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Wal-Mart's Response To Petition For Writ of Certiorari (Filed) - 1
Wal-Mart's Response To Petition For Writ of Certiorari (Filed) - 1
Court found that Section 627.2.15 of the Code required an absolute number of
three (3) loading berths, and the Citys long-standing interpretation of this section
as establishing a minimum requirement but allowing it to call for a higher number
of berths for any given project was incorrect. On remand, Wal-Mart conformed its
project to meet this Courts holding on Section 627.2.15s requirement by reducing
the off street loading berths from five (5) to three (3). The City of Miami
Commission (the Commission) on remand from this Court then considered
Petitioners appeal in accordance with this Courts opinion. Based upon its de novo
review of the project and with the recommendation of the Planning Director, the
Commission (on a unanimous vote) issued Resolution number 13-01030iia on
November 20, 2014, affirming the decision of the Planning, Zoning and Appeals
Board (the PZAB) to deny the appeal of the Permit and approving the Permit
with only three (3) loading berths.
Having obtained what they asked for in the first appeal (that the project
contain only three (3) loading berths), this second appeal can only be presumed to
be a tactic to delay the construction allowed by the Permit, based on Petitioners
ideological objections to Wal-Martwhich have no place in consideration of the
issues. The argument advanced by Petitionersthat the Commission had no
jurisdiction to entertain the application on remand because before Pfeffer 1 the
project contained five loading berths, and that the Commission was required to
1. Rather than restating it in this brief, we will simply summarize it, referring the
Court to Pfeffer 1 and Wal-Marts prior brief.2
Over two years ago, on August 21, 2012, Wal-Mart submitted its
application to the Department of Planning and Zoning for a Class II Special Permit
to allow construction of a Wal-Mart store (the Project) in the property located at
3055 North Miami Avenue. See Pfeffer 1, App. A at 2; App. B at 3-5. This location
is zoned for a big box retail facility as Midtown Miami West under the City of
Miami Zoning Code. See id. Almost a year later, on August 12, 2013after
making referrals to the Urban Development Review Board, the Neighborhood
Enhancement Team Office, the Department of Public Works, and the Office of
Transportationthe Planning Director conditionally approved the Permit in his
final decision. Pfeffer 1, App. A at 1-2; App. B at 5-7.
Petitioners then appealed the Directors decision to the PZAB on August 27,
2013. After a public hearing was held before the PZAB on October 2, 2013, the
PZAB denied the appeal of the Class II Special Permit. Pfeffer 1, App. A at 2;
App. B at 7-9. Petitioners then appealed the PZABs decision to the Commission
on October 17, 2013. App. B at 9. After holding a de novo, quasi-judicial public
hearing on November 21, 2013, the Commission unanimously denied the appeal
and approved the Permit. Id. Pfeffer 1, App. A at 3; App. B at 9-14.
On January 2, 2014, Petitioners then filed a Petition for Writ of Certiorari in
this Court, challenging the Resolution of the Commission. After full briefing, oral
argument, and supplemental briefing, this Court rejected six (6) of the seven
arguments Petitioners presented in challenging the Permit.3 The Court, however,
agreed with one (1) of their narrow arguments: that the Commission deviated from
the essential requirements of the law by approving a permit that, pursuant to the
3
Specifically, this Court held in favor of the City and Wal-Mart that:
(1)
the Director was not bound by the UDRB and NET Office
recommendations, and he did consider those recommendations and his final
decision was affected and limited by those reports (Pfeffer 1, App. A at 4-5);
(2)
(3)
since the Commission made its own findings and determination, Petitioners
challenge to the Directors findings was moot (Pfeffer 1, App. A at 5, n.3);
(4)
(5)
(6)
less than three loading berths. And this is, in fact, what
the applicants, the original applicants, have done.
They have presented to us, and you will find in your
packets, documents that show that where there were once
five loading berths, there are now three loading berths.
And, of course, because we have to do our due diligence,
we had to make sure that those three loading berths that
the document show are functional, which is why you will
see in some of the drawings there are maneuvering
diagrams.
So there are three functional loading berths presently in
this particular establishment. By doing so, we believe
that we have complied with the courts order. And we
submit to you then that the revised set of documents, and
the analysis and findings that are attached to those
documents are worthy of your approval and corrective of
the defect found by the courts.
App. D (Tr. of Nov. 20, 2014 Commission Hearing) at 7:128:21. He assured:
The modifications made to the plans render the three
remaining loading berths fully functional. There are
maneuvering studies that prove that.
In addition to that, we find that the three loading berths,
as provided, comply with what we understand this to be
the -- we understand to be the courts mandate, to
interpret the code to mean that, at most, and at least three
loading berths shall be provided. So we are here to verify
that three loading berths, fully compliant with the
appropriate sizes and dimensions provided by the zoning
ordinance, have indeed been provided. Plans attached to
show that is the case.
App. D at 28:117. The Planning Director concluded,
I think it is important, and perhaps appropriate, to
hopefully clarify something that may be confusing. And
it is this.
provide the three (3) loading berths they themselves had previously requested.
Petitioners claimed (similar to their argument in this Court) that, even though the
Project now conformed to the three loading berths requirement in alignment with
Pfeffer 1, because (based on the Citys interpretation of the Code) the original
application provided for five loading berths, the Commission was now required to
force Wal-Mart to either re-submit an application for a Class II Special Permit and
restart the entire process anew or submit an application for a MUSP requesting a
variance for the two additional loading berths that Wal-Mart does not want. The
Commission thoroughly rejected Petitioners position, and, expressly relying on
this Courts opinion in Pfeffer 1, voted unanimously to affirm the decision of the
PZAB to deny the appeal and to approve the Permit with only three berths.
This second Petition was then filed on December 16, 2014.
STANDARD OF REVIEW
The Courts review of local agency action is deliberately circumscribed out
of deference to the [local] agencys technical mastery of its field of expertise,
Broward County v. G.B.V. Intl Ltd., 787 So. 2d 838, 843 (Fla. 2001). In
reviewing the decision of quasi-judicial action of an administrative body, the
circuit court must determine whether the decision is supported by competent
substantial evidence, whether the essential requirements of the law have been
observed, and whether due process has been accorded. Pfeffer 1, App. A at 3-4
(citing City of Deerfield Beach v. Valiant, 419 So. 2d 624, 626 (Fla. 1982); Florida
Power & Light Co. v. City of Dania Beach, 761 So. 2d 1089, 1092 (Fla. 2000); and
Broward Cnty. v. G.B. V. Intl, Ltd, 787 So. 2d 838, 843 (Fla. 2001)). Petitioners
only argument, however, is that the Commission departed from the essential
requirements of the law by considering modifications to the Project that
extinguished the only impediment to issuance of a Class II Special Permit pursuant
to Pfeffer 1.
The required departure from the essential requirements of law means
something far beyond legal error. Jones v. State, 477 So. 2d 566, 569 (Fla. 1985)
(emphasis added). To find that the Commission did not adhere to the essential
requirements of law, the Court must find that there is an inherent illegality or
irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with
disregard of procedural requirements, [which] result[ed] in a gross miscarriage of
justice. Id. (emphasis added); see also Miami-Dade County v. Omnipoint
Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003) (explaining that a ruling constitutes
a departure from the essential requirements of law when it amounts to a violation
of a clearly established principle of law resulting in a miscarriage of justice
(citing Tedder v. Florida Parole Commn, 842 So. 2d 1022, 1024 (Fla. 1st DCA
2003) (quoting Combs v. State, 436 So. 2d 93, 96 (Fla. 1983)); see also Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (same).
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ARGUMENT
The Petitioners argument is based on one fatal flaw: the assumption that an
application for a Class II Special Permit must at its inception be fully compliant
with all requirements of the Code, and once the Director approves the Class II
Special Permit, the application cannot be modified to conform to Code
requirements. Petitioners claim that if any aspect of the application does not
conform to the Code requirements, it constitutes a variance and the application
must be denied, at which time the applicant must be required to either submit an
application for a Major Use Special Permit or re-submit the Class II Special Permit
application anew. This conceptualization of such a patently incompetent process
for approval of a Class II Special Permit is simply wrong. Specifically, the Petition
lacks merit and should be denied because, as more fully explained below, it has
been decisively established by both the law of the case and by precedent of the
Third District Court of Appeal that, in issuing its decision to ultimately approve the
Class II Special Permit, the Commission was well within its authority to conduct a
de novo review and to hear new evidence on remand.
I.
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these issues, dispositive of this petition, were necessarily presented and decided in
Pfeffer 1.4 These rulings became the law of this case. Petitioners are therefore
barred from revisiting these issues. Any argument that Section 1305 did not apply
to the Commissions review below fails as a matter of law. So too, any argument
that the Commission could not conduct a de novo hearing in which it could
consider the plans that were revised to conform to this Courts ruling in Pfeffer 1
4
by providing only for three loading berths and make its own determination fails as
a matter of law. Without those arguments, the petition in this case is stripped of
any substance and rendered baseless.
The Commission adhered to the essential requirements of the law in its
review of the issues on remand pursuant to this Courts decision in Pfeffer 1. The
Petition should therefore be denied.
II.
Petitioners position implies, without citation to any authority, that the case
was not properly before the Commission on remand. In stark contrast to
Petitioners claim, Florida case law illustrates that decisions from this Court
quashing resolutions of the Commission are to be remanded to the Commission for
it to consider and address the matters resolved by this Courts (or the Third District
Courts) opinion in the certiorari review. See Hernandez-Canton v. Miami City
Comn, 971 So. 2d 829, 831 (Fla. 3d DCA 2007); Dougherty ex rel. Eisenberg v.
City of Miami, 89 So. 3d 963, 964-66 (Fla. 3d DCA 2012); and Jesus Fellowship,
Inc. v. Miami-Dade County, 752 So. 2d 708, 711 (Fla. 3d DCA 2000).
In Hernandez-Canton, the Commission enacted a zoning resolution granting
approval for a development proposed by a developer/applicant. 971 So. 2d at 831.
The objectors of the project sought certiorari review in this Court, which denied
certiorari. Id. On second-tier review, the Third District concluded that the
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Commission and the circuit court had applied the incorrect law and quashed the
ruling of the appellate division of the circuit court required that [t]he matter [ ] be
remanded by the Circuit Court to the Commission for further proceedings
consistent with this courts opinion. Id. (emphasis added). Id.
On remand, as required, the Commission held a hearing in which there was a
disagreement about how to interpret the Third Districts opinion, and in the end it
enacted a new zoning resolution accepting the view of the opinion suggested by the
City Attorney. Id. The objectors sought certiorari review in this Court, which was
denied. Id. They then sought second-tier certiorari review in the Third District,
which ruled that its prior opinion had been misinterpreted in the proceedings on
remand. Id. The Third District therefore granted certiorari and quashed; it vacated
the prior two zoning resolutions of the Commission, and instructed:
We remand this matter to the circuit court
appellate division, with directions to remand the matter
to the City Commission for a new hearing and
determination by the City Commission whether the
proposed project does, or does not, comply with Section
1305 as amended in 2004.
At the new hearing, the developer has the burden
of demonstrating compliance with the new version of
Section 1305. The City Commission must reopen the
record and afford the developer and the objectors an
opportunity to present new evidence if they so choose.
Alternatively, the developer and the objectors are free to
rely on the existing record if they so choose.
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18
The issue of the proper scope of the Commissions review on remand from a
decision of this Court after certiorari review was also extensively addressed by
Judge Wells in her special concurrence in Dougherty v. City of Miami, 23 So. 3d
156 (Fla. 3d DCA 2009). Judge Wells agreed with the majority that the
Commission (on remand) and the circuit court (in a second appeal) were bound by
the doctrine of the law of the case to follow the incorrect ruling first issued by the
circuit in a prior appeal in that case in which the circuit court had found that the
Commission had improperly exceeded its appellate jurisdiction by considering new
evidence at a de novo hearing and finding that it was instead required to conduct a
review limited to . . . the record received from the Zoning Board. Dougherty v.
City of Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009). In her special
concurrence, however, she explained why that first rulingwhich advanced the
very same erroneous argument that Petitioners would like this Court to accept
incorrectly stated the law. Id. at 160-63.
As the concurrence explained, nothing in the Code constricted the
Commissions review of the Zoning Appeals Boards decision. Id. at 161.
Moreover, it noted,
It is, of course, well accepted that local government
decisions regarding building permits are quasi-judicial in
nature and are subject to de novo review. See Broward
County v. G.B.V. Intl, Ltd., 787 So. 2d 838, 842 n. 4
(Fla. 2001) (confirming that local government decisions
on building permits, site plans, and other development
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20
21
See Breed v. Jones, 421 U.S. 519, 531 (1975) (holding that the juvenile criminal
defendant was put in jeopardy at the juvenile court adjudicatory hearing, and
therefore, his subsequent prosecution as an adult violated the Double Jeopardy
Clause of the Fifth Amendment, as applied to the States through the Fourteenth
Amendment).5
The second analogy is just as bad. Here, Petitioners pose an irrational
scenario where an appellate court rules that a case should have been tried in
federal court, and suggest that in such a case the removal of the federal claims
that required proceedings in federal court after-the-fact will not cure the prior
proceedings. Petition at 25. It is nearly impossible to conceive of such a case
because (a) removal to federal court is automatic upon filing of a notice of removal
pursuant to 28 U.S.C. 1446 within the strict time constraints of the statute, (b) a
motion to remand is governed by 28 U.S.C. 1447(c) and is generally due within
30 days after the filing of the notice of removal (and in any event, before entry of
final judgment), and (c) courts of appeal generally lack jurisdiction to review a
district courts order granting a motion for remand, and even in the narrow
circumstances in which such orders are reviewable on appeal, the appeal is from
the district courts remand order (i.e., an appeal must be filed within 30 days of
rendition of such an order). All this makes it virtually impossible for preservation
of an objection to a remand order raised in a plenary appeal following a trial in
state court, thus rendering the analogy unworkable. Even if that situation existed,
it would not mean a new complaint would have to be filed and the proceeding
would have to start anew in federal court. Cf. Salery v. U.S., 373 Fed. Appx. 29, 30
n. 1 (11th Cir. 2010) (quoting Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248,
1252 (11th Cir. 1988) (As a general rule, when a case is removed to federal
district court under original jurisdiction, the federal court treats everything done in
the state court as if it had in fact been done in the federal court. Therefore,
assuming an error occurred in the state court, a federal district court may dissolve
or modify injunctions, orders, and all other proceedings which have taken place in
state court prior to removal.) (citations and quotations omitted). See also Savell v.
Southern Ry. Co., 93 F.2d 377 (5th Cir. 1937); Parry v. Bache, 125 F.2d 493 (5th
Cir. 1942).6
Petitioners third and final analogy is also unsound. They propose that [i]f
an appellate court rules that a jury trial should have been convened, removal of the
claims that required trial by jury after-the-fact will not validate the proceedings.
Petition at 25. However, a decision, judgment, or conviction will not always be
invalidated, and thus all prior proceedings will stand, if there is a determination
that an issue should have been submitted to a jury trial. See Washington v.
Recuenco, 548 U.S. 212, 222 (2006) (Sixth Amendment Blakely error from failure
to submit a sentencing factor to jury, like failure to submit an element to jury, is
no help to Petitioners. In a case removed to federal court in which the district court
denies a motion to remand and the case proceeds to trial in federal court, a finding
by the appellate court that the order denying remand was erroneous does not
necessarily void the proceedings. Even when an objection to an improper removal
is preserved, once a case has been tried, considerations of finality, efficiency, and
economy become overwhelming. Caterpillar Inc., 519 U.S. at 75 (reasoning that
remanding to state court after years of litigation would impose unnecessary and
wasteful burdens on the parties, judges, and other litigants waiting for judicial
attention); see also In re Carter, 618 F.2d 1093, 1099 (5th Cir. 1980) (An order
of remand after entry of final judgment no longer fosters prompt resolution of the
merits of the case, but serves instead only to delay final resolution by subjecting
the litigants to a second, and the state court to a possibly duplicative, trial of the
same matter.). Cf. NewmanGreen, Inc. v. AlfonzoLarrain, 490 U.S. 826 (1989);
Knop v. McMahan, 872 F.2d 1132, 1139 n. 16 (3rd Cir. 1989). Thus, in fact, quite
contrary to Petitioners suggestion, removal of the defectsuch as dismissal of a
nondiverse party that destroyed federal jurisdictioncould be accomplished by the
district court after trial or even by the appellate court on appeal from the trial. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 71-76 (1996); see also American Fire &
Casualty Co. v. Finn, 341 U.S. 6 (1951); and Finn v. American Fire & Casualty
Co., 207 F.2d 114 (5th Cir. 1953). And even where an appellate court reverses the
final judgment and remands to state court, there is no support for the proposition
that the plaintiff is required to re-file the action and start the case anew (as opposed
to a remand for the state court to conduct the trial alone).
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not structural error that will always invalidate conviction.); see also Fleming v.
State, 88 So. 3d 288 (Fla. 1st DCA 2012). Moreover, even if an appellate court
determines that a case should have been submitted to a jury, the only logical
conclusion is that the proper procedure on remand would be to re-try the case to a
jury, without the need to restart the entire case. Ultimately, there is no authority for
the proposition that in such a case, the voluntary dismissal of the claim for which a
jury trial was required would not render the issue moot and keep undisturbed the
verdict entered after a bench trial on the claim that was properly tried.
None of these analogies actually support Petitioners position and none
overcome the analysis of the application of Section 1305, the law of the case, and
the exposition of the cases confirming the propriety of the proceedings before the
Commission on remand from this Courts opinion in Pfeffer 1.
CONCLUSION
Wal-Mart did not seek a variance on remand. It did not request the
Commission to approve plans with the five (5) loading berths originally
contemplated (pursuant to the Citys longstanding legal interpretation of the Code,
which was invalidated by this Court in Pfeffer 1). Rather, as it has throughout the
extended life of this process, it accommodated its Project to fit within the confines
of the requirements for obtaining a Class II Special Permit by conforming the plans
to provide for only three (3) loading berths, consistent with the Courts opinion in
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Pfeffer 1. The Commission on remand did precisely as it should have and as was
commanded by this Court. At the de novo hearing on remand, it considered that the
Project was conformed to provide only three (3) loading berths (which the
Commission surely would have required as a condition in approving the Permit if
the plans had not been conformed to so provide by that time) and carefully
examined and adhered to the findings of this Court rejecting all other challenges to
Wal-Marts application (see, e.g., App. D at 38:145:1; 78:1782:5). It thus
approved the Permit that complied with all requirements of the Code under the law
of the case established in Pfeffer 1.
For these reasons, the Petition must be denied.
Respectfully submitted this 9th day of February, 2015.
LYDECKER | DIAZ
Counsel for Wal-Mart Stores East, LP
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
Tel.: (305) 416-3180
Fax: (305) 416-3190
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
E-mail: jcw@lydeckerdiaz.com
Mark A. Emanuele (FBN 541834)
E-mail: mae@lydeckerdiaz.com
Richard Lydecker (FBN 490555)
E-mail: rl@lydeckerdiaz.com
Manuel A. Diaz (FBN 310514)
E-mail: manny@lydeckerdiaz.com
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CERTIFICATE OF SERVICE
I hereby certify that on this 9th day of February, 2015, a copy of the
foregoing was sent via e-mail to:
Paul C. Savage
E-mail: paul@savagelegal.com
Law Offices of Paul C. Savage, P.A.
100 Almeria Avenue, Suite 220
Coral Gables, Florida 33134
Attorney for Petitioners
Victoria Mendez
John A. Greco
Kerri L. McNulty
E-mail: agreco@miamigov.com
E-mail: klmcnulty@miamigov.com
E-mail: slstubbs@miamigov.com
E-mail: tmickens@miamigov.com
44 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
Attorneys for Respondent City of Miami
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief complies with all the
requirements set forth in Florida Rule of Appellate Procedure 9.100.
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
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