Mdxq v. Miami-Dade County , 271 So. 3d 68 ( 2019 )

Third District Court of Appeal
State of Florida
Opinion filed February 6, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-890
Lower Tribunal No. 17-21598
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MDXQ, LLC,
Appellant,
vs.
Miami-Dade County, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig,
Judge.
Cozen O’Connor, and Charles C. Kline, Jason R. Domark and Reid Kline, for
appellant.
Abigail Price-Williams, Miami-Dade County Attorney, and Christopher J.
Wahl, Dennis A. Kerbel and Debra Herman, Assistant County Attorneys, for
appellees.
Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.
PER CURIAM.
MDXQ, LLC, appeals the trial court’s order granting Miami-Dade County’s
motion to dismiss and dismissing MDXQ’s complaint. In Count One of its
complaint, MDXQ sought a writ of mandamus to compel the County to make a
“Consistency Determination” on whether the County’s proposal to use MDXQ’s
property for a water treatment plant is consistent with the County’s Comprehensive
Development Master Plan.1 MDXQ contended (in the alternative) that, should the
trial court determine Miami-Dade County had already made a consistency
determination, MDXQ was entitled to a de novo review of that determination
pursuant to section 163.3215(3), Florida Statutes (2017).
We affirm the trial court’s dismissal order. Upon our de novo review2 of the
allegations in the complaint and its attachments, as well as the plain language of the
County’s Master Plan and section 163.3215(3), we hold that the trial court properly
determined MDXQ failed to establish it had a clear, legal and present right to receive
1
“A comprehensive plan is a statutorily mandated legislative plan to control and
direct the use and development of property within a county or municipality.” Payne
v. City of Miami, 52 So. 3d 707, 737 (Fla. 3d DCA 2010) (Gersten, J., specially
concurring) (citations and quotations omitted). It acts as “a constitution for all future
development within the governmental boundary.” Id.2
Lopez-Infante v. Union Cent. Life Ins. Co., 809 So. 2d 13, 15 (Fla. 3d DCA 2002)
(“The de novo standard of review is applied when considering an order granting a
motion to dismiss”); Walker v. Ellis, 989 So. 2d 1250, 1251 (Fla. 1st DCA 2008)
(applying a de novo standard of review to the trial court’s order dismissing a petition
for writ of mandamus).
2
(and Miami-Dade County had a clear, legal and present duty to provide) a
consistency determination. See Tucker v. Ruvin, 748 So. 2d 376, 377 (Fla. 3d DCA
2000) (holding: “To be entitled to mandamus relief, the “petitioner must have a clear
legal right, [] respondent must have a clear legal, ministerial duty to perform, and []
petitioner must have no other adequate legal remedy available”); Scott v. State, 130
So. 3d 741, 742 (Fla. 3d DCA 2014) (noting: “Writs of mandamus are extraordinary
remedies that ‘may not be used to establish the existence of an enforceable right, but
rather only to enforce a right already clearly and certainly established in the law.’”)
(quoting Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863
(Fla. 1st DCA 2004)).
The trial court also properly concluded that, in the absence of a development
order, a cause of action under section 163.3215(3)3 was not yet ripe. See, e.g.,
3
Subsection (3) provides:
Any aggrieved or adversely affected party may maintain a de novo
action for declaratory, injunctive, or other relief against any local
government to challenge any decision of such local government
granting or denying an application for, or to prevent such local
government from taking any action on, a development order, as defined
in s. 163.3164, which materially alters the use or density or intensity of
use on a particular piece of property which is not consistent with the
comprehensive plan adopted under this part. The de novo action must
be filed no later than 30 days following rendition of a development
order or other written decision, or when all local administrative appeals,
if any, are exhausted, whichever occurs later.
(Emphasis added.)
3
Tallahassee Mem’l Reg’l Med. Ctr. v. Lewis, 399 So. 2d 106, 108 (Fla. 1st DCA
1981) (holding: “Relief cannot be afforded by mandamus as to issues that are unripe
for determination”).
Affirmed.
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