Third District Court of Appeal
State of Florida
Opinion filed November 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1296
Lower Tribunal No. 21-67 AP, Resolution No. Z-34-21
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Save Calusa, Inc., et al.,
Petitioners,
vs.
Miami-Dade County, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court of Miami-Dade County,
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.
MILLER, J.
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.
BACKGROUND
This dispute traces its origins to the 1960s. In 1967, North Kendall
Investment, Ltd. obtained a zoning resolution authorizing the development
1
Save Calusa, Inc. also petitions for relief. Because the public hearing was
not properly noticed and Prieto has standing, we need not address the
secondary issue of whether the circuit court departed from the essential
requirements of law in concluding Save Calusa, Inc. lacked standing.
2
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
3
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.
2
Section 166.041(4), Florida Statutes (2021), provides, in pertinent part: “A
majority of the members of the governing body shall constitute a quorum. An
affirmative vote of a majority of a quorum present is necessary to enact any
ordinance or adopt any resolution.”
4
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.
STANDARD OF REVIEW
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 constitution[al] 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)).
5
LEGAL ANALYSIS
Notice of the Public Hearing
Chapter 166, Florida Statutes (2021)
Section 166.041, Florida Statutes (2021), codifies the procedures for
the adoption of ordinances and resolutions. The statute contains certain
minimum notice requirements and provides:
[A] municipality may specify additional requirements for the
adoption or enactment of ordinances or resolutions or prescribe
procedures in greater detail than contained herein. However, a
municipality shall not have the power or authority to lessen or
reduce the requirements of this section or other requirements as
provided by general law.
§ 166.041(6), Fla. Stat. In this context,
[s]tanding to initiate a challenge to the adoption of an ordinance
or resolution based on a failure to strictly adhere to the provisions
contained in this section shall be limited to a person who was
entitled to actual or constructive notice at the time the ordinance
or resolution was adopted.
§ 166.041(7), Fla. Stat.
Section 33-310, Code of Miami-Dade County, Florida
Consistent with these provisions, 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. The Code prohibits
action on any application “until a public hearing has been held upon notice
6
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.3 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).4
The plain language of the Code makes clear that published notice is
mandatory and not discretionary. See § 33-310(c)(1)–(3); see also Fla.
Tallow Corp. v. Bryan,
237 So. 2d 308, 309 (Fla. 4th DCA 1970) (“The word
‘shall’ when used in a statute or ordinance has, according to its normal
usage, a mandatory connotation.”); 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
3
Notice must be provided no later than fourteen days prior to the public
hearing.
Id.
4
Conversely, “[t]he failure to provide courtesy notices shall not render a
hearing voidable.”
Id.
7
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) (“The procedural steps required by the state zoning enabling statutes
usually are regarded as mandatory. A failure substantially to comply with
such requirements renders a zoning ordinance invalid.”); 83 Am. Jur. 2d
Zoning and Planning § 470 (same).
Respondents, however, argue that published notice was unnecessary
because the Commission merely postponed the hearing. This argument
misses the mark. The original hearing was not convened and recessed.
Instead, it was canceled the day 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) (holding zoning appeals board
abided by statutory notice provisions where board’s consideration of unusual
or special use application was continuation of previously noticed hearing).
Further, the Code contains no notice exception for canceled and
rescheduled hearings, and no court in this state has determined that such
an exception exists. See Forsythe v. Longboat Key Beach Erosion Control
Dist.,
604 So. 2d 452, 454 (Fla. 1992) (“It is a fundamental principle of
8
statutory construction that where the language of a statute is plain and
unambiguous there is no occasion for judicial interpretation.”). 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
of the state statute is a jurisdictional and mandatory prerequisite to the valid
enactment of a zoning measure.” Webb v. Town Council of Town of Hilliard,
766 So. 2d 1241, 1244 (Fla. 1st DCA 2000) (quoting Lady J. Lingerie, Inc. v.
City of Jacksonville,
973 F. Supp. 1428, 1434 (M.D. Fla. 1997)). This view
has been applied equally to rescheduled or postponed public hearings. See
Coleman v. City of Key West,
807 So. 2d 84, 85–86 (Fla. 3d DCA 2001)
(holding ordinance null and void where rescheduled public hearing on
proposed zoning failed to comply with statutory notice requirements); City of
Fort Pierce v. Davis,
400 So. 2d 1242, 1245 (Fla. 4th DCA 1981) (holding
ordinance void for failure to give notice as required by applicable statute
where public hearing had been rescheduled).
This interpretation is consistent with the purpose underlying the notice
requirements. Zoning action notice provisions are designed to:
[P]rotect interested persons, who are thus given the opportunity
to learn of proposed ordinances; given the time to study the
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proposals for any negative or positive effects they might have if
enacted; and given notice so that they can attend the hearings
and speak out to inform the city commissioners prior to ordinance
enactment.
Coleman,
807 So. 2d at 85. Notice requirements further ensure that
unknown individuals with an interest in zoning matters are constructively
informed of contemplated action and aid the Commission in gathering
sufficient information to sagaciously discharge their duties. Absent strict
compliance, these three objectives fail.
Accordingly, in concluding no published notice of the public hearing
was required, the circuit court strayed from the plain language of the Code
and applicable precedent. Gonzalez v. State,
15 So. 3d 37, 39 (Fla. 2d DCA
2009) (“A departure from the essential requirements of law, alternatively
referred to as a violation of clearly established law, can be shown by a
misapplication of the plain language in a statute.”); Just. Admin. Comm’n v.
Peterson,
989 So. 2d 663, 665 (Fla. 2d DCA 2008) (“When the circuit court
does not apply the plain and unambiguous language of the relevant statute,
it departs from the essential requirements of law.”).
Standing
Standing to Challenge a Zoning Action
We next examine whether Prieto possessed standing to void the
Commission’s action. In the seminal case of Renard v. Dade County, 261
10
So. 2d 832 (Fla. 1972), the Florida Supreme Court articulated the legal
standing necessary to “challenge the zoning action or inaction” of a
municipality. Rinker Materials Corp. v. Metropolitan Dade County,
528 So.
2d 904, 906 (Fla. 3d DCA 1987). There, the court determined that “[a]n
aggrieved or adversely affected person having standing to sue is a person
who has a legally recognizable interest which is or will be affected by the
action of the zoning authority in question.” Renard, 261 So. 2d at 837. In
this regard, the aggrieved party must suffer “special damages,” defined as
“a definite interest exceeding the general interest in community good
share[d] in common with all citizens.” Id. Critically, a court must consider
“the proximity of [the party’s] property to the property to be zoned or rezoned,
the character of the neighborhood, . . . and the type of change proposed.”5
Id.; see also Rinker,
528 So. 2d at 906.
Ordinarily, abutting homeowners have standing by virtue of their
proximity to the proposed area of rezoning. See Paragon Grp, Inc. v.
Hoeksema,
475 So. 2d 244, 246 (Fla. 2d DCA 1985), review denied,
486 So.
2d 597 (Fla. 1986) (holding owner of single-family home directly across from
5
Although the court noted that “notice requirements are not controlling on
the question of who has standing,” it expressly recognized that “[t]he fact that
a person is among those entitled to receive notice under the zoning
ordinance is a factor to be considered on the question of standing to
challenge the proposed zoning action.”
Id.
11
rezoned property had standing to challenge proposed rezoning); see also
Elwyn v. City of Miami,
113 So. 2d 849, 851 (Fla. 3d DCA 1959) (“Plaintiffs
as abutting home owners were entitled to maintain the suit challenging the
propriety, authority for and validity of the ordinance granting the variance.”).
Such proximity generally establishes that the homeowners have an interest
greater than “the general interest in community good share[d] in common
with all citizens.” Renard, 261 So. 2d at 837.
Standing to Void an Improperly Noticed Public Hearing
Those seeking to void an improperly noticed public hearing on a land
use decision bear a slightly lower burden. Renard provides that where there
is a defect in notice, “[a]ny affected resident, citizen or property owner of the
governmental unit in question has standing to challenge such an ordinance.”
Id. at 838; see also Citizens Growth Mgmt. Coal. of W. Palm Beach, Inc. v.
City of W. Palm Beach, Inc.,
450 So. 2d 204, 206 (Fla. 1984) (quoting
Renard, 261 So. 2d at 834) (“This [c]ourt held that . . . an affected resident,
citizen, or property owner had standing” to challenge an ordinance “enacted
without proper notice required under the enabling statute or authority
creating the zoning power.”).
In the first-tier proceedings, the circuit court acknowledged the location
of Prieto’s home. However, conflating the concerns she raised with those of
12
other objecting residents, the court further determined that her complaints
were limited to traffic congestion and reduced property values, both of which
it deemed insufficient to confer standing. Casting aside the fact that this
court has previously determined that an adverse effect on the value of
property “surely represents a legally recognizable interest,” Rinker,
528 So.
2d at 906, this reasoning fails to account for the principle that “[a]ny affected
resident, citizen or property owner . . . has standing to challenge” a zoning
action effectuated at an improperly noticed public hearing. Renard, 261 So.
2d at 838. The failure to apply these controlling legal standards constituted
“a classic departure from the essential requirements of the law.”6 State v.
Jones,
283 So. 3d 1259, 1266 (Fla. 2d DCA 2019).
CONCLUSION
The decision to grant or withhold relief by way of second-tier certiorari
largely depends on our “assessment of the gravity of the error and the
adequacy of other relief.” Custer,
62 So. 3d at 1092 (quoting Haines City
6
While the first-tier briefs alluded to traffic congestion, the record of the
public hearing contains no such reference. “[T]he well[-]established rule
applicable to . . . certiorari proceeding[s] [is] that the reviewing court’s
consideration shall be confined strictly and solely to the record of
proceedings by the agency or board on which the questioned order is
based.” Dade County v. Marca, S.A.,
326 So. 2d 183, 184 (Fla. 1976). “This
rule controls the determination of the factual basis establishing standing to
initiate a certiorari proceeding in the circuit court.” City of Fort Myers v. Splitt,
988 So. 2d 28, 32–33 (Fla. 2d DCA 2008).
13
Cmty. Dev. v. Heggs,
658 So. 2d 523, 531 n.14 (Fla. 1995)). In the instant
case, if the legal error is left uncorrected, it will remain unknown whether
other objectors were foreclosed from the proceedings or Prieto would have
presented a more developed objection. Allowing the decision to stand
threatens to compromise the due process the regulatory framework strives
to afford. Accordingly, we grant the petition for certiorari and quash the order
under review.
Petition granted; order quashed.
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