he considered the recommendations from the UDRB and the NET Office

prior to making his decision. (Ex. 15 at 25:22-26:15, 27:18-29:2, 158:10-159:14,

187:20-188:9); (Ex. 24 at 5:3-6:8, 7:3-8:5).

Since the City followed the essential requirements of law, the instant petition

must be denied.

B.THE DIRECTOR AND THE COMMISSION MADE

SUFFICIENT WRITTEN FINDINGS AND

DETERMINATIONS TO SUPPORT THEIR

DECISIONS.

(1) Petitioners Failed to Properly Preserve the Argument

that the Director’s Findings Were Insufficient.

It is well-established that a claim of error, even in the administrative context,

cannot be raised for the first time on appeal. See, Goodson v. Fla. Dep’t of Bus. &

Prof’l Regulation Div. of Real Estate, 978 So. 2d 195 (Fla. 1st DCA 2008); see

also, Clear Channel Communications, 911 So. 2d at 188 (affirming decision of

appellate division of circuit court that determined that appellants failed to preserve

legal challenges for review by failing to make contemporaneous objections before

city commission); Cortes v. City of Miami , 995 So.2d 604 (Fla. 3d DCA 2008).

Also, an appellate court cannot consider issues not presented or addressed by

the lower tribunal and not presented as issues for review. See, Sparta State Bank v.

Pape, 477 So. 2d 3, 4 (Fla. 5th DCA 1985).


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Petitioners contend that the Director “departed from the essential

requirements of law when [he] failed to set out the necessary findings in the Class II

Permit ….” (Petition, 30). However, this argument is not preserved for appeal

because the Petitioners failed to raise it before the PZAB and the Commission. (Ex.

10; Ex. 17; Ex. 15; Ex. 24); Sunset Harbour Cond. Ass’n v. Robbins, 914 So. 2d

925, 928 (Fla. 2005) (holding that to be preserved for appellate review, “an issue

must be presented to the lower court and the specific legal argument or ground to be

argued on appeal or review must be part of that presentation” (quoting Tillman v.

State, 471 So. 2d 32, 35 (Fla. 1985)); State v. Hunton, 699 So. 2d 320, 321 (Fla. 2d

DCA 1997); Parlier v. Eagle-Picher Indus., Inc., 622 So. 2d 479, 481 (Fla. 5th DCA

1993) (holding that “issues not timely raised below will not be considered on

appeal”).

Thus, by failing to present this argument to the PZAB and Commission for

review and consideration, the Petitioners are precluded from raising this issue in the

instant appeal.

(2)Even if the Argument is Properly Preserved, the

Director and Commission’s Findings Were

Sufficient.

Section 1305 states the following:

The City agent, board, or commission that is charged withdecisions concerning each of the special permits shallreview the proposal before them and shall make, or cause


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to be made, written findings and determinations inaccordance with the established applicable criteria setforth in this zoning ordinance and the City Code. Suchfindings shall be used to approve, approve with

conditions, or deny the pending application.

Here, the Director and the Commission’s written findings and determinations

are consistent with the design review criteria contained in section 1305 of the City

of Miami Zoning Code (11000) and the design standards contained in SD 27.2 of

the Code. Specifically, the findings conclude that the Project “as presented reflects

revisions and refinements made based on comments from reviewing Departments

and the Urban Development Review Board, and is appropriate in scale and size

pursuant to Section 1305 and the Midtown Overlay District 6.27.2 Midtown Miami

West.” (Ex. 9 at pages 2-4; Ex. 25). These findings are appropriate in light of the

facts that the Project incorporated second floor active liner use, a third floor

setback, was in compliance with the rooftop parking requirements of the Code,

provided additional shade trees, explained that there were no blank walls, and

addressed issues concerning pedestrian entrances, driveway width, and driveway

maneuverability. (Ex. 6; Ex. 7 at 6:16-20, 8:4-16:24, 10:10-11:20; 12-22-13:3-

16:10; Ex. 14; Ex. 15 at 81:11-110:22; 113:15-117:11; 118:11-119:1; 144:23-

145:8).

Next, the plain language of section 1305 does not require specific findings of

fact. Nevertheless, the Petitioners attempt to import such a requirement by relying


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on Dougherty v. City of Miami, 13 Fla. L. Weekly Supp. 959a (Fla. 11th Cir. July

14, 2006). In Dougherty, the City Commission reversed the Zoning Board’s

decision to issue a Class II Special Permit. Id. The Circuit Court for the Eleventh

Judicial Circuit stated, “[w]ithout making specific written findings, the Commission

issued a general statement that ‘the Class II Special permit does not meet the

applicable requirements of Zoning Ordinance No. 11000 as amended.” Id.

Consequently, the court reversed the City Commission’s decision for failing to

comply with section 1305. Id. Dougherty is distinguishable from the instant case.

First, while the City acknowledges that section 1305 requires written findings

and determinations, there is no requirement for specific findings of fact as stated by

the court in Dougherty and urged by the Petitioners. See, Powell, 711 So. 2d at

1309 (holding that the courts may not insert words or phrases in ordinances to

express intentions which do not appear). Moreover, in the present case, neither the

Director nor the Commission issued a general statement as in Dougherty. Indeed

both the Director and the Commission’s written findings state, among other things,

that:

(1)The proposed project, as presented reflects revisions andrefinements made based on comments from reviewingDepartments and the Urban Development Review Board,and is appropriate in scale and size pursuant to Section1305 and the Midtown Overlay District 6.27.2 MidtownMiami West; and


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(2) The proposed project is in compliance with the MiamiComprehensive Neighborhood Plan in that it promotesgood urban infill and is consistent with the Buena VistaEast Regional Activity Center (RAC), designation as

applied to this property.

(Ex. 9 at pages 2-4; Ex. 25).

The foregoing are not general statements akin to the one made in Dougherty

because they assert the grounds supporting the Director and the Commission’s

decisions. Accordingly, since the City followed the essential requirements of law,

the instant petition must be denied.

(3)Even if the Director and Commission’s Written

Findings Were Insufficient, Such Error Was

Harmless and their Decisions Were Supported by

Competent Substantial Evidence

Should this Court find, and the City does not so concede, that the Director

and Commission’s findings were insufficient, such error was harmless because there

was competent substantial evidence to support their decisions.

Harmless error occurs in a civil case when, focusing on the effect of the error

on the fact finder, it is more likely than not that the error did not contribute to the

judgment. Special v. Baux, 79 So. 3d 755, 771 (Fla. 4th DCA 2011) (pending

review in SC11-2511)); see also, Herbello v. Perez, 754 So. 2d 840 (Fla. 3d DCA

2000) (holding that in a civil case the test for harmful error is whether, but for such

error, a different result may have been reached).


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In the present case, the alleged failure to make sufficient written findings is

harmless. In Dougherty, the harm created by a lack of written findings was that it

deprived the appellate court of a meaningful opportunity to review the

Commission’s decision. 13 Fla. L. Weekly Supp. at 959a. Here, no such problem

exists because the Director and the Commission’s findings were supported by

competent substantial evidence in the record which this Court can review in the

instant appeal. For instance, Chairman Sarnoff’s comments during the

Commission’s deliberations indicate that he believed the Director’s decision

complied with the pertinent aspects of the Code:

[H]aving had the ability to go through this hearing and seethe presentations, in my mind, it is clear that, based on thecredible evidence presented before the Commission today,that Walmart has demonstrated that it does fit within theopen Class II permit, and we should deny this appeal.

(Ex. 24 at 185:10-17).

There is no indication from the Dougherty decision whether a harmless error

argument was raised. Thus, Dougherty is not controlling.

The circuit court, acting in its appellate capacity, is not authorized to weigh or

reweigh conflicting evidence or substitute its own judgment in place of the City

Commission in these quasi-judicial proceedings. Dusseau v. Metro Dade County

Bd. Of County Comm’rs, 794 So. 2d 1270 (Fla. 2001). Finally, the Director

testified as to how the proposed project complied with the Code. The Director’s


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testimony was entitled to great weight, and, in and of itself, constituted competent

substantial evidence. See, Hillsborough County Bd. of County Commissioners v.

Longo , 505 So. 2d 470 (Fla. 2d DCA 1987).

Furthermore, even if the Director and the Commission failed to make any

required findings, mere technical errors and minor irregularities in procedure are

considered harmless error. Compare Solomon v. Hunt, 243 So. 2d 185 (Fla. 3d

DCA 1971) (court affirmed order despite the inadequacy of the notice of the hearing

as there was no prejudicial error); Cantor v. Drapkin, 251 So. 2d 542 (Fla. 3d DCA

1971) (judge’s inclusion of award interest that the jury failed to do was not a

reversible error when the interest was lawfully due and jury was properly

instructed).

Therefore, failure to make written findings is not fatal when the record

substantiates the Director and the Commission’s decisions. See In re Estate of

Yohn , 238 So. 2d 290, 295 (Fla. 1970) (“It is elementary that the theories or reasons

assigned by the lower court as its basis for the order or judgment appealed from,

although sometimes helpful, are not in any way controlling on appeal and the

Appellate Court will make its own determination as to the correctness of the

decision of the lower court, regardless of the reasons or theories assigned[.]”); Pure

H20 Biotechnologies, Inc. v. Mazziotti, 937 So. 2d 242 (Fla. 4th DCA 2006) (trial

court not required to list the basis of its decision in vacating a judgment in order for


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appellate court to uphold the decision); Gonzalez v. Gonzalez, 834 So. 2d 291 (Fla.

3d DCA 2002) (holding specific findings not necessary where record adequately

supports order); Broadfoot v. Broadfoot , 791 So. 2d 584 (Fla. 3d DCA 2001)

(“Where, as here, the basis for the award is reasonably clear and supported by the

record, we decline to reverse on account of the absence of statutory findings.”);

McCann v. Crumblish-McCann, 21 So. 3d 170 (Fla. 2d DCA 2009) (where record

contains competent substantial evidence, no reversal for absence of statutory

findings in written order).

Based on the totality of the evidence, any failure to make sufficient written

findings was harmless because there is competent substantial evidence to support

the Director and the Commission’s decisions and to facilitate judicial review of this

matter. Therefore, the instant petition must be denied.

C.THE COMMISSION ADHERED TO THE ESSENTIAL

REQUIREMENTS OF THE LAW IN ITS REVIEW OF

THE ISSUES RAISED BELOW AND ITS DECISION

WAS SUPPORTED BY COMPETENT SUBSTANTIAL

EVIDENCE IN THE RECORD.

Contemporaneously with the filing of this brief, the City of Miami filed a

Notice of Adoption adopting co-Respondent Wal-Mart’s argument in response to

Petitioners’ third claim.

V.

CONCLUSION


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Based upon the foregoing, the instant petition must be denied since the

Director considered the advisory recommendations of the UDRB and the NET

Office, the Director and the Commission’s decision contained sufficient written

findings, and the Commission adhered to the essential requirements of the law

Accordingly, the Respondent City of Miami respectfully requests that this

Court deny Petitioners’ Petition for Writ of Certiorari.

Respectfully Submitted,


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VICTORIA MÉNDEZ, City AttorneyJOHN A. GRECODeputy City AttorneyFORREST L. ANDREWS

Assistant City AttorneyAttorneys for CITY OF MIAMI444 S.W. 2nd Avenue, Suite 945Miami, FL 33130-1910Tel.: (305) 416-1800Fax: (305) 416-1801

By: /s/ JOHN A. GRECO Deputy City Attorney Fla. Bar No. 991236 FORREST L. ANDREWS Assistant City Attorney Fla. Bar No. 17782


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Response has been

furnished to the below listed by E-mail this 27

th

day of February, 2014:

Paul C. Savage, Esq.Primary Email: [email protected] for Petitioners

Richard Lydecker, Esq.Primary Email: [email protected] A. Diaz, Esq.Primary Email: [email protected] A. Emanuele, Esq.Primary Email: [email protected] Carlos Wizel, Esq.Primary Email: [email protected] for Respondent Wal-Mart Stores East, LP

By: /s:/ John A. Greco JOHN A. GRECO, Deputy City Attorney

Fla. Bar No. 991236 FORREST L. ANDREWS, Asst, City Attorney Fla. Bar No. 17782

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CASE NO.: 14-004 AP

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief was prepared using Times New

Roman and the size is 14-point font.

By: /s:/ John A. Greco JOHN A. GRECO Deputy City Attorney

Documents

City of Miami's Response