SAVE CALUSA INC. v. MIAMI-DADE COUNTY

• Court: District Court of Appeal of Florida
• Decided: February 1, 2023
• Docket: 22-1296
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed February 1, 2023.

________________

No. 3D22-1296 Lower Tribunal No. 21-67 AP, Resolution No. Z-34-21 ________________

Save Calusa, Inc., et al., Petitioners,

vs.

Miami-Dade County, et al., Respondents.

A Writ of Certiorari to the Circuit Court of Miami-Dade County, Appellate Division, Daryl E. Trawick, Maria de Jesus Santovenia, and Marlene Fernandez-Karavetsos, Judges.

David J. Winker, P.A., and David J. Winker, for petitioners.

Geraldine Bonzon-Keenan, Miami-Dade County Attorney, Dennis A. Kerbel, Lauren E. Morse, and Cristina Rabionet, Assistant County Attorneys; Bilzin Sumberg Baena Price & Axelrod LLP, Eileen Ball Mehta, Brian S. Adler, and Liana M. Kozlowski, for respondents.

Before HENDON, MILLER, and LOBREE, JJ.

MILLER, J. ON MOTION FOR REHEARING

We deny respondents’ motions for rehearing, but we grant clarification,

withdraw our previous opinion, and substitute the following opinion in its

stead:

Petitioner, Amanda Prieto, seeks second-tier certiorari review of an

appellate decision by the circuit court of the Eleventh Judicial Circuit of

Miami-Dade County denying relief from a zoning resolution.1 In 2020, the

Miami-Dade Board of County Commissioners lifted a recorded restriction

limiting the use of the site of the now-shuttered Calusa Country Golf Club to

a golf course, club house, and certain ancillary uses. The following year, the

Commission adopted the challenged resolution, rezoning the property to

allow for the development of 550 single-family residences on the situs.

Prieto sought first-tier certiorari review seeking to void the resolution on the

basis that the County failed to publish notice of the public hearing. The circuit

court determined Prieto lacked standing and, regardless, notice was

adequate. Concluding the circuit court departed from the essential

1 Save Calusa, Inc. also petitions for relief. Because the public hearing was not properly noticed and Prieto has standing, we need not address the secondary issue of whether the circuit court departed from the essential requirements of law in concluding Save Calusa, Inc. lacked standing.

2 requirements of law by failing to apply the correct regulatory framework and

established law, we grant the petition.

BACKGROUND

This dispute traces its origins to the 1960s. In 1967, North Kendall

Investment, Ltd. obtained a zoning resolution authorizing the development

of the golf course. The resolution contained a ninety-nine-year restrictive

covenant preventing any other use of the property absent the approval of

seventy-five percent of affected property owners and the County

Commission.

Several years later, a successor developer sought to rezone the golf

course to facilitate the construction of additional homes. Community

residents and the County consistently resisted further development efforts,

and protracted litigation ensued. See, e.g., Calusa Golf, Inc. v. Dade County,

426 So. 2d 1165 (Fla. 3d DCA 1983).

After this court reaffirmed the viability of the restrictive covenant, see

Save Calusa Tr. v. St. Andrews Holdings, Ltd., 193 So. 3d 910, 911 (Fla. 3d

DCA 2016), respondent, Kendall Associates I, LLLP, an affiliate of GL

Homes, acquired the property. More than seventy-five percent of affected

property owners subsequently agreed to eliminate the restrictive covenant,

and the Commission released the land from the restriction. Kendall

3 Associates then filed an application to rezone the property to allow for the

development of 550 single-family units on the land.

A public hearing was properly noticed. On the eve of the slated

hearing, however, the Commission expressed concerns regarding the ability

to satisfy a quorum. 2 The hearing was canceled and reset. Notice of the

rescheduled hearing was mailed to residents within one-half mile of the

subject property, posted at the hearing site and property, and electronically

transmitted to self-subscribed users of the electronic notification service.

Twelve days before the public hearing was due to convene, counsel

for petitioners objected and alerted the County to the fact that the notice

reflected the wrong applicant and had yet to be published in a newspaper of

general circulation, as required by section 33-310 of the Miami-Dade County

Code. Despite this objection, the hearing proceeded.

At the hearing, Prieto was allocated one minute to present her

objection. She testified that she resides a few hundred feet from the site of

the now-defunct golf course. Relying upon a staff analysis report, Prieto

argued that the school her children currently attend, Calusa Elementary, is

2 Section 1.08 of the Miami-Dade County Code provides, in pertinent part: “No action of the Commission shall be taken except by a majority vote of those present at a meeting at which a majority of the Commissioners then in office is present.”

4 at capacity. The addition of hundreds of homes would displace students and

necessitate busing to neighboring schools. She further testified she had

submitted extensive documentation as to adverse environmental impacts,

including potential effects on fish and wildlife.

The Commission adopted the resolution, and Prieto sought first-tier

certiorari review. The circuit court denied relief. In doing so, it concluded

Prieto lacked standing because she raised only generalized concerns

regarding increased traffic and diminished property values, and,

alternatively, because the County satisfied the regulatory notice

requirements for the originally scheduled hearing, it was not required to

publish any further notice. The instant petition ensued.

STANDARD OF REVIEW

In a second-tier certiorari proceeding concerning the quasi-judicial

decision of a local governmental entity, “[o]ur ‘inquiry is limited to whether

the circuit court afforded procedural due process and whether the circuit

court applied the correct law, or, as otherwise stated, departed from the

essential requirements of law.’” Fla. Int’l Univ. v. Ramos, 335 So. 3d 1221,

1224 (Fla. 3d DCA 2021) (quotation marks omitted) (quoting Custer Med.

Ctr. v. United Auto Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010)). “Clearly

established law can be derived not only from case law dealing with the same

5 issue of law, but also from ‘an interpretation or application of a statute, a

procedural rule, or a constitution[al] provision.’” State, Dep’t of Highway

Safety & Motor Vehicles v. Edenfield, 58 So. 3d 904, 906 (Fla. 1st DCA 2011)

(quoting Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003)).

LEGAL ANALYSIS Notice of the Public Hearing Section 33-310, Code of Miami-Dade County, Florida

Section 33-310 of the Miami-Dade County Code, entitled, in part,

“Notice and Hearing Prerequisite to Action,” sets forth the notice

requirements applicable to public hearings on zoning applications before the

Board of County Commissioners. 3 The Code prohibits action on any

application “until a public hearing has been held upon notice of the time,

3 Similarly, Section 166.041(6), Florida Statutes (2021), regulating municipalities, provides: [A] municipality may specify additional requirements for the adoption or enactment of ordinances or resolutions or prescribe procedures in greater detail than contained herein. However, a municipality shall not have the power or authority to lessen or reduce the requirements of this section or other requirements as provided by general law. § 166.041(6), Fla. Stat. In this context, [s]tanding to initiate a challenge to the adoption of an ordinance or resolution based on a failure to strictly adhere to the provisions contained in this section shall be limited to a person who was entitled to actual or constructive notice at the time the ordinance or resolution was adopted. § 166.041(7), Fla. Stat.

6 place, and purpose of such hearing.” Miami-Dade County, Fla., Code § 33-

310(c) (2021).

The Code envisions four distinct forms of notice.4 Notice must first be

published in “a newspaper of general circulation in Miami-Dade County.” §

33-310(c)(1). Notice must then be both mailed to homeowners within a

specified radius and posted on the affected property, and a courtesy copy

should then be furnished to the president of certain specified homeowners’

associations. § 33-310(c)(2)–(3), (e). Failure to publish, post, or mail notice

to affected homeowners “renders voidable any hearing held on the

application.” § 33-310(g). In contrast, “[t]he failure to provide courtesy

notices shall not render a hearing voidable.” Id.

The plain language of the Code makes clear that published notice is

mandatory and not discretionary. See § 33-310(c)(1)–(3). Indeed, the Code

expressly states “[t]he word ‘shall’ is always mandatory and not merely

directory.” Miami-Dade County, Fla., Code § 1-2(h) (2021); see also Fla.

Tallow Corp. v. Bryan, 237 So. 2d 308, 309 (Fla. 4th DCA 1970) (“The word

‘shall’ when used in a statute or ordinance has, according to its normal

usage, a mandatory connotation.”); City of Hollywood v. Pettersen, 178 So.

4 Notice must be provided no later than fourteen days prior to the public hearing. § 33-310(c).

7 2d 919, 921 (Fla. 2d DCA 1965) (“In the promulgation of zoning regulations

there must be strict adherence to the requirements of notice and hearing

preliminary to the adoption of such regulations.”). This is consistent with the

overwhelming weight of modern authority in this arena. See Patricia E.

Salkin, Mandatory Requirements, in American Law of Zoning § 8:3 (5th ed.

2022) (“The procedural steps required by the state zoning enabling statutes

usually are regarded as mandatory. A failure substantially to comply with

such requirements renders a zoning ordinance invalid.”); 83 Am. Jur. 2d

Zoning and Planning § 470 (same).

Here, the County was forewarned by Prieto and others that its notice

was defective. The notice reflected the wrong applicant, and the County

failed to publish notice as required. Nonetheless, it proceeded forward with

the hearing.

Respondents argue, however, that published notice was unnecessary

because the Commission merely postponed the original hearing, and Prieto

was able to attend. These arguments miss the mark. The original hearing

was not convened and recessed. Instead, it was canceled before it was

scheduled to occur. Thus, the hearing on the resolution cannot be deemed

a mere continuation of a properly noticed hearing. See Shaughnessy v.

Metropolitan Dade County, 238 So. 2d 466, 468 (Fla. 3d DCA 1970) (holding

8 zoning appeals board abided by statutory notice provisions where board’s

consideration of unusual or special use application was continuation of

previously noticed hearing).

Further, the Code contains no notice exception for canceled and

rescheduled hearings, and this court has not previously determined that such

an exception exists. Instead, in closely considering the analogous question

of whether the failure to provide statutory notice of a rescheduled public

hearing is fatal to the viability of a subsequently enacted zoning ordinance,

this court and others have universally concluded that “[s]trict compliance with

the notice requirements . . . is a jurisdictional and mandatory prerequisite to

the valid enactment of a zoning measure.” Webb v. Town Council of Town

of Hilliard, 766 So. 2d 1241, 1244 (Fla. 1st DCA 2000) (quoting Lady J.

Lingerie, Inc. v. City of Jacksonville, 973 F. Supp. 1428, 1434 (M.D. Fla.

1997)). This view has been applied equally to rescheduled or postponed

public hearings. See Coleman v. City of Key West, 807 So. 2d 84, 85–86

(Fla. 3d DCA 2001) (holding ordinance null and void where rescheduled

public hearing on proposed zoning ordinance failed to comply with statutory

notice requirements); City of Fort Pierce v. Davis, 400 So. 2d 1242, 1245

(Fla. 4th DCA 1981) (holding ordinance void for failure to give notice as

required by applicable statute where public hearing had been rescheduled).

9 This interpretation is consistent with the plain text of the ordinance and

the purpose underlying the notice requirements. Forsythe v. Longboat Key

Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992) (“It is a

fundamental principle of statutory construction that where the language of a

statute is plain and unambiguous there is no occasion for judicial

interpretation.”). The text of the ordinance distinguishes between a failure to

publish notice and a failure to provide courtesy notice. The former renders

the hearing voidable, while the latter imposes no such penalty. Moreover,

zoning action notice provisions are designed to:

[P]rotect interested persons, who are thus given the opportunity to learn of proposed ordinances; given the time to study the proposals for any negative or positive effects they might have if enacted; and given notice so that they can attend the hearings and speak out to inform the city commissioners prior to ordinance enactment.

Coleman, 807 So. 2d at 85. Notice requirements further ensure that

unknown individuals with an interest in zoning matters are constructively

informed of contemplated action and aid the Commission in gathering

sufficient information to sagaciously discharge their duties. Absent strict

compliance, these three objectives fail.

Invoking a series of administrative deference cases, the County further

argues that it is endowed the exclusive authority to determine the parameters

of notice. See, e.g., Atl. Shores Resort, LLC v. 507 S. St. Corp., 937 So. 2d

10 1239, 1245 (Fla. 3d DCA 2006). Casting aside the fact that this line of cases

predates the recently adopted constitutional amendment abolishing

deference to administrative actions, it is axiomatic that the application of all

rules and regulations promulgated by a county are subject to judicial review.

See § 125.018, Fla. Stat. (2022); Art. V, § 21, Fla. Const.; see also Evans

Rowing Club, LLC v. City of Jacksonville, 300 So. 3d 1249, 1251 (Fla. 1st

DCA 2020) (B.L. Thomas, J., concurring specially) (“[T]he constitution itself

provides that all zoning decisions must be compliant with general law.”).

Accordingly, in concluding no published notice of the public hearing

was required, the circuit court strayed from the plain language of the Code

and applicable precedent. Gonzalez v. State, 15 So. 3d 37, 39 (Fla. 2d DCA

2009) (“A departure from the essential requirements of law, alternatively

referred to as a violation of clearly established law, can be shown by a

misapplication of the plain language in a statute.”); Just. Admin. Comm’n v.

Peterson, 989 So. 2d 663, 665 (Fla. 2d DCA 2008) (“When the circuit court

does not apply the plain and unambiguous language of the relevant statute,

it departs from the essential requirements of law.”).

Standing Standing to Challenge a Zoning Action We next examine whether Prieto possessed standing to void the

Commission’s action. In the seminal case of Renard v. Dade County, 261

11 So. 2d 832 (Fla. 1972), the Florida Supreme Court articulated the legal

standing necessary to “challenge the zoning action or inaction” of a

governmental body. Rinker Materials Corp. v. Metropolitan Dade County,

528 So. 2d 904, 906 (Fla. 3d DCA 1987). There, the court determined that

“[a]n aggrieved or adversely affected person having standing to sue is a

person who has a legally recognizable interest which is or will be affected by

the action of the zoning authority in question.” Renard, 261 So. 2d at 837.

In this regard, the aggrieved party must suffer “special damages,” defined as

“a definite interest exceeding the general interest in community good

share[d] in common with all citizens.” Id. Critically, a court must consider

“the proximity of [the party’s] property to the property to be zoned or rezoned,

the character of the neighborhood, . . . and the type of change proposed.”5

Id.; see also Rinker, 528 So. 2d at 906.

Ordinarily, abutting homeowners have standing by virtue of their

proximity to the proposed area of rezoning. See Paragon Grp., Inc. v.

Hoeksema, 475 So. 2d 244, 246 (Fla. 2d DCA 1985), review denied, 486 So.

2d 597 (Fla. 1986) (holding owner of single-family home directly across from

5 Although the court noted that “notice requirements are not controlling on the question of who has standing,” it expressly recognized that “[t]he fact that a person is among those entitled to receive notice under the zoning ordinance is a factor to be considered on the question of standing to challenge the proposed zoning action.” Id.

12 rezoned property had standing to challenge proposed rezoning); see also

Elwyn v. City of Miami, 113 So. 2d 849, 851 (Fla. 3d DCA 1959) (“Plaintiffs

as abutting home owners [sic] were entitled to maintain the suit challenging

the propriety, authority for and validity of the ordinance granting the

variance.”). Such proximity generally establishes that the homeowners have

an interest greater than “the general interest in community good share[d] in

common with all citizens.” Renard, 261 So. 2d at 837.

Standing to Void an Improperly Noticed Public Hearing

Those seeking to void an improperly noticed public hearing on a land

use decision bear a slightly lower burden. Renard provides that where there

is a defect in notice, “[a]ny affected resident, citizen or property owner of the

governmental unit in question has standing to challenge such an ordinance.”

Id. at 838; see also Citizens Growth Mgmt. Coal. of W. Palm Beach, Inc. v.

City of W. Palm Beach, Inc., 450 So. 2d 204, 206 (Fla. 1984) (quoting

Renard, 261 So. 2d at 834) (“This [c]ourt held that . . . an affected resident,

citizen, or property owner had standing” to challenge an ordinance “enacted

without proper notice required under the enabling statute or authority

creating the zoning power.”).

In the first-tier proceedings, the circuit court acknowledged the location

of Prieto’s home. However, conflating the concerns she raised with those of

13 other objecting residents, the court further determined that her complaints

were limited to traffic congestion and reduced property values, both of which

it deemed insufficient to confer standing. Notwithstanding the fact that this

court has previously determined that an adverse effect on the value of

property “surely represents a legally recognizable interest,” Rinker, 528 So.

2d at 906, this reasoning fails to account for the principle that “[a]ny affected

resident, citizen or property owner . . . has standing to challenge” a zoning

action effectuated at an improperly noticed public hearing. Renard, 261 So.

2d at 838. The failure to apply these controlling legal standards constituted

“a classic departure from the essential requirements of the law.”6 State v.

Jones, 283 So. 3d 1259, 1266 (Fla. 2d DCA 2019).

CONCLUSION

The decision to grant or withhold relief by way of second-tier certiorari

largely depends on our “assessment of the gravity of the error and the

adequacy of other relief.” Custer, 62 So. 3d at 1092 (quoting Haines City

6 While the first-tier briefs alluded to traffic congestion, the record of the public hearing contains no such reference. “[T]he well[-]established rule applicable to . . . certiorari proceeding[s] [is] that the reviewing court’s consideration shall be confined strictly and solely to the record of proceedings by the agency or board on which the questioned order is based.” Dade County v. Marca, S.A., 326 So. 2d 183, 184 (Fla. 1976). “This rule controls the determination of the factual basis establishing standing to initiate a certiorari proceeding in the circuit court.” City of Fort Myers v. Splitt, 988 So. 2d 28, 32–33 (Fla. 2d DCA 2008).

14 Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 n.14 (Fla. 1995)). In the instant

case, if the legal error is left uncorrected, it will remain unknown the extent

of the impact resulting from the error in notice, including whether Prieto

would have presented a more developed objection. Allowing the decision to

stand threatens to compromise the due process the regulatory framework

strives to afford. Accordingly, we grant the petition for certiorari and quash

the order under review.

Petition granted; order quashed.