Save Calusa, Inc. v. Miami-Dade Cnty.
| Decision Date | 01 February 2023 |
| Docket Number | 3D22-1296 |
| Parties | Save Calusa, Inc., et al., Petitioners, v. Miami-Dade County, et al., Respondents. |
| Court | Florida District Court of Appeals |
A Writ of Certiorari to the Circuit Court of Miami-Dade County Lower Tribunal No. 21-67 AP, Resolution No. Z-34-21, 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.
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 requirements of law by failing to apply the correct regulatory framework and established law, we grant the petition.
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 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 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.
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 issue of law, but also from 'an interpretation or application of a statute, a procedural rule, or a constitutional] 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)).
Notice of the Public Hearing
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 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) (); City of Hollywood v. Pettersen, 178 So.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) ( ); 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) ().
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,...
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