Herbits v. City of Miami , 207 So. 3d 274 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed October 26, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-1039
Lower Tribunal No. 14-24334
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Stephen Herbits, et al.,
Appellants,
vs.
The City of Miami, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Monica Gordo,
Judge.
Dubbin & Kravetz and Samuel J. Dubbin, P.A.; Carlton Fields Jorden Burt
and Richard J. Ovelmen and Enrique D. Arana and Justin S. Wales and Namrata S.
Joshi, for appellants.
Greenberg Traurig and Elliot H. Scherker, Alan T. Dimond, Brigid F. Cech
Samole and Jay A. Yagoda; Victoria Méndez, City Attorney, and John A. Greco,
Deputy City Attorney, and Forrest L. Andrews, Assistant City Attorney, for
appellees.
Before ROTHENBERG, SALTER and SCALES, JJ.
SALTER, J.
The seven appellants, plaintiffs in the circuit court (collectively
“Appellants”), are five individuals residing in the City of Miami and two residing
in the City of Miami Beach. The appellees, defendants below, are the City of
Miami (“City”) and Flagstone Island Gardens, LLC (“Flagstone”), a private
development entity. The Appellants appeal the dismissal with prejudice of their
third amended verified complaint1 seeking declaratory and injunctive relief
regarding Flagstone’s plans to lease and develop public land on Watson Island for
use as a mega-yacht marina, two hotels, over 380,000 square feet of retail and
commercial space, and parking facilities.
The primary issue presented below and here is whether the Appellants have
alleged a legally sufficient basis for standing to assert five claims against the City
and Flagstone under provisions within the City of Miami Charter, the Miami-Dade
County Citizens’ Bill of Rights, and the agreements between the City and
Flagstone as enacted in City resolutions. For the reasons which follow, we affirm
the trial court’s dismissal of the complaint with prejudice.
I. Facts and Procedural Background
1 We refer to the third amended verified complaint for declaratory and injunctive
relief as the “complaint.”
2
In light of the standard of review applicable to an order dismissing a
complaint with prejudice, we recount the facts as detailed in the Appellants’ 55-
page complaint and its 35 attached exhibits.2
A. The Project
The Flagstone project, as initially presented via referendum in November
2001, shape-shifted into something quite different by the time of the incarnation
described in the complaint filed in December 2014. In late 2000, the City
Commission enacted resolution 00-1081, authorizing an RFP for a mixed use
development on City-owned property3 along the MacArthur Causeway on Watson
Island. The resolution required that the RFP comply with City Charter section 29-
B by providing the City with “at least fair market value” for the long-term lease
payments. Flagstone’s winning response to the RFP specified that the “Island
Gardens” project would combine “hotels, retail, dining, entertainment, gardens and
2 The 35 exhibits attached to the complaint comprise nearly 500 pages of
documents pertaining to the Flagstone project and its evolution, including City
ordinances and Commission resolutions, the City’s request for proposals (“RFP”)
and Flagstone’s response, the ballot question presented to the voters in 2001, drafts
and signed versions of an “agreement to enter into ground lease” between the City
and Flagstone, a traffic study, an appraisal, and communications regarding the
submerged lands/marina element of the project with State agencies. These
documents are considered a part of the complaint “for all purposes.” Fla. R. Civ.
P. 1.130(b).
3 The City-owned property was approximately 11 acres of waterfront land, but the
development also was to include about 13 acres of submerged lands for the marina
component. The property is subject to a deed restriction in favor of the State
dating back to the State’s conveyance of Watson Island to the City.
3
a selection of cultural facilities and civic art as an intimate village adjacent to one
of the finest purpose-built mega-yacht marinas in the world.” Flagstone
represented that the project would involve a total project cost of $281 million (of
which Flagstone itself would contribute and raise $112 million).
In September 2001, the City Commission enacted resolution 01-971
designating Flagstone as the successful respondent to the RFP and authorizing a
long-term lease of the property for 45 years (with two 15-year renewal options)
and annual rent of “$2,000,000 as the minimum annual guaranteed base rent,” with
annual increases based on the Consumer Price Index and a percentage of gross
receipts. As required by section 29-C of the City Charter, City voters were
presented with a ballot question regarding the proposed lease of public lands in a
special election conducted November 6, 2001:
Shall the City lease City-owned land consisting of 24.2 total upland
and submerged acres on Watson Island to Flagstone Properties, LLC,
for development of a mega yacht marina, fish market, hotels with
timeshare units, a maritime museum, public gardens, cultural
facilities, restaurants, retail and support facilities, for 45 years with
two 15-year renewals, subject to capital investment, subject to a
minimum guaranteed rent of $2,000,000 and other conditions the City
may require?
Although the voters approved the ballot question, the City did not specify a
time for commencement of the lease or the “guaranteed rent of $2,000,000.” In
January 2003, the City and Flagstone signed an agreement to enter into a ground
lease. This agreement was subject to numerous conditions and approvals, as were
4
the three amendments to it. In 2010, nine years after the referendum, the City and
Flagstone executed an “amended and restated agreement to enter into ground
lease,” also subject to numerous conditions precedent and further documentation.
Through the filing of the complaint in 2014, Flagstone and the City had not
actually entered into a ground lease, nor had Flagstone taken possession of any part
of the property or begun to pay rent.
Although an appraisal obtained by the City in 2013 set the fair market value
of an annual lease payment for the property at over $7 million, the City
renegotiated, reduced, and deferred annual lease payments from a “minimum
annual guaranteed base rent” of $2 million to annual amounts that were to increase
incrementally from $300,000 for the year beginning October 1, 2010, to $1
million, by October 1, 2013 (“construction rent”), to $2 million beginning October
1, 2018, and thereafter. As noted, however, these terms were provisional and were
not embodied in binding, written ground leases with terms that had actually
commenced.
The development and investment partners involved in the Flagstone project
also changed frequently from the list provided in Flagstone’s RFP response to
those participating by 2014. The financial crisis of 2008 was allegedly a factor,
but the changes in co-developers and site plans culminated in extensive
renegotiation of the Flagstone-City agreement to enter into a ground lease.
5
In late 2009, the City Attorney approved a form of resolution authorizing
termination of the agreement to enter into ground lease based on non-payment of
rent and Flagstone’s failure to discharge or bond various liens on the property.
During the period 2010 through 2012, City staff and the Commission continued to
discuss whether the agreements should be terminated and a new RFP and
referendum process initiated.
In July 2012, an Assistant City Attorney opined that changes to the terms of
the City-Flagstone agreement would violate the 2001 referendum, and a private
attorney working for Flagstone opined that an annual compensation to the City of
less than $2 million would require a new referendum and a new RFP. The
complaint also alleges that critical information on the modifications, deadlines,
appraised value, and changes in the City itself—particularly traffic—between 2001
and 2014 were concealed from the public.
There is no doubt that mixed use development projects of the intended size
and scale of the Flagstone project are complex in many respects, including zoning
and permitting, financing, and construction. But the verified allegations in the
complaint and the exhibits describe a moving target that tied up a prime piece of
public waterfront for 14 years without moving from paper plans to the high-rise
buildings, cultural facilities and marina for mega-yachts described in Flagstone’s
winning RFP submission and the City referendum. Collectively, the “Agreement
6
to Enter Ground Lease” of late 2002, the amendments in 2004, 2006, and 2008,
and the “Amended and Restated Agreement to Enter into Ground Lease” of 2010,4
seem to comprise in substance an option to develop the property rather than a
ground lease providing a “guaranteed” annual financial return to the City.
B. The Lawsuits5
Appellant Stephen Herbits, joined by Robert Zimmerman (not a party to the
2014 lawsuit at issue here) initially challenged a City zoning resolution pertaining
to the Flagstone project in 2004. Their petition for certiorari to quash City
resolution R-04-0462 (adopting a major use special permit and various special
permits to allow construction of improvements) was denied by the appellate
division of the Miami-Dade Circuit Court in early 2005. Herbits v. City of Miami,
12 Fla. L. Weekly Supp. 432a (Fla. 11th Cir. Ct. App. Div. Mar. 1, 2005).
In 2013 and 2014, Mr. Herbits filed public records lawsuits against the City
in order to obtain documents pursuant to Chapter 119, Florida Statutes (2013).
4 Exhibit 34 to the complaint, extending the deadline for visible commencement of
construction to June 2, 2014.
5 It bears mentioning that two of the plaintiffs/Appellants, Dr. Glatstein and Ms.
Turkel, prevailed in this Court over 35 years ago when they successfully
challenged the City’s authority to enter into an agreement for “the proposed
development of Watson Island as a theme amusement park.” Glatstein v. City of
Miami, 399 So. 2d 1005, 1006 (Fla. 3d DCA 1981). The sense of history repeating
itself is invoked by the phrase within that opinion, “In early 1977, after previous
attempts to develop Watson Island were unsuccessful . . . .” Id. at 1007.
7
After the 2013 lawsuit was filed, the City produced the appraisal showing that the
fair market rental value for the property to be leased had increased to over $7
million.
Mr. Herbits and 1000 Venetian Way Condominium, Inc. (not a party here),
also petitioned for administrative review of the decision by the Board of Trustees
of the Internal Improvement Trust Fund to approve the City’s request for
modifications to the deed restrictions on the submerged lands that were slated to
become the site of the marina within the Flagstone project. When the Board of
Trustees dismissed their request with prejudice, Mr. Herbits and 1000 Venetian
Way appealed to the District Court of Appeal, First District, in Tallahassee. In a
split decision, that Court affirmed the dismissal, concluding that the petitioners
failed to establish that the parties’ substantial interests would be affected. Herbits
v. Bd. of Trs. of Internal Improvement Tr. Fund, 195 So. 3d 1149 (Fla. 1st DCA
2016).
In September 2014, Mr. Herbits commenced the present lawsuit. Additional
plaintiffs/Appellants were joined, and Flagstone was allowed to intervene as a
defendant. The third amended complaint at issue here was filed in December
2014.
C. Verified Allegations Regarding “Special Injury”
8
The City and Flagstone persuaded the trial court to dismiss earlier versions
of the complaint for lack of standing and a failure to allege “special injury.” In
section III of this opinion we assess whether such allegations are in fact required as
to count IV, but the Appellants did amend to add allegations of special injury
applicable to all five counts:
Plaintiffs Herbits, Craver, Shapiro, and Wynne reside on the Venetian
Causeway, directly across a narrow body of water from Watson Island
and the project which is the subject of this lawsuit. They, along with
their neighbors at 1000 Venetian Way and 801 North Venetian Drive,
live closer to the Flagstone project than any other City of Miami or
Miami Beach residents, and will be directly harmed by the increased
traffic, impairments to public safety, short and long-term negative
environmental impacts, subsidies to the developer, loss of public open
space, lost or reduced property values, and other impacts which the
Flagstone Project will cause.
*****
Given Plaintiffs’ proximity and direct use on or near Watson Island.
They will be forced to bear a disproportionate price for the City of
Miami’s illegal actions, and suffer substantial and immediate injuries,
greater in kind than the injuries that will be suffered by the public in
general from the Project.
Compl. ¶8.
[Plaintiffs Pepper and Turkel, residing on Island Avenue, Miami
Beach] will be substantially and adversely affected by the increased
traffic, short and long-term negative environmental impacts, and other
negative impacts which the project will cause.
*****
Given Ms. Turkel’s and Mr. Pepper’s proximity and direct use on or
near Watson Island, they will be required to bear a disproportionate
price for the City of Miami’s illegal actions, and will suffer substantial
and immediate injuries beyond those suffered by the public in general
from the project.
9
Compl. ¶9.
[Plaintiff Dr. Philip Glatstein] will be substantially and adversely
affected by the increased traffic, short and long-term negative
environmental impacts, subsidies to the developer, loss of public open
space, and other impacts which the project will cause.
*****
Therefore, Dr. Glatstein will suffer substantial and immediate injuries
beyond those suffered by the public in general from the project.
Compl. ¶11.
As alleged above, Plaintiffs will suffer special injuries from the
Project that are different in kind than the community at large because
they will be harmed by the increased traffic, diminished public safety,
lost or reduced property values, increased environmental risks, loss of
public open space, subsidies to the developer, and other harms the
City has disregarded, and even concealed and misrepresented, and
which are inextricably related to the City’s actions to extend and
reauthorize the Flagstone project in 2010, 2011, 2012, 2013, and
2014, extensions and reauthorizations which are inextricably
connected to the City’s concessions that violate City of Miami Charter
Sections 29-A, 29-B, and 29-C.
Compl. ¶59.
Plaintiffs, as citizens, taxpayers, and electors in the City of Miami,
who will be adversely affected by the development and who will
suffer injuries different in kind than other members of the community,
are in genuine doubt about their rights as to the legality of the
currently approved Flagstone Project.
Compl. ¶60.
The allegations of fact in the complaint were sworn to be true and correct by
the Appellants under penalty of perjury.
10
D. Dismissal with Prejudice
The City and Flagstone moved to dismiss the present complaint, and those
motions were heard by the trial court in March 2015. The court granted the
motions to dismiss with prejudice, determining that the alleged violations of the
City Charter (Counts I, II, and III) could not be prosecuted without sufficiently
pleading “special injuries” rather than alleged injuries relating to the Flagstone
project’s “general impact from a land use perspective.” As to the County Charter
and Citizens’ Bill of Rights (Count IV), the trial court held that the Charter
provisions in effect incorporated the standing requirements imposed by general
law, including the same “special injuries” pleading requirements.
The trial court also found that Count IV, “based on allegations that certain
City officials and employees failed to provide the public with full and accurate
information in a timely fashion, is preempted by the Florida Public Records Act.
See Tribune Co. v. Cannella, 458 So. 2d 1075, 1077 (Fla. 1984).” The trial court
found Count V legally insufficient as the Appellants were neither parties to, nor
third-party beneficiaries of, the City-Flagstone agreements, so that they “have no
right to challenge the Agreements, or to seek a declaration from the Court that the
Agreements should be terminated.” Finally, the court concluded that further
amendment to cure these deficiencies would be impossible, and thus that the
complaint should be dismissed with prejudice.
11
This appeal ensued.
II. Standard of Review
“Determining whether a party has standing is a pure question of law to be
reviewed de novo.” Alachua Cty. v. Scharps, 855 So. 2d 195, 198 (Fla. 1st DCA
2003.) In reviewing an order dismissing a complaint with prejudice, “[w]e assume
that all allegations in the complaint are true, and we construe all reasonable
inferences from those allegations in favor of [the plaintiff].” Greene v. Times
Publ’g Co., 130 So. 3d 724, 728 (Fla. 3d DCA 2014) (citing United Auto. Ins. Co.
v. Law Offices of Michael Libman, 46 So. 3d 1101, 1103-04 (Fla. 3d DCA 2010)).
“The trial court is bound by the four corners of the complaint and
attachments, and all ambiguities and inferences drawn from ‘the recitals in the
complaint, together with the exhibits attached,’ must be construed in the light most
favorable to the plaintiff.” Lonestar Alt. Sol., Inc. v. Leview-Boymelgreen Soleil
Developers, LLC, 10 So. 3d 1169, 1172 (Fla. 3d DCA 2009) (quoting Vinneau v.
Metro. Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989)).
III. Analysis
“[T]he Florida Supreme Court has repeatedly held that citizens and
taxpayers lack standing to challenge a governmental action unless they
demonstrate either a special injury, different from the injuries to other citizens and
taxpayers, or unless the claim is based on the violation of a provision of the
12
Constitution that governs the taxing and spending powers.” Solares v. City of
Miami, 166 So. 3d 887, 888 (Fla. 3d DCA 2015) (citing Sch. Bd. of Volusia Cty.
v. Clayton, 691 So. 2d 1066, 1068 (Fla. 1997); N. Broward Hosp. Dist. v. Fornes,
476 So. 2d 154, 155 (Fla. 1985); Henry L. Doherty & Co. v. Joachim, 200 So. 238,
240 (Fla. 1941); Rickman v. Whitehurst, 74 So. 205, 207 (Fla. 1917)).
There is a further exception, however, when legislation provides a cause of
action and standing to private citizens. Fla. Wildlife Fed’n v. State Dep’t of Envtl.
Regulation, 390 So. 2d 64 (Fla. 1980). As we explain below in section III.D. of
this opinion (addressing Count IV of the complaint), that exception applies to the
unique rights conferred through the Miami-Dade County Home Rule Charter and
its Citizens’ Bill of Rights. As a duly enacted source of rights and standing, the
Citizens’ Bill of Rights was neither raised nor considered in the taxpayer standing
decisions of the Florida Supreme Court cited above, or in our decisions in Solares
and Kneapler v. City of Miami, 173 So. 3d 1002 (Fla. 3d DCA 2015). The fact
that standing was conferred by the Citizens’ Bill of Rights does not, however, end
our analysis of Count IV, a claim found legally insufficient for other reasons.
A. Count I: City of Miami Charter Section 29-B
In Count I, the Appellants allege that the City violated section 29-B of the
City Charter by failing to lease the property to Flagstone with “a return to the city
of fair market value.” The Appellants thus seek a declaratory judgment
13
invalidating City resolution R-10-0402, a “complete renegotiation of the financial
terms of the previously approved Fourth Amendment and Restated Agreement to
Enter Ground Lease,” at an annual rental far below the property’s fair market value
at the time of the resolution (September 2010), and invalidating further City action
regarding the lease for the same reason. It has not been alleged, however, that the
City and Flagstone are bound by a fully-executed and enforceable lease as opposed
to an “agreement to agree” subject to a number of open conditions precedent.
This claim is also raised in Count IV of the complaint as a violation of the
Miami-Dade County Citizens’ Bill of Rights, but we do not consider that basis for
standing in this section. Rather, the standing issue as to Count I addressed by the
trial court and reviewed here is whether the Appellants have suffered or will suffer
“special injury” by virtue of the alleged violations of City Charter section 29-B.
Reviewing the verified allegations (excerpted in section I.C. above) of
special injury, we agree with and affirm the trial court’s determination that the
Appellants have alleged in conclusory fashion what are in essence zoning and land
use objections. The Appellants may be closer in proximity to the alleged adverse
traffic conditions caused by a completed Island Gardens project, for example, but
the City’s alleged failure to obtain a fair market rental for the property has not been
shown to affect the seven Appellants in a manner “different in kind,”6 not merely
greater in degree, than it affects other residents throughout the City.
14
The zoning, land use, and permitting objections of the Appellants were
addressed in Mr. Herbits’ prior, unsuccessful litigation addressed in section I.B of
this opinion.7 The lack of a different kind of injury as between the Appellants and
other citizens applies as well to the other alleged categories of injury described in
the complaint, such as “diminished public safety, lost or reduced property values,
increased environmental risks, loss of public open space, subsidies to the
developer, and other harms the City has disregarded.” Assuming all such
allegations to be true, the Appellants’ proximity-to-the-property claims also fail to
satisfy what may be called a nexus requirement as part of the “special injury” rule
enunciated in Rickman, Henry L. Doherty & Co., Fornes, and Solares. “The
taxpayer’s injury specially induced by the unlawful act is the basis of his equity,
and unless it is alleged and proved, there can be no equitable relief.” Rickman, 74
So. at 206 (emphasis provided). In the present case, the special injuries caused by
the City’s alleged violation of City Charter section 29-B do not have a nexus—a
causal relationship— to the violation. The alleged violation, a failure to obtain fair
market value for the property to be leased to Flagstone, might cause an adverse
fiscal impact to all taxpayers, but it cannot be said to “cause” the alleged adverse
6 Henry L. Doherty & Co., 200 So. at 240.
7 The Appellants’ standing to challenge the City’s land use and zoning decisions
relating to the project are governed by the Growth Management Act of 1985 and a
separate statute, section 163.3215, Florida Statutes (2014); see Pinecrest Lakes,
Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001).
15
traffic, environmental, and esthetic injuries claimed by the appellants. The alleged
special injuries are claimed to be caused by the development of the proposed
project, not the fact that the City may negotiate a rental amount below fair market
value.
Considering the violation of City Charter section 29-B in isolation, then, as
alleged in Count I—and without considering the more developed articulation of the
claim based on the Citizens’ Bill of Rights—we affirm the dismissal of Count I
with prejudice.
B. Count II: City of Miami Charter Section 29-C
In Count II, the Appellants allege that the City deviated in 2010 (and
thereafter) from the transaction advertised in the RFP and approved in the
November 2001 referendum, in violation of City Charter section 29-C. The
allegations do not establish, however, that any final, unconditional, and binding
terms have been entered into by the City and Flagstone. The amended and restated
agreement to enter into a ground lease is essentially a letter of intent subject to
various open (as-yet unfulfilled) conditions.
Turning to the question of standing, “special injury,” and nexus, it is
apparent that the alleged Charter violations in this Count affect all voters,
taxpayers, and citizens of the City in substantially the same way. As in the case of
Count I, the injuries alleged by the Appellants are in substance zoning, land use,
16
and permitting objections to the project, rather than injuries resulting directly from
the alteration and protraction of the business terms of the lease. The Appellants
would suffer the alleged injuries as a result of the development itself, not as a
result of the fact that the City has allowed or may allow Flagstone to develop a
project materially different than the project specified in the RFP, Flagstone’s
proposal, and the referendum.
Although the violations of section 29-C must be separately analyzed for
legal sufficiency based on the Citizens’ Bill of Rights (Count IV), as a separate and
independent claim we are constrained to affirm the dismissal of Count II with
prejudice for failure to establish special injury, nexus, and standing.
C. Count III: City of Miami Charter Section 29-A
Count III alleges violations of City Charter section 29-A, prohibiting a lease
of City property without public notice and an opportunity for the public to compete
for the transaction. The Appellants allege that the transaction as it was recast in
2010 through 2014 is so different in material terms that the City violated section
29-A by failing to promulgate an updated RFP for new competition and
submissions.
Without considering the additional analysis implicated by the Citizens’ Bill
of Rights, Count III also lacks allegations of resulting injury that are unique or
distinct as to the Appellants. As with Counts I and II, the alleged special injuries
17
do not have a nexus to the alleged Charter violation. There is no allegation, for
example, that the Appellants would respond to a new RFP if publicized and issued.
Although we find that the allegations establish a prima facie case for violation of
section 29-A by the City and Flagstone, and although we analyze the issue
separately as an element of Count IV, we affirm the dismissal of Count III with
prejudice based on a lack of special injury, nexus, and standing when the violation
of section 29-A is asserted as a separate and independent claim. We are also
unable to determine that the City and Flagstone are bound to a definitive lease (or
leases) as opposed to an agreement that remains subject to as-yet-unfulfilled
conditions.
In affirming the dismissal of Counts I, II, and III—each of which alleges
violations by the City of specific requirements of its own Charter—we are
rejecting the Appellants’ arguments for standing based on cases such as Kelner v.
City of Miami Beach, 252 So. 2d 870 (Fla. 3d DCA 1971), and Renard v. Dade
County., 249 So. 2d 500 (Fla. 3d DCA 1971). In Kelner, this Court held that the
special damages requirement “has no application where a person affected seeks to
challenge such action of the city on the ground that the action was illegal, or that
the proceedings before the city council which resulted in such action were
conducted contrary to the provisions of the charter, such as by failure of the city to
18
give notice required by its charter, as alleged here.” Kelner, 252 So. 2d at 871
(emphasis added).
In Renard, we held that special damage is necessary when a plaintiff seeks
to enforce an existing zoning ordinance, but not necessary “when a plaintiff seeks
to have an act of a zoning authority declared void or is within the immediate area
to be affected.” Renard, 249 So. 2d at 502. We conclude that these holdings in
Kelner and Renard have been impliedly overruled by the Supreme Court of
Florida’s later cases regarding standing, as articulated in this Court’s recent
opinion in Solares, 166 So. 3d at 888.
Finally, we consider the “maxim that for every wrong there is a remedy.”
Dominguez v. Bucyrus-Erie Co., 503 So. 2d 364, 365 (Fla. 3d DCA 1987) (citation
omitted) addressing Art. I, § 21, Fla. Const. providing that “[t]he courts shall be
open to every person for redress of any injury”). The standing requirement in
Rickman is based on a policy that the taxpayer’s remedy for wrongs of the kind
detailed in Counts I, II, and III of the complaint “should be at the polls and not in
the courts.” Paul v. Blake, 376 So. 2d 256, 259 (Fla. 3d DCA 1979).
D. Count IV: Miami-Dade Citizens’ Bill of Rights
We affirm the trial court’s dismissal with prejudice of Count IV, but for
reasons other than lack of standing. We conclude that the Miami-Dade Citizens’
19
Bill of Rights provides remedies for truth in government violations, but not for the
possible and prospective ordinance violations alleged in the complaint.
As already noted, the Miami-Dade County Home Rule Charter provides a
special set of rights to Miami-Dade County citizens. Under Article VIII, section
11, of the Florida Constitution of 1885, the electors of the County were granted the
power to “adopt, revise, and amend from time to time a home rule charter of
government” for the County. These rights were preserved and kept in full force
and effect in Article VIII, section 6, of the Florida Constitution of 1968.
The County’s Home Rule Charter is to be “liberally construed” to carry out
the purpose of providing home rule for the people of Miami-Dade County in local
affairs. The Citizens’ Bill of Rights is a part of that Charter, and its promise “to
protect the governed, not the governing,” applies with equal force to municipalities
within the boundaries of the County.
In Krantzler v. Board of County Commissioners of Dade County, 354 So. 2d
126 (Fla. 3d DCA 1978), this Court recounted the provisions of the Citizens’ Bill
of Rights relating to truth in government, remedies for violations, and construction.
The plaintiffs/appellants in that case alleged that the County Commission had
illegally expended County funds for the publication and distribution of a
“propagandist and misleading” brochure in support of a sales tax increase to fund a
mass transit proposal. Id. at 129. This Court reversed an order of dismissal with
20
prejudice to allow the plaintiffs to sharpen the allegations supporting their claim
for equitable relief.
In doing so, the Court considered the taxpayer standing rule as enunciated in
Rickman, and other authorities. The Appellants in the present case thus argue that
Krantzler supports their own present claim that an untruthful communication by a
municipal official presents a legally sufficient claim for violation of the Citizens’
Bill of Rights. The complaint by the Appellants alleges violations of these
excerpted provisions of the Citizens’ Bill of Rights:
(A).2. Truth in Government. No County or municipal official or
employee shall knowingly furnish false information on any public
matter, nor knowingly omit significant facts when giving requested
information to members of the public.
3. Public Records. All audits, reports, minutes, documents and other
public records of the County and the municipalities and their boards,
agencies, departments and authorities shall be open for inspection at
reasonable times and places convenient to the public.
*****
(C). Remedies for Violations. A citizen may bring a cause of action
alleging a violation of this Article filed in the Dade County Circuit
Court pursuant to its general equity jurisdiction and if successful, shall
be entitled to recover costs as fixed by the Court.
*****
(D). Construction. All provisions of this Article shall be construed
to be supplementary to and not in conflict with the general laws of
Florida.
The Appellants have alleged that the City violated section 29-B of the City
of Miami Charter and the Citizens’ Bill of Rights by concealing appraisal
information from the public regarding the true rental value of the Flagstone project
21
real estate; that the City violated section 29-C of the City of Miami Charter and the
Citizens’ Bill of Rights by concealing from the public information reflecting the
substantial and material differences between the project as described in the 2001
RFP and referendum and the project as it was renegotiated between 2010 and
2014; and that the City violated section 29-A of the City of Miami Charter and the
Citizens’ Bill of Rights by concealing from the public the fact that those changes in
the project required an updated notice and RFP solicitation process.
The complaint does not establish, however, that any final and legally
binding lease terms for the project site are in place. The fair market rental value of
the property as of the date Flagstone will take possession (if ever) has not been
alleged. The complaint has not alleged that the original RFP process was
subverted or corrupted. The referendum and RFP apparently did not disclose a
deadline for the execution of a binding lease or the latest permissible
commencement of a minimum annual guaranteed rent payment, and it is not
alleged by any other party that submitted a response to the RFP that it was
deceived by the process.
In essence, then, the Appellants already have obtained relief—by
investigating and highlighting the delays and changes in the proposed project.
That process does not, however, mean that a court should enjoin or otherwise
interfere with a process that is inherently legislative. To the contrary, courts
22
traditionally give deference to the legislative process and the differences of opinion
that emerge as a Commission makes its decisions. Silvio Membreno & Fla. Ass’n
of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016); Lamb v.
Dade Cty., 159 So. 2d 477 (Fla. 3d DCA 1964); Senior Citizens Protective League,
Inc. v. McNayr, 132 So. 2d 237 (Fla. 3d DCA 1961).
We affirm the trial court’s alternative basis for dismissing the Appellants’
public records claims in Count IV with prejudice. The trial court concluded that
the Appellants’ claim regarding public records is “preempted by the Florida Public
Records Act,” citing Tribune Co., 458 So. 2d at 1077. Local government records
are included in the definition of “public records” for purposes of the Florida public
records statutes. § 119.011(12), Fla. Stat. (2016). The Florida Legislature has so
pervasively legislated regarding this subject area that a local government is
precluded from legislating in the same area. Sarasota All. For Fair Elections, Inc.
v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
The City and Flagstone have raised two arguments in opposition to the
application of the provisions of the Citizens’ Bill of Rights. First, they argue that
section (C), “Remedies for Violations,” provides a remedy, but does not expressly
confer standing in the manner that the environmental statute, section
403.412(2)(a), Florida Statutes (1977), did in Florida Wildlife Federation, 390 So.
2d at 64. We reject that argument; the environmental statute authorized the
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Department of Legal Affairs, any political subdivision or municipality of the state,
“or a citizen of the state,” to maintain an action for injunctive relief. Id. at 65 n.1.
Similarly, the Citizens’ Bill of Rights remedy provision expressly applies to “a
citizen.”
Second, the City and Flagstone rely on section (D) of the Citizens’ Bill of
Rights, requiring our construction of these rights to be “supplementary to and not
in conflict with the general laws of Florida.” The City and Flagstone argue that the
“general laws of Florida” as used in that provision refer not only to legislative
enactments, but also to the judicial decisions limiting taxpayer and citizen standing
as described above in section III. According to this argument, the “general laws”
would thus include the “special injury or constitutional challenge” requirements
detailed in Solares, and the cases relied upon by that opinion.
This argument fails as well. Section 11(5) of the Florida Constitution of
1885 and section 6(e) of Article VIII of the Florida Constitution of 1968,
establishing the framework for the Home Rule Charter for Miami-Dade County,
refer to “the power of the Legislature to enact general laws which shall relate to
Dade County.” Contextually, section (D) of the Citizens’ Bill of Rights in the
Home Rule Charter does not expand the definition of “general laws” to engraft
judicial limitations on taxpayer standing into the specific remedies provided to
each citizen in section (C).
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The Florida Supreme Court has defined “general law” as one that “operates
universally throughout the state, or uniformly upon subjects as they may exist
throughout the state, or uniformly within permissible classifications by population
of counties or otherwise, or is a law relating to a state function or instrumentality.”
Fla. Dep’t of Bus. & Prof'l Regulation v. Gulfstream Park Racing Ass’n, Inc., 967
So. 2d 802, 807 (Fla. 2007) (quoting State ex rel. Landis v. Harris, 163 So. 237,
240 (Fla. 1934)). The Florida Supreme Court has also “consistently construed the
phrase ‘inconsistent with general law’. . . to mean ‘contradictory in the sense of
legislative provisions which cannot coexist.’” State v. Sarasota Cty., 549 So. 2d
659, 660 (Fla. 1989) (emphasis added) (citing Laborers’ Int’l Union of N. Am.,
Local 478 v. Burroughs, 541 So. 2d 1160 (Fla.1989); State ex. rel. Dade Cty. v.
Brautigam, 224 So. 2d 688, 692 (Fla. 1969)).
For these reasons, we find that the Appellants had legal standing to bring a
claim under the Citizens’ Bill of Rights, but we do not find a legally sufficient
cause of action within Count IV on the record before us.
E. Count V: Termination of City-Flagstone Agreements
Count V asserts a claim by the Appellants for Flagstone’s breach of a
material term of the Amended and Restated Agreement to Enter Into Ground Lease
between Flagstone and the City—the failure to begin “the actual act of physical
construction” by June 2, 2014. The complaint alleges that the City and Flagstone
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tried to gloss over this breach by recharacterizing a diver’s underwater activities
before that date (to map and survey sea grasses and coral for environmental
mitigation) as visible construction activity. The complaint further alleges that
Flagstone had not obtained all required permits in place by June 2, 2014, as
required.
We affirm the trial court’s dismissal of this count with prejudice on the
grounds set forth in the order of dismissal: “Because these Plaintiffs and other
members of the general public are neither parties to these Agreements nor third
party beneficiaries thereunder, they have no right to challenge the Agreements, or
to seek a declaration from the Court that the Agreements should be terminated.
See Security Mut. Cas. Co. v. Pacura, 402 So. 2d 1266, 1267 (Fla. 3d DCA
1981).”
IV. Conclusion
For the reasons detailed in this opinion, we affirm the trial court’s dismissal
of each count of the complaint with prejudice.
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