Metropolitan Dade County v. P.J. Birds, Inc.
| Decision Date | 12 April 1995 |
| Docket Number | No. 93-1578,93-1578 |
| Citation | 654 So.2d 170 |
| Parties | 20 Fla. L. Weekly D903 METROPOLITAN DADE COUNTY, Petitioner, v. P.J. BIRDS, INC., Respondent. |
| Court | Florida District Court of Appeals |
Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., for petitioner.
Eckert, Seamans, Cherin & Mellott and Eileen Ball Mehta and Stanley B. Price, for respondent.
Before BARKDULL, JORGENSON and COPE, JJ.
Metropolitan Dade County petitions for a writ of certiorari to quash an order of the appellate division of the circuit court. The circuit court overturned the designation of a portion of the Parrot Jungle tourist attraction as a Dade County historic site. We conclude that the circuit court departed from the essential requirements of law and grant certiorari.
Late in 1990, the Dade County Historic Preservation Board ("the Board") decided to consider Parrot Jungle for designation as a historic site. The Board's staff prepared a detailed report recommending a twelve acre portion of the Parrot Jungle property for such designation. After a public hearing, the Board voted in favor of the designation.
The owner, P.J. Birds, Inc., appealed to the Board of County Commissioners, arguing that it had not been given a full and fair opportunity to present its case in opposition to the designation. At the owner's request, the County Commission returned the matter to the Historic Preservation Board for a new hearing.
At the new hearing, the staff report and recommendations were again submitted to the Board. There was extensive testimony from the Board's Executive Director and the public. A number of written submissions were also accepted into the record. Although the owner had requested the second hearing, the owner did not present any evidence and the principals of the owner corporation declined to answer any questions put by the Board. The owner's input was confined solely to having the owner's counsel cross-examine the witnesses who testified, and in making legal argument.
The Historic Preservation Board again voted, without dissent, in favor of the designation as a historic site. The owner again appealed to the County Commission, which conducted a hearing. The County Commission upheld the historic designation.
The owner then sought review in the circuit court. The circuit court panel concluded that the owner's procedural due process rights had been violated because the Historic Preservation Board had applied a standard of "exceptional importance" when such standard was not explicitly defined in the ordinance or by Historic Preservation Board rule. The County has petitioned for certiorari.
Under the Dade County Historic Preservation Ordinance, 1 there are two distinct sets of historic designation criteria. There is a set of general criteria which applies to sites which attained significance fifty or more years ago (the "General Criteria"). The General Criteria are set forth in the Historic Preservation Ordinance as follows:
Sec. 16A-10. Designation process and procedure.
(I) [Criteria.] The Board shall have the authority to designate areas, places, buildings, structures, landscape features, archeological sites and other improvements or physical features, as individual sites, districts or archeological zones that are significant in Dade County's history, architecture, archeology or culture and possess an integrity of location, design, setting, materials, workmanship or association, or:
(a) Are associated with distinctive elements of the cultural, social, political, economic, scientific, religious, prehistoric and architectural history that have contributed to the pattern of history in the community (b) Are associated with the lives of persons significant in our past; or
Dade County, south Florida, the State or the nation; or
(c) Embody the distinctive characteristics of a type, period, style or method of construction or work of a master; or that possess high artistic value; or that represent a distinguishable entity whose components may lack individual distinction; or
(d) Have yielded, or are likely to yield information in history or prehistory; or
(e) Are listed in the National Register of Historic Places.
Ch. 16A, Metropolitan Dade County Code.
There is an additional criterion for sites attaining significance within the past fifty years. Pertinent here is the following:
(II) [Properties not generally considered; exceptions.] ... [P]roperties that have achieved significance within the last fifty (50) years, will not normally be considered for designation. However, such properties will qualify if they are integral parts of districts that do meet the criteria, or if they fall within the following categories:
* * * * * *
(f) A property or district achieving significance within the past fifty (50) years if it is of exceptional importance.
Id. Sec. 16A-10 (II) (emphasis added). A less-than-fifty-year-old property must not only meet the General Criteria, but in addition the site must be of "exceptional importance."
Thus, the ordinance creates what may be described as an "Over-fifty Rule," and an "Under-fifty Rule." These may be summarized as follows:
I. Over-fifty Rule:
Applies to: Site which achieved significance fifty or more years ago.
Criteria: Site must meet General Criteria (Sec. 16A-10(I)).
II. Under-fifty Rule:
Applies to: Site which achieved significance less than fifty years ago.
Criteria: Site must meet General Criteria (Sec. 16A-10(I))
AND
Site must be of exceptional importance.
The fact that there are two different sets of criteria is the point overlooked by the circuit court panel below.
The question considered by the Historic Preservation Board in this case was how to apply the designation standards where the tourist attraction came into existence over fifty years ago, but where additional structures have been added within the past fifty years.
The Historic Preservation Board's Staff Summary 2 states in part:
Parrot Jungle and Gardens which lies a few miles south of Miami is one of Florida's most unique tourist attractions. When it opened on December 20, 1936 it was billed as the "Only One in the World." For fifty-four years visitors have enjoyed the subtropical and tropical landscaping, man-made paths, and limestone structures that make up the jungle where hundreds of exotic birds are allowed to fly free.
The Staff Summary explains that the Parrot Jungle tourist attraction became commercially successful immediately and has operated continuously since its opening. The summary outlines the areas of Parrot Jungle which constituted the original tourist attraction and the structures built prior to World War II. The Staff Summary then goes on to explain that a duck pond and flamingo lake were added in the 1940's, a new entrance in 1954, and an amphitheater in 1974. The original and newer features are all integral to the tourist attraction.
The Staff Report recommended that twelve acres be designated as a historic site, out of Parrot Jungle's total of 31 acres. At the public hearing, the Board's Executive Director, Margot Ammidown, testified that from a historic preservation point of view, the property had attained significance over fifty years ago, and the "Over-fifty" standard applied. The original buildings are over fifty Ms. Ammidown then pointed out that in addition to the over fifty-year-old buildings, the site also includes some buildings and landscape features which were added within the last fifty years. Ms. Ammidown addressed the interpretation of the Historic Preservation Ordinance in such a case:
years old. The Parrot Jungle and Gardens became commercially successful over fifty years ago and have been operating continuously for over half a century. Indeed, Parrot Jungle's own present-day promotional brochure prominently states "Parrot Jungle and Gardens ... Over 50 Years of Beauty and Tradition."
In terms of some specific issues I think might come up, I would like to address one in particular since this is a very complicated site. We are not talking about an individual building. We are talking about a site that contains numerous buildings on a number of acres. I would like to point out that even though buildings were added mostly throughout the 1940's that does not disqualify them from the designation.... You can designate since the Board considers an area in terms of all the contributing factors to the overall historic character of the property. We think certainly that the areas of the Parrot Jungle that were added in the 1940's represent areas that contributed to the overall historic character of the park. Also the alterations that were done--they also were done in a fashion that greatly contributed to the historic aspect of the park.
(Emphasis added).
Simply put, if a property has attained significance dating back over fifty years, it does not lose that significance simply because there has been additional construction or modification within the past fifty years, so long as the additional construction or modification has contributed to the overall historic character. Particularly for a working commercial property, this is a rule of practical necessity.
When the Board began its deliberations, the County Attorney served as the Board's counsel. The County Attorney made very clear that the Board had two alternatives before it--what has been referred to in this opinion as the "Over-fifty rule" and the "Under-fifty rule." The County Attorney stated, (Emphasis added).
The Board decided to make the designation under both alternatives. It enacted a resolution stating, in part, that the property "is over 50 years old and is a property of exceptional...
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