Citizens for Responsible Dev. v. The City of Dania Beach

• Decision Date: 15 February 2023
• Docket Number: 4D21-1306
• Parties: CITIZENS FOR RESPONSIBLE DEVELOPMENT, INC., a Florida not-for-profit corporation, and HERBERT SIMPSON, Appellants, v. THE CITY OF DANIA BEACH, FLORIDA, BROWARD COUNTY, FLORIDA and DANIA ENTERTAINMENT CENTER, LLC, a Delaware limited liability company, Appellees.
• Court: Florida District Court of Appeals

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CITIZENS FOR RESPONSIBLE DEVELOPMENT, INC., a Florida not-for-profit corporation, and HERBERT SIMPSON, Appellants,
v.
THE CITY OF DANIA BEACH, FLORIDA, BROWARD COUNTY, FLORIDA and DANIA ENTERTAINMENT CENTER, LLC, a Delaware limited liability company, Appellees.

No. 4D21-1306

Florida Court of Appeals, Fourth District

February 15, 2023

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Keathan Frink, Judge; L.T. Case No. CACE11-22597.

Michael E. Dutko, Jr. and Janine R. McGuire of Conrad &Scherer LLP, Fort Lauderdale, for appellants.

Andrea G. Amigo, George P. Roberts, Jr., and Lyman H. Reynolds, Jr. of Roberts Reynolds Bedard &Tuzzio, PLCC, West Palm Beach, for appellee, The City of Dania Beach, Florida.

Andrew J. Meyers, Joseph K. Jarone and Scott Andron, Broward County Attorneys, Fort Lauderdale, for appellee, Broward County, Florida.

John M. Mullin and Robert L. Scheppske III of Tripp Scott, P.A., Fort Lauderdale, for appellee, Dania Entertainment Center, LLC.

On Motion for Rehearing

MAY, J.

We grant the appellees' motions for rehearing, withdraw our prior opinion, and substitute the following.

This dispute arose from development agreements between the City of Dania Beach ("City") and the Dania Entertainment Center ("DEC") to expand the Dania Jai Alai pari-mutuel facility.

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In 2006, the City entered into a development agreement with the parimutuel facility owner Aragon Group, Inc. The agreement included the building of a new gaming facility and Jai Alai fronton. In 2007, Broward County ("County") approved the plat for Dania Jai Alai for a 325,000 square foot gaming facility, which included 100,000 square feet of casino, a 1,000-seat fronton, and 187,000 square feet of accessory commercial use. The County also approved two other parcels on the plat for 54 singlefamily detached units and 1.159 acres of active park.

Subsequently, the DEC purchased the property from Aragon. In 2011, the DEC sought to "amend and restate" the existing development agreement between the City and Aragon. The new development agreement incorporated plans from the original agreement and added a marina, commercial retail, a new casino, and two hotel towers. The City's attorney and outside counsel advised the pari-mutuel facility it was exempt from City regulations. In May 2013, the DEC finalized the gaming licenses and permit rights transfers from Aragon.

Mr. Sniezek of the Broward County Planning Council wrote a letter and confirmed the City was not "required to allocate land use intensities under the 'Regional Activity Center' (RAC) land use designation on the Broward County Land Use Plan [] and located in the City" for the amended development. His letter provided:

Based on the information provided by you, it is Planning Council staff's understanding that the proposed hotel and marina uses are located within lands designated as a parimutuel by the State of Florida. Based on that information and in such context of Florida Statute 550.155(2), it would appear that the proposed use would qualify as a "capital improvement proposed by a permitholder licensed under this chapter to a pari-mutuel facility existing on June 23 1981."

In consultation with the Planning Council Attorney and County Attorney's office, Planning Council staff has determined that the uses described in your correspondence are permitted without a need to allocate land use intensities under the permitted uses of the RAC

Please note that this finding is subject to review and agreement by the City of Dania Beach. In addition, the proposed uses must meet any other applicable requirements of Florida Statutes Chapter 550

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(Emphasis added).

The statute referenced in the letter, section 550.155(2), Florida Statutes (2011), provides in pertinent part as follows:

A capital improvement proposed by a permitholder licensed under this chapter to a pari-mutuel facility existing on June 23, 1981, which capital improvement requires, pursuant to any municipal or county ordinance, resolution, or regulation, the qualification or approval of the municipality or county wherein the permitholder conducts its business operations, shall receive approval unless the municipality or county is able to show that the proposed improvement presents a justifiable and immediate hazard to the health and safety of municipal or county residents, provided the permitholder pays to the municipality or county the cost of a building permit and provided the capital improvement meets the following criteria:

(a) The improvement does not qualify as a development of regional impact as defined in s. 380.06; and

(b) The improvement is contiguous to or within the existing pari-mutuel facility site. (Emphasis added).

At the City Commission meeting in August 2011, City staff recommended approving the 2011 amended development agreement with the DEC, and the public had an opportunity to comment. After public comment, the City Commission voted unanimously to approve the 2011 development agreement.

The City and the DEC entered into the development agreement. That agreement stated the City had determined the proposed improvements did not present an immediate hazard to the City's residents' health and safety. The County was not a party to the agreement.

In 2011, Citizens for Responsible Development ("CFRD") and Herbert Simpson ("individual plaintiff", collectively "plaintiffs") sued the City for declaratory and injunctive relief. The complaint alleged CFRD was a nonprofit public interest organization in Broward County. It alleged its membership included Dania Beach residents, who are adversely affected by the development agreement's proposed expansion.

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The complaint further alleged Simpson was a legally blind resident living within one mile of Dania Jai Alai. The complaint sought a declaration that the 2011 development agreement was void because the City failed to comply with the Florida Local Government Development Agreement Act, sections 163.3220-163.3243, Florida Statutes (2011). The complaint sought to compel the City to comply with the Act. The DEC intervened in the proceedings.

In 2011 and 2012, the County approved two plat note amendments to the Dania Jai-Alai Plat. ^[1] The planning council, in consultation with its attorney and the County attorney, determined the pari-mutuel facility uses were exempt from being allocated as part of the RAC, pursuant to section 550.155. The 2012 plat note effectuated changes to comply with the Florida Department of Transportation's conditions of approval of the 2011 plat note amendment.

In 2014, the DEC sought a new development agreement, the "second amended agreement," which added a multi-story parking garage and a banquet hall. A public hearing was held on August 26, 2014, with advance notice published in the newspaper, posted at City Hall, and mailed to over 6,000 surrounding landowners. Members of the public were allowed to speak, including Simpson, who expressed concern about the traffic and being able to cross the street. After notice, a second public hearing was held.

At the third hearing, the CFRD's counsel objected to the meeting as not being noticed as a quasi-judicial hearing. Counsel offered documents and testimony to prove the currently proposed development agreement presented an immediate hazard to the health, safety, or welfare of the City's residents. The commission rejected the evidence. At the meeting's conclusion, the second amended agreement was approved and then executed by the City and the DEC. The County was not a party to the second amended agreement.

After the City's approval, CFRD and Simpson amended their complaint to allege the City ignored three sets of development laws: (1) the Development Agreement Act, sections 163.3220-163.3243, Florida

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Statutes (2011); (2) the Dania Beach Unified Land Development Code; and (3) the Broward County Development and Land Use Codes.

The plaintiffs alleged the development agreements failed to comply with Chapter 163, Florida Statutes (2011), and thereby denied the public the ability to participate. They alleged the City failed to comply with the review requirements of its own code and development review process to determine the expansion's impact on the City and its residents. And finally, they alleged the City improperly gave "carte blanche" to the DEC based on section 550.155(2), Florida Statutes (2011).

The plaintiffs sought a declaration that section 550.155 did not apply to the Dania Jai Alai expansion, and the 2011 amended agreement was void as a result. Similarly, they sought a declaration that the 2014 development agreement was void. They also sought a declaration that section 550.155 was void as an unconstitutional special law.

The plaintiffs sought injunctive relief in two other counts, pursuant to section 163.3243. They requested the court declare the 2011 and 2014 approvals of the development agreements void because the City failed to comply with the public notice and hearing requirements of section 163.3225. They sought to compel the City to comply with section 163.3225.

The plaintiffs added the County as a defendant. They alleged the County "dropped the ball too" because it misinterpreted that section 550.155 exempted existing pari-mutuels from County land use regulations and review processes. The plaintiffs alleged the County did not investigate whether the Dania Jai Alai facility complied with section 550.155.

The plaintiffs also sought a declaration that the County erroneously relied on section 550.155 because that section did not apply. Alternatively, the County failed to apply its land use code or engage in developmental review in connection to the 2011 and 2014 development agreements.

All defendants answered, asserting multiple defenses, including...