2DP3006 Wal Mart's Response

8/18/2019 2DP3006 Wal Mart's Response

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IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA

Appellate Division Case No. 14-004 AP ______________________________________________________

On Petition for a Writ of Certiorari from a Resolution of the City ofMiami Commission(File No. 13-0103ii)

______________________________________________________

JACOB PFEFFER, et al.,

Petitioners,

v.

CITY OF MIAMI, FLORIDA and WAL-MART STORES EAST, LP,

Respondents.

WAL-MART STORES EAST, LP’S

RESPONSE TO PETITION FOR A WRIT OF CERTIORARI

Joan Carlos Wizel

Mark A. Emanuele

Richard Lydecker

Manuel A. DiazLYDECKER │DIAZ

1221 Brickell Avenue, 19th FloorMiami, Florida 33131(305) 416-3180

Counsel for Respondent

Wal-Mart Stores East, LP

FEBRUARY 27, 2014


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Respondent, Wal-Mart Stores East, LP (the “Wal-Mart”), responds to the

Petition for Writ of Certiorari (“Petition” or “Pet.”) filed by petitioners Jacob

Pfeffer, Catalina Gutierrez, Monika Pobog-Malinowska, Vintage Liquor and Wine

Bar II, Rosi Barrios, Blo Dry Bar Florida, LLC n/k/a Head Kandi, LLC, Sandirose

Madger, Yasmine Garate, Anthony Davide, David Le Batard, and Lebo Studios

(collectively “Petitioners”), as follows:

INTRODUCTION

On August 12, 2013, the Director of the City’s Planning and Zoning

Department (the “Planning Director”) issued a Class II Special Permit (the

“Permit”) to Wal-Mart to allow construction of a new Wal-Mart store (the

“Project”) in a currently blighted parcel (in an otherwise successful development)

in Midtown specifically zoned for a big box retail facility (the “Property”).

Petitioners appealed the issuance of the Permit, first to the City’s Planning

and Zoning Appeals Board (the “Board”) and then to the City of Miami

Commission (the “Commission”). In accordance with the City Code of

Ordinances, two public, quasi-judicial hearings were held, the first before the

Board and the second before the Commission, in which both reviewed de novo the

Petitioners’ challenges to the Permit, and in which Petitioners were afforded the

opportunity to present evidence through sworn testimony, answer questions from

Board and Commission members, and cross examine witnesses. During the

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hearings, both the Board and the Commission accepted testimony and materials

into evidence, reviewed and developed a record.

Upon deliberation, the Board found that the Project fully met the City’s

applicable criteria. Therefore, it denied the Petitioners’ appeal and approved the

issuance of the Permit. The Commission then, among other things, specifically

found that the Project, as presented to the City’s Planning and Zoning Department,

reflected revisions and refinements made based on comments from reviewing

Departments and the Urban Development Review Board (the “UDRB”), and fully

met the City’s Comprehensive Plan and the City Code of Ordinances. Thus, the

Commission unanimously approved the issuance of the Permit, upheld the Board’s

denial of Petitioners’ appeal, and denied Petitioners’ appeal to the Commission.

Having failed to persuade the administrative review agencies in their de

novo examination, Petitioners now seek a Writ of Certiorari to quash the well-

founded decision of the Commission to affirm the Board’s denial of Petitioners’

appeal of the Permit—and do so by raising a myriad of entirely new issues, largely

ignoring the competent substantial evidence presented below and instead

misguiding the Court’s attention to matters outside the scope of the inquiry on

certiorari review, and disregarding the deference owed to the Planning Director’s

interpretation of the rules he is charged with enforcing. The Petition must be

denied.

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STATEMENT OF THE FACTS1

A. The Property and the Applicable Ordinances.

The Property is located at 3055 North Miami Avenue, Miami, Florida, and is

designated as Restricted Commercial in the City’s Comprehensive Plan and Future

Land Use Map, which allows for high intensity commercial retail and residential

development of the type authorized and approved by the Permit. It is located in an

infill development area, which in 2003, after extensive public participation, was

designated as “SD-27 Midtown Miami Special District.”2 It is expressly zoned for

a big box retail facility and subject to the provisions of Ordinance 11000, and

particularly, Section 627. The District is further divided in two sectors: Midtown

Miami East and Midtown Miami West; the Property falls within Midtown Miami

West and is therefore governed by Section 627.2. Moreover, pursuant to Section

627.2, the “Design [S]tandards supplement [Section 627.2] and provide more

detailed clarification.” § 627.2.1.

The stated objective of the SD-27 Midtown Miami Special District is:

[T]o promote neighborhood redevelopment through medium to highdensity mixed use development [so that,] [d]ue to intensity of infill

1

For the convenience of the Court, Wal-Mart will, to the extent practicable, use the Appendix provided by Petitioners; Petitioners’ Appendix will be cited as “App. __, at p. __,” denoting the Tab and page number. Wal-Mart’s(supplemental) Appendix filed concurrently with this Response will be similarlycited as “R.App. __, at p. __,” denoting the Tab and page number.

2 The designation was originally named “FEC Corridor District,” and in2005 it was re-named to its current label.

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development and redevelopment in the SD-27 Districts, populationand the overall level of commercial and retail activity will greatlyincrease.

CITY OF MIAMI, FL, ZONING ORD. 11000, § 627 [hereinafter § 627], PREAMBLE.

“The District is intended for medium scale projects of diverse architectural

design.” Id. Furthermore, the specific intent of Midtown Miami West is to provide

unique innovative development with flexible design in this are specifically zoned

for a big box retail facility. §§ 627.2.1, 627.2.4.

When Miami 21 was adopted in 2009, it was determined that the Property,

having been master planned and zoned separately from Miami 21, would retain its

then-existing designation and continue to be subject to Section 627 and other

provisions of Ordinance 11000 referred to in Section 627, except for appellate

procedures. CITY OF MIAMI, FL, ZONING ORD. 13114, § 2.2.1.1 (hereinafter

“MIAMI 21”).3 Appellate procedures are governed by Article 7 of Miami 21, and

particularly, the procedures applicable to the appeal from the Permit are found in

Miami 21, sections 7.1.1.4, 7.1.1.5, and 7.1.2.4.

3 Section 2.2.1.1 states:

This Code replaces the Zoning Ordinance for the City of Miami, alsoknown as Ordinance 11000 except that Section 627, “SD-27 Midtown

Special District” is hereby retained and incorporated as Appendix Chereto and all provisions of Ordinance 11000 referred to in Section627 shall be applied to Midtown Special District, providing howeverthat within the SD-27 Special District the Planning, Zoning andAppeals Board and procedures related to appeals thereto set out bythis Miami 21 Code shall replace the Zoning Board and proceduresrelated to appeals thereto in Ordinance 11000.

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B. Wal-Mart’s Application.

On August 21, 2012, Wal-Mart submitted its Permit application for the

Project to the City of Miami Planning and Zoning Department. (R.App. A, at p. 1).

The Project consists of 203,277 sq. ft. building, which includes a 158,322 sq. ft.

Wal-Mart store, containing general retail, full service grocery and vision center,

and liner rental space along North Miami Avenue and Midtown Boulevard,

specifically designed to meet the design objectives and intent of the Midtown

Miami Special District. (App. 9, at p. 3).

Throughout the application process, Wal-Mart became actively engaged in

the Midtown-Wynwood community, voluntarily participating in multiple public

meetings with various members and leaders of the community to listen to

residents’ concerns and improve the Project, including five or more public

meetings in which the City’s Planning and Zoning Department participated,. (App.

15, at pp. 31, 158-59, 162, 182).

C. Referral to UDRB and UDRB Meetings

As part of its review process, the Planning Director made referrals to various

departments and boards, including the UDRB.4 (App. 9, at p. 2). On February 4,

2013, the UDRB held a public meeting at which it reviewed various aspects of the

4 Referrals were also made to the Zoning Section of the Planning and ZoningDepartment, Department of Public Works, Office of Transportation, and to theWynwood NET Office, Neighborhood Enhancement Team (“NET”). Thesereferrals are not at issue before the Court.

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Project. At its conclusion, the UDRB voted to defer approval of the Project, and

agreed to revisit it at a second public meeting to further address six (6) items, listed

as “conditions” in its February 4, 2013 Resolution. (App. 6, at p. 1).

The UDRB held a second public meeting to discuss the Project on February

20, 2013. At the end of this second meeting, the UDRB was satisfied that four of

the six conditions had been suitably addressed. The UDRB, however, withheld its

recommendation for approval based on only two grounds: “(1) Provide liners with

active uses to second and third story along North Miami Avenue if parking is not

setback 85 feet minimum[; and] (2) Comply with SD 27.2 Design Standards III

Building Tops & Roofs Standards and Intent 7.1 Building Top, 7.2 Garage roof,

7.3 Roof Tops.” (App. 8, at p. 1).

D. The Permit

Although the City believed that the Project in fact complied with all

requirements relating to the two issues noted in the UDRB recommendation, Wal-

Mart worked closely with the City following the UDRB meetings to address the

two issues and voluntarily revised its plans. (App. 15, at pp. 177-78, 183, 198-99,

209-10; App. 9, at p. 2). The Planning Director issued the Permit on August 12,

2013, finding, among other things, that “[t]he proposed project, as presented[,]

reflect[ed] revisions and refinements made based on comments from reviewing

Departments and the Urban Development Review Board, and [wa]s appropriate in

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scale and size pursuant to the Section 1305 and the Midtown Overlay District

6.27.2 Midtown Miami West.” (App. 9, at p. 2). He further concluded that the

application complied with all requirements of Section 1305 of Zoning Ordinance

11,000 and the Miami 21 Code, Appendix C: Midtown Overlay District 6.27.2

Midtown Miami West. Id.

E. The Board Appeal and Hearing (October 2, 2013)

On August 27, 2013, Petitioners appealed in writing to the Board the

Planning Director’s decision to issue the Permit , setting forth as its basis that (1)

the South Elevation that did not conform to the requirements of the Design

Standards; (2) the South Elevation lacked building continuity with moderate

glazing and awnings fronting North Miami Avenue and NE 31st Street; (3) the

second story failed to comply with the Design Standards and Section 627’s

requirements for parking lot setbacks or liner uses; (4) the building tops and a

parking garage roof did not comply with the Design Standards because there was

no top, roof or decorative cover; (5) the second floor lacked a ten foot setback

along NE 31st Street and NE 34th Street as required by the Design Standards; (6)

the Project had five loading berths which exceeded the maximum number allowed

by Section 627; and (7) the Project added an additional lane of traffic and removed

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on-street parallel parking on NE 31st Street in contravention of the Design

Standards.5 (App. 10, at pp. 3-5).

A quasi-judicial hearing was held on the appeal before the Board on October

2, 2013. (App. 15). At the hearing, Respondents countered Petitioners’ arguments

and presented competent substantial evidence to support the issuance of the Permit.

See id. Regarding Petitioners’ challenges to the Project’s continuity in design,

Respondents presented demonstrative evidence and testimony from the Planning

Director and the City’s Project Manager Rogelio Madan (the “City Project

Manager”) establishing that (i) the design standards do not apply to the concrete

wall along the South Elevation; (ii) the concrete wall in fact has scoring and is not

blank; and (iii) the Project is continuous in its architectural design because there is

vertical and horizontal banding on the elevations, the rooflines and parapets

continue around all sides of the Project, and there is height continuity. (App. 15, at

pp. 115-17; R.App. B, at pp. 12-33).

In response to Petitioners’ challenges to the Project’s five (5) loading berths,

Respondents presented demonstrative evidence and testimony from the Planning

Director and the City Project Manager, establishing that, consistent with the intent

of the provision to regulate traffic, (i) the City has always interpreted the Code to

5 As explained in the argument section below, Petitioners have abandonedmost of these arguments in their Petition, except for the arguments regarding thesecond story parking lot setbacks or liner uses and the loading berths.

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require a minimum of three (3) loading berths; (ii) a previous JC Penney Project

that was issued a Class II Special Permit in 2008 for construction on the Property

had five (5) loading berths; and the neighboring Target project, located in the same

district as the Project, has a total of eleven (11) loading berths. (App. 15, at pp.

151-52; 196-98; R.App. B, at pp. 72-78).6

After presentation of all of the evidence, rebuttal, public comment, and

sufficient time for Board members to ask questions of all parties, the Board passed

a motion to deny Petitioners’ appeal and uphold the Planning Director’s decision

by a vote of six (6) to four (4). (App. 15, at p. 212).

F.

The Commission Appeal and Hearing (November 21, 2013)

On October 17, 2013, Petitioners appealed to the Commission the Board’s

decision to deny the Petitioners’ appeal and uphold the issuance of the Permit. The

Petitioners’ brief on appeal to the Commission was virtually a mirror replica of the

brief filed in their appeal to the Board, raising the exact same issues.

On November 21, 2013, the Commission held the required quasi-judicial

hearing on the appeal from the Board’s resolution. As the hearing began, the

Planning Director provided the background regarding the Permit process. He also

informed the Commission that, in light of the Planning Department’s awareness of

the importance of this issue to the community, there were numerous public

6 Evidence and rebuttal argument was also presented on the other issuesabandoned in this certiorari review. See ibid n. 6, at 8.

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meetings held, and assured the Commission that “every bit of feedback we

received in every one of these meetings was certainly taken to heart and

incorporated in our decision.” (App. 24 at p. 6.) The Planning Director explained

that the Permit was referred to NET and to the UDRB, which he described as

“advisory to the Planning and Zoning Director, which means, quickly, that their

advisory recommendations can be taken into consideration, and we certainly do

that, but can be incorporated or set aside, if we find them not to be consistent with

applicable ordinances.” Id . at 5. He explained that the UDRB voted to recommend

denial based on two grounds, and that the Planning Department “took that advice

and . . . worked with the applicants to ensure that those [two] items were addressed

appropriately. And they were.” Id . at 8. The Planning Director concluded by

emphasizing that he found that the Project, “complies with all applicable

regulations, and therefore, was deserving of our approval.” Id .

Wal-Mart’s counsel then guided the Commission on the evidence supporting

the Board’s decision to deny Petitioners’ appeal and to uphold the Planning

Director’s decision to issue the Permit, through a presentation consisting of, among

other things, the plans and diagrams initially submitted to the UDRB compared

with those submitted to and approved by the Planning Department following the

UDRB meetings, the Project’s comparison to similar projects in the area (including

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a JC Penney project that had been approved in 2008 for the Property and the

neighboring Target project), and testimony of expert Ana Gelabert.

Significantly, Ms. Gelabert served as the Planning Director for the City of

Miami for twelve years (from 1998 to 2010)—during which time Section 627 and

the Design Standards applicable to the Project were all adopted—enforcing the

very Code at issue in the case. Id . at 95. Ms. Gelabert testified in favor of issuance

of the Permit, addressing each issue raised by the Petitioners’ appeal, including the

issues relevant for this Court’s certiorari review.

On the requirement for liner use, Ms. Gelabert explained that “liner uses,”

defined expressly in the Design Standards, are “‘storefronts and building fronts

that conceal a larger use from view, such as a parking garage.’” Id at. 99.

Specifically, she testified that Section 672.2.12 states that upper level parking

facilities that do not incorporate liners must be set back 85 feet and cannot exceed

a height of 50 ft. Id . She testified the second floor of the Project complied with this

requirement because it has a building front that conceals the larger use from view.

Id . at 100. She further testified that the third floor parking also complies with the

requirement because it is indeed set back the required 85 feet, and only reaches a

height of 48 feet. Id .

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On the issue raised by appellants pertaining to the number of loading berths

permitted by the Code, consistent with Wal-Mart’s position,7 Ms. Gelabert testified

that the Code has always been interpreted to mean that loading berth requirements

represent the minimum number allowable, adding that when she was reviewing

projects as Planning Director, proposals that were, like the Project, designed with

loading berths inside their facility were favored over the projects which proposed

that loading take place on street. (App. 24, at pp. 108-09.)

Regarding the issue of design continuity—albeit in her discussion of the

argument asserted by Petitioners below which differs significantly from the

argument now presented to this Court—Ms. Gelabert testified that the Design

Standards certainly do not regulate style; they regulate architectural elements —

such as, “what should happen in the low, what should happen in the middle, what

should happen on the upper [levels].” Id . at 98.

7 Wal-Mart argued that ordinances relating to loading berths have always been interpreted in Miami, and throughout South Florida, as providing a minimumnumber allowable. Id . at 88-89. It was explained that interpreting that number as amaximum is illogical because the end result is a road backed up with trucks. Id. at89. Illustrating this point, a comparisons was drawn with the JC Penney and Target

projects: consistent with its interpretation of the requirements, the City had previously approved five loading berths for the JC Penney project (which had lesssquare footage) approved for the same site as the Wal-Mart project; further, it wasshown that the neighboring Target project was approved and currently has eleven(11) loading berths. Both of these projects’ loading berths were approved through aClass II Special Permit without variances, as was the Wal-Mart project. ( Id . at 90;App. 23, at pp. 76-77.)

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Finally, as it pertains to the Code’s requirement of 65% pedestrian access for

primary streets—an issue first raised by Petitioners during the hearing—Ms.

Gelabert testified that there were a combination of factors that activated the space

and promoted pedestrian traffic, including doors, transparent glass, and the nature

of the activities occurring behind the walls of the building. Id . at 133. Referring to

a diagram to illustrate her point, Ms. Gelabert testified that on the North Miami

side, 65% pedestrian access is required, which would be 292 feet. The Project

plans provide 299 feet. On NE 31st street, a secondary street, 50% pedestrian

access is required, which amounts to 244 feet. The Project plans provide 254 feet.

She thus testified that Project plans not only meet the requirements, but exceed

them. ( Id . at 101-02; App. 23, at p. 56).8

At the conclusion of the arguments, the floor was opened to public

comment. (App. 24, at pp. 147-184). Thereafter, Chairman Sarnoff concluded the

hearing and made a motion for a Commission vote by stating:

When I met with Walmart and when I met with the folks that opposeWalmart, I was very clear that I would not make this decision basedon where something was manufactured or who had green roofs. Thewhole thing would come down to who presented credible testimonythat demonstrates that Walmart, as of right, had the ability to go in

there. And having had the ability to go through this hearing and seethe presentations, in my mind, it is clear that, based on the credibleevidence presented before this Commission today, that Walmart has

8 As in the appeal to the Board, the Respondents also presented, and theCommission accepted, competent substantial evidence regarding the other issuesraised then, but abandoned by Petitioners in the Petition.

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demonstrated that it does fit within the open Class II permit, and weshould deny this appeal … I’m going to make a motion to deny theappeal and uphold the Class II permit.

Id . at 185.

The Commission voted unanimously to deny the appeal, affirm the Board’s

denial of the Petitioners’ appeal, and approve once again the Permit. Id . at 186.

STANDARD OF REVIEW

The Court’s review of local agency action “is deliberately circumscribed out

of deference to the [local] agency’s technical mastery of its field of expertise,”

Broward County v. G.B.V. Int’l Ltd., 787 So. 2d 838, 843 (Fla. 2001), and is

governed by a three-pronged analysis: “(1) whether procedural due process [wa]s

afforded, (2) whether the essential requirements of the law have been observed,

and (3) whether the administrative findings are supported by competent substantial

evidence.” Id.; see also City of Deerfield Beach v. Vaillant , 419 So. 2d 624 (Fla.

1982). The observance of due process is not at issue here, thereby limiting the

Court’s review to the last two prongs of the analysis.

A.

Essential Requirements of the Law

“On a petition for the common-law writ of certiorari, the legal correctness of

the judgment of which review is sought is immaterial. 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

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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.; 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 Comm’n, 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). The Commission applied the correct law in its review of the issues raised

by Petitioners in the appeal before the Commission.

B.

Competent Substantial Evidence

The Florida Supreme Court has similarly defined competent substantial

evidence as being “tantamount to legally sufficient evidence.” Fla. Power & Light

Co. v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). In accord with Florida

law, Miami 21 defines “competent substantial evidence” as,

testimony or other evidence based on personal observation, or fact oropinion evidence offered by an expert on a matter that requiresspecialized knowledge and that is relevant to the issue to be decided.Competent substantial evidence is evidence a reasonable mind couldaccept as adequate to support a conclusion.

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MIAMI 21 § 7.1.4.3(b).

To determine if the Commission’s decision was supported by competent

substantial evidence, this Court must only “review the record for evidence that

supports the [City’s] decision, not that rebuts it—for the court cannot reweigh the

evidence.” G.B.V. Int’l Ltd., 787 So. 2d at 846 n.25 (citing Heggs, 658 So. 2d at

530); and Educ. Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals,

541 So. 2d 106, 109 (Fla. 1989)); see also Dusseau v. Metro. Dade County Bd. of

County Comm’rs, 794 So. 2d 1270, 1274 (Fla. 2001) (noting that on petition for

writ of certiorari, courts must review the record to assess only the evidentiary

support for the agency’s decision). In other words, “[e]vidence contrary to the

agency’s decision is outside the scope of the inquiry,” as this Court cannot

“reweigh the ‘pros and cons’ of conflicting evidence.” Dusseau, 794 So. 2d at

1274. If the record contains competent substantial evidence to support the agency’s

decision, the decision is presumed lawful, which signifies the end of this Court’s

labor. Id. Thus, this Court must only consider the evidence in the record presented

by Wal-Mart and the City supporting the Commission’s determination and must

disregard all counter evidence presented by the Petitioners at the hearings below.

ARGUMENT

The Petition should be denied because (1) Petitioners waived most of the

arguments made for the first time in this certiorari proceeding by failing to

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squarely present them at any point below; (2) on all issues, including those waived,

the Commission observed the essential requirements of law; and (3) the

Commission’s decision is supported by competent substantial evidence. Petitioners

present three arguments (the last of which has several subparts). (Pet., at pp. 23-

38). For ease of reference, the arguments are refuted in the same order below.

I. THE COMMISSION OBSERVED THE ESSENTIAL

REQUIREMENTS OF LAW IN ALL ASPECTS

RELATING TO THE REFERRAL TO UDRB

Petitioners first argue that the Planning Director failed to comply with the

essential requirements of the law by ignoring “mandatory” language of referral to

the UDRB.9 This argument is procedurally barred and substantively meritless.

A.

Petitioners failed to present below their (incorrect)

argument that the Planning Director was bound by the

recommendation of the UDRB, and as such, it is waived.

First, this Court should not even consider Petitioners’ argument on this

issue. It was not preserved for appeal, as it is being raised for the first time on

certiorari review in this Court.

Under Florida law, generally, “it is not appropriate for a party to raise an

issue for the first time on appeal.” Sunset Harbor Condo. Ass’n v. Robbins, 914 So.

2d 925, 928 (Fla. 2005) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731

So. 2d 638 (Fla. 1999)). Thus, “[i]n order to be preserved for further review by a

9 Although Petitioners mention the referral to the NET Office in passing,there is no argument challenging that referral.

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higher court, an issue must be presented to the lower court and the specific legal

argument or ground to be argued on appeal or review must be part of the

presentation if it is to be considered preserved.” Sunset Harbor , 914 So. 2d at 928

(internal quotation omitted). The rule is based on practical necessity and basic

fairness; it places the lower tribunals on notice that error may have been

committed, and provides an opportunity to correct it at an early stage. Reznik v.

FRCC Prods., Inc., 15 So. 3d 847, 849 (Fla. 4th DCA 2009). Moreover, Petitioners

expressly appealed the Permit to the Board under to Section 7.1.2.4 of Miami 21,

which specifically requires that: “The filing of the appeal shall state the specific

reasons for such appeal . . . .” (Emphasis added.) See (App. 15, at p. 1).

Petitioners never made this argument in their appellate writings to either the

Board or the Commission. If Petitioners truly believed the Planning Director was

bound by the recommendation of the UDRB, they should have raise this issue in

their appellate submissions—first to the Board, and then to the Commission.

Instead, Petitioners laid in wait and failed to raise their “mandatory language”

argument until after it was too late. Petitioners, however, cannot sit back and

harbor error to be used as an appellate parachute in the event of they find

themselves at a loss at the end of the proceedings. Thus, this issue has been waived

and this Court should not now consider it in the first instance. See Sunset Harbor ,

914 So. 2d at 928; see also Kemp v. McDonough, 955 So. 2d 635, 637 (Fla. 1st

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DCA 2007) (failure to squarely present the issue to the lower court precluded

consideration of the issue on certiorari review).

B. Nonetheless, substantively, Petitioners’ argument

pertaining to the recommendations of the advisory

bodies misstates the applicable law.

The recommendations of both the NET Office and the UDRB were merely

advisory and were not binding on the Planning Director. A contrary interpretation

of the applicable provisions (outlined below) would not only conflict with the

UDRB’s own understanding of its advisory role, but would yield the absurd result

of giving both the NET Office and the UDRB veto power over the Planning

Director’s “solely responsib[ility]” for the issuance of Class II Special Permits—an

outcome clearly not contemplated by the code.

Section 1301.2 of Ordinance 11000,10 titled “Class II Special Permits; intent;

determinations by Director of department of Planning and zoning; referrals,”

states, in relevant part:

The Director of the Department of Planning and Zoning shall be solely responsible for review for compliance and consideration ofapplications for Class II Special Permits.

***The Director shall make such referrals to other officers, agencies,

boards or departments as are required by regulations relating to the particular special permit and may make other referrals deemednecessary by him before arriving at his decision. Decisions of the

10 This section applies to the Project as a provisions of Ordinance 11000referred to in Section 627. MIAMI 21 § 2.2.1.1.

.

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Director regarding Class II Special Permits shall be affected andlimited by reports received on referrals as provided in Article 15,Section 1502.

(Emphasis added.)

Under the referenced Section 1502, the Planning Director is directed to

make “referrals to such other officers, agencies, or departments as are required in

the case by this zoning ordinance or which are, in the director’s judgment,

necessary to proper disposition of the application.” Section 1502 further states,

“All Class II Special Permit applications shall be referred to the applicable

Neighborhood Enhancement Team (NET) Office.” In the case of the Midtown

Special District, the Design Standards also require referral to the UDRB.

Additionally, the Design Standards require that, “All architectural design plans will

be reviewed by UDRB as part of the Class II permitting process, for compliance

with these standards.” DESIGN STANDARDS at pg. 4.

Conspicuously absent from Petitioner’s analysis is the guidance provided by

Section 1502 relating to the Planning Director’s use of information gained from

referrals. In plain terms, Section 1502 states, “the director shall give full

consideration to advice or information received as a result of such referrals in

arriving at his decision.” (Emphasis added.) The language of the Code simply does

not require the Director to approve or disapprove the permit based upon the

findings of the UDRB or NET Office. Rather than tying the Planning Director’s

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hands, the referrals were intended to provide additional information and analysis,

which were to be fully considered by the Planning Director in reaching his

decision—a decision which he alone was solely responsible for making. In fact, at

the February 20, 2013 UDRB meeting, members of the UDRB openly

acknowledged that their decision was a non-binding recommendation to the

Planning Director. See, e.g., (App. 7, at pp. 73, 76).

Plainly, despite Petitioner’s assertions to the contrary, the Planning Director

was entirely correct in stating at the Commission hearing that the UDRB

recommendations are “taken into consideration . . . but can be incorporated or set-

aside, if we find them not to be consistent with applicable ordinances.” (Pet., at p.

26; App. 24, at p. 5).

Accordingly, it is clear from the language of the Code and the understanding

of those tasked with issuing the recommendations that reports received upon

referral were advisory in nature and non-binding upon the Planning Director.

C.

Notwithstanding, this issue is a red herring, because the

record is replete of competent substantial evidence showing

that the Planning Director did take the UDRB

recommendation into full consideration.

Despite Petitioners’ waiver of this argument and their misleading

interpretation of the advisory nature of the UDRB’s recommendation to the

Planning Director, the record clearly shows that the Planning Director’s decision

was indeed affected by the referrals. In its February 20, 2013 resolution, the UDRB

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provided two reasons for denying the Project: (1) lack of liner uses on the second

and third floor along Miami Avenue if parking is not set back 85 feet, and (2) lack

of compliance with “SD 27.2 Design Standards III Building Tops & Roofs

Standards and Intent 7.1 Building Top, 7.2 Garage roof, 7.3 Rooftops.”11

As explained above, the plans for the Project submitted to the Planning

Director had been modified significantly from those submitted to the UDRB, in

order to take into consideration the recommendations of the UDRB’s resolution.

As to the issue relating to the parking garage rooftop, the submittal to the UDRB

showed a drab, un-landscaped rooftop. (App. 23, at p. 52). Following the UDRB

meetings, Wal-Mart revised its proposal. (App. 23, at pp. 53-54). The revised plans

show that the Project designers, working with the Planning Department, took great

care to incorporate the UDRB’s input into its plans. The post-UDRB submittal

shows a rooftop landscaped with 120 trees, four 790 square feet trellises, stained

concrete covering 37% of the rooftop, and rooftop enclosures. Specifically, the

11 These SD 27.2 Design Standards provide:

7.1 Building TopsResidential towers shall have distinctive building tops or finialswhenever possible.

7.2 Parking Garage RoofUncovered parking garage roofs shall be concealed with creative,colored surfaces and landscaping.

7.3 Roof TopsAll roof top equipment must be concealed. Green roofs or roof tops planted with heat tolerant, low maintenance cultivated plant life arestrongly encouraged. Recreational uses are encouraged on roof tops.

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revised proposal calls for 14 Shady Lady trees, which would be approximately 14

feet tall and provide an 8 to 10 foot canopy to shade planters located throughout

the rooftop; 54 Montgomery Palms, which would be approximately 16 feet tall

with a 10 foot canopy covering seating areas with planters; 46 Thatch Palms,

which would be approximately 10 feet high with a 6 foot canopy; and additional

accent trees at the access points. (App. 24, at pp. 85-87).

From the dramatic change in the design and the abundance of color and

greenery added to the design, it is clear that Wal-Mart’s revised plan alleviated the

issue raised by the UDRB as to the parking garage rooftop. Thus, in considering

the UDRB’s concerns in comparison with the revised plans, the Planning Director

was well within his authority in approving the Project.

Likewise, as to the issue raised by the UDRB relating to liner uses on the

second and third floor of Miami Avenue, the UDRB submittal and post-UDRB

submittals stand in clear contrast to one another, reflecting the care taken by the

Project designers and Planning Department to address the UDRB’s comments. The

revised Project proposal shows a dramatic increase in the amount of usable retail

space lining on the second floor. Even where there are not retail uses, the entire

perimeter of the building front conceals the larger use, which meets the definition

of a liner use. Additionally, although not required where a liner is provided, in

places where there are no retail uses, the parking spaces are set back 85 feet. (App.

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23, at pp. 45-47). Where there is no liner use on the third floor, parking is set back

the required 85 feet. As a result, the issues expressed in the UDRB resolution were

addressed by the revised design plans submitted to the Planning Director after the

UDRB hearing.

In addition, the Planning Director testified at length in the record, that the

Project fully complied with all regulations applicable for the issuance of the Permit

and specifically addressed the issues noted by UDRB:

[The City’s] position is, and what we’ve presented to you is that, notonly those two conditions, but basically the substance of what theUrban Development Review Board communicated to us throughoutthat hearing was accepted and translated into modifications to the proposal that addressed those concerns. . . . It is our responsibility inthe end to take all that feedback, which is sometimes uniform,sometimes varied and translate it into modifications to the project tosatisfy their concerns as well as the code requirements. And we are[re]presenting to you that that was accomplished, that those

recommendations were taken into consideration and addressed by the project as approved.

***So when looking at this, I must -- It is certainly not the case Idisregarded it. I think some description along those lines was made,and I absolutely object to that. Their comments, their concerns, theirfeedback was not disregarded. It was, as I have to do, interpret it andapply it in the best possible light to make sense out of it. And that wedid do for this project more so, very likely, than for any other projectthat I can recall in my three-year tenure as your Planning and ZoningDirector, which is plenty to say.

***BOARD MEMBER GUTIERREZ: I just want to reiterate at least theway the -- while the UDRB did not support this project, they wroterecommendations in the end were taken into account of what youlooked at when you provided the Class II permit, correct?

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DIRECTOR GARCIA: That is correct.

(App. 15, at pp. 177-78, 183, 198-99); see also id. at 209-10 (conclusion of Board

Member Piña leading to the motion to deny the appeal and uphold the Planning

Director’s decision to issue the permit: “Is the use allowable? Yes. Have they

complied or implemented some of the UDRB conditions? Yes.”).

At the Commission hearing, the Planning Director also testified that the

UDRB “specified items that they were not satisfied with and that should be revised

or amended, we took that advice and we worked with the applicants to ensure that

those items were addressed appropriately. And they were.” (App. 24, at pp. 7-8).

Thus, the record shows an abundance of competent substantial evidence that

following the UDRB meetings, the Respondents worked closely to ensure that the

UDRB’s recommendations were addressed. Petitioners’ argument on this issue

lacks any merit.

II.

THE COMMISSION OBSERVED THE ESSENTIAL

REQUIREMENTS OF LAW IN THE FORM OF ITS

RESOLUTION AND IN ITS APPROVAL OF THE

PLANNING DIRECTOR’S FINDINGS

Next, Petitioners challenge (1) the sufficiency of the findings made by the

Commission in denying their appeal and (2) the findings of the Planning Director

in the Permit issued. The challenge to the Commission’s findings is unfounded

because the Commission was not required to set out specific findings of fact in its

resolution, and the challenge to the findings of the Planning Director were not

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preserved for appeal, and, even if it had been preserved, the Planning Director’s

findings are sufficient.

A. Petitioners’ challenge to the findings of fact made by the

Commission is unfounded.

Petitioners argue that the Commission departed from the essential

requirements of the law by issuing a “generalized” Resolution “with no factual

basis” affirming the decision of the Board, rather than setting forth written findings

of the items enumerated in Section 1305 of Ordinance 11000 and rebutting the

Petitioners’ appeal. Pet. at 28. The argument is without merit because, as stated

previously, the procedures governing the decision made by the Commission in its

appellate capacity are set forth in Miami 21 rather than Ordinance 11000, and the

Commission’s Resolution satisfy the essential requirements of the law in light of

the actually applicable regulations. Moreover, the findings of the Commission

were sufficient to permit meaningful judicial review.

1. The Commission was not required under Miami 21 to

issue the written findings now demanded by

Petitioners.

The process for approval of the Permit was carried over from Section 627 of

Ordinance 11000 and incorporated into Miami 21, except for appellate procedures

related thereto. MIAMI 21, Art. 2, § 2.2.1.1 (“Section 627, “SD-27 Midtown

Special District” is hereby retained and incorporated . . . providing however that

within the SD-27 Special District the Planning, Zoning and Appeals Board and

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procedures related to appeals thereto set out by this Miami 21 Code shall replace

the Zoning Board and procedures related to appeals thereto in Ordinance 11000.”)

The appellate procedures related to appeals of a planning determination to the

Board and to the Commission are established in Article 7 of Miami 21. Nothing in

Article 7 requires the Commission to make specific findings of fact. Rather,

Section 7.1.4.5, which establishes the hearing procedures for appeals to the

Commission, only requires that the Commission make its decisions based on

competent substantial evidence. Id. Art. 7, § 7.1.4.5(d). That is the standard the

Commission adhered to in its decision to affirm the Board’s denial of the appeal

and its approval of the Permit, as stated in its Resolution.

Petitioners rely on the (outdated) provision of Section 1305 of Ordinance

11000 requiring “written findings and determinations in accordance with the

established applicable criteria set forth in this zoning ordinance and the City

Code.” The pre-Miami 21 case of Lucia Dougherty v. City of Miami and

Morningside Civic Association, Inc., 13 Fla. L. Weekly Supp. 959a (Fla. 11th Cir.

July 14, 2006), relied upon by Petitioners, interpreted Section 1305 to require the

Commission to make such written findings on appeal. At the time Lucia Dougherty

was decided in 2006, Miami 21 had not been implemented and the governing

procedures for appeals to the Commission in place at that time required written

findings and determinations from the Commission. That case is no longer

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applicable in light of the implementation of Miami 21’s appellate procedures that

expressly replaced the appellate procedures of Ordinance 11000, and which do

away with the odd and outdated requirement for written findings on appeal.12

Accordingly, the Commission was not required to make the written findings

and determinations argued by the Petitioners; rather, under the procedures set forth

in Article 7 Miami 21, was only required to make its determination based on

competent substantial evidence in the record, which it did.

12 Even the court in Lucia Dougherty noted the oddity of that eradicatedrequirement, explaining that, “Florida case law does not require specific findingsof fact provided that the ruling is supported by competent substantial evidence.”

Lucia Dougherty, 13 Fla. L. Weekly Supp. at 959a. See also See, e.g., BrowardCnty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 848-49 (Fla. 2001) (Wells, C.J.,concurring) (“I also write separately to express my disagreement with JusticePariente’s view that written statements must be required in all cases where a localgovernment is acting in a quasi-judicial capacity in a zoning hearing and decision.

I believe this requirement is too cumbersome and could lead to delay, boilerplatewritings, and, likely, to litigation over whether the local government’s writtenstatements are sufficient. Not every zoning decision needs written findings.”); Bd.of Cnty. Comm’rs of Brevard Cnty. v. Snyder , 627 So. 2d 469, 476 (Fla. 1993)(“While they may be useful, the board will not be required to make findings offact. However, in order to sustain the board’s action, upon review by certiorari inthe circuit court it must be shown that there was competent substantial evidence presented to the board to support its ruling.”); Alachua Land Investors, LLC v. Cityof Gainesville, 15 So. 3d 782 (Fla. 1st DCA 2009) (“A circuit court, conductingcertiorari review of a local government's quasi-judicial decision on a development

application, may uphold the decision even in the absence of supportive factualfindings, so long as the court can locate competent substantial evidence consistentwith the decision (and, of course, conclude the local government applied thecorrect law and did not deprive the petitioner of due process).”); see also BellSouth

Mobility, Inc. v. Miami-Dade Cnty, 153 F. Supp. 2d 1345, 1351 (S.D. Fla. 2001)(“A local board is not required to make specific findings of fact in order to supportits decision, as long as competent substantial evidence support its ruling.”).

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2. Even if the Commission was required to make written

findings and determinations, its findings were

sufficient.

If this Court finds that the Commission was required to issue written

findings and determinations for its decision to affirm the decision of the Board, the

Commission’s Resolution should be affirmed because its written findings of fact

were sufficient. The Commission’s findings consisted of the following:

a. [1] The proposed project will be beneficial to the surrounding area by providing new retail and service facilities while creating jobs

for the area b. The proposed project, as presented reflects revisions and

refinements made based on comments from [2] reviewingDepartments and [3] the Urban Development Review Board, and[4] is appropriate in scale and [5] size pursuant to Section 1305 and[6] the Midtown Overlay District 6.27.2 Midtown Miami West.

c. The proposed project is in compliance with the MiamiComprehensive Neighborhood Plan in that [7] it promotes urbaninfill and [8] is consistent with the Buena Vista East Regional

Activity Center (RAC), designation as applied to this property

d. This application has been reviewed pursuant to [9] Section 1305 ofthe Zoning Ordinance 11000 and [10] the Miami 21 Code,Appendix C: Midtown Overlay District 6.27.2 Midtown MiamiWest and found to be sufficient.

(App. 25., at pp. 1-2).

In denying the appeal and affirming the decision of the Board to approve the

issuance of the Permit, after conducting a de novo review and finding there to be

substantial competent evidence in the record to support the Board’s decision, the

Commission’s findings set forth sufficient information to afford meaningful

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judicial review. Contrary to Petitioners’ assertions, the Commission did not merely

recite vague and conclusory findings. Rather, it addressed each rule the Project

needed to be in compliance with and set forth the Project’s compliance therewith.

In doing so, the Commission did not make one generalized statement about

the Permit’s compliance with Zoning Ordinance 11000 as a whole, but rather made

ten (10) specific findings regarding the Permit’s compliance with each applicable

rule governing the Project. Contra Lucia Dougherty, 13 Fla. L. Weekly Supp.

959a. (where the resolution disapproving the issuance of the permit was comprised

of one statement: “[T]he Class II Special permit does not met the applicable

requirements of Zoning Ordinance No. 11000, as amended.”); and City of Winter

Park v. Metropolitan Planning Organization for the Orlando Urban Area, 765 So.

2d 797 (Fla. 1st DCA 2000) (finding the judge’s statement that “the motions to

dismiss were well-taken” insufficient in light of Florida’s Administrative

Procedure Act’s requirement to state with specificity the reasons for refusing to

grant a petition for a hearing). The written findings of the Commission are

sufficient as a matter of law and should not be disturbed on appeal.

B. Petitioners’ challenge to the Planning Director’s findings

was waived by their failure to present the issue below, andin any event, it too is unfounded and futile.

Petitioners now argue that the Planning Director, in issuing the Permit, failed

to make written findings and determinations addressing the standards set forth in

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Section 627.2, the procedural regulations in Zoning Ordinance 11000, and the

concerns of the UDRB. Petitioners, however, failed to preserve this argument by

not raising it in the appeal to the Board or even in the appeal to the Commission.

Moreover, even if the issue was properly preserved for appeal, Petitioners’

challenge to the Planning Director’s findings is futile and meritless because the

Board conducted a de novo review of the Planning Director’s decision, and

because the findings and determinations of the Planning Director are sufficient as a

matter of law.

1. Petitioners waived this argument by failing to raise

the issue below.

Petitioners attempt to present this issue for the first time in this certiorari

proceeding. At no point during the appeal to the Board or to the Commission did

Petitioners assert this issue. Because it has never been raised until this appeal, the

issue has been waived. Ibid at 17-19. See MIAMI 21, Art. 7, § 7.1.2.4; Sunset

Harbor , 914 So. 2d at 928; Kemp, 955 So. 2d at 637; Reznik , 15 So. 3d at 849.

2. Petitioners’ challenges are futile because the Board

conducted a de novo review of the record, and

furthermore, consistent with Florida jurisprudence,

the Planning Director’s findings are sufficient.

If this Court finds that Petitioners preserved this argument, it remains futile

because the written findings and determinations were not necessary to permit

meaningful judicial review of the Planning Director’s decision in light of Miami

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21’s requirement that the Board conduct a de novo review of the Planning

Director’s decision. MIAMI 21 §§ 7.1.1.4(b)(10), 7.1.2.4(e). In light of the fact that

the Board did conduct a de novo review of the record the Planning Director based

his decision upon, the issue of whether the Director’s written findings and

determinations were specific enough to provide the Commission with a meaningful

opportunity for quasi-judicial review is a moot point.

The Board did not conduct its review nor make its decision based on the

written findings and determinations made by the Planning Director, but made its

decision based on its de novo review of all of the evidentiary record. It is also

worth noting that the Planning Director testified extensively, first before the Board

and then again before the Commission, as to the Planning Department’s review of

the Project and the approval process, all of which was part of the record when the

Board and the Commission issued their decisions in the case. Accordingly,

Petitioners’ argument that the Planning Director’s findings were generalized

statements with no factual basis in contravention of Section 1305 is futile,

inconsistent with the record, and irrelevant at this stage of the proceedings.

Moreover, in accordance with prevailing Florida jurisprudence, the Planning

Director’s findings and determinations were sufficiently specific. Section 1305 of

Zoning Ordinance 11000 states that the Planning Director shall make written

findings and determinations in accordance with the established applicable criteria

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in the Code. The Planning Director made such findings in the Permit, which

findings included:

•

[1] The proposed project will be beneficial to the surrounding area by providing new retail and service facilities while creating jobsfor the area.

• The proposed project, as presented reflects revisions and

refinements made based on comments from [2] reviewing

Departments and [3] the Urban Development Review Board , and[4] is appropriate in scale and [5] size pursuant to the Section 1305and [6] the Midtown Overlay District 6.27.2 Midtown MiamiWest.

•

The proposed project is in compliance with the MiamiComprehensive Neighborhood Plan in that [7] it promotes goodurban infill and [8] is consistent with the Buena Vista EastRegional Activity Center (RAC), designation as applied to this property.

• This application has been reviewed pursuant to [9] Section 1305 of

ZO 11,000 and [10] the Miami 21 Code, Appendix C: MidtownOverlay District 6.27.2 Midtown Miami West and found to be

sufficient.

(App. 9, at p. 2 (emphasis added)).

The Planning Director’s findings, and emphatically the last finding, state

that the application was reviewed under section 1305 and was found to be

sufficient. Section 1305 simply requires written findings and determinations in

accordance with the established criteria set forth within section 1305 and the City

Code and the Planning Director’s findings reflect that requirement. To engage in

an argument regarding which semantics need to explicitly set forth within the

Planning Director’s final decision would be cumbersome and useless when the

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result would be the same. This is precisely the type of exercise the Florida

Supreme Court wished to avoid in deciding that boards or commissions need not

set forth specific findings of fact but rather only ensure the decision below was

supported by competent substantial evidence. See Broward Cnty. v. G.B.V. Int’l,

Ltd., 787 So. 2d 838, 848–49 (Fla. 2001) (Wells, C.J., concurring).

Accordingly, the argument that the Planning Director’s findings were not

sufficiently specific is futile, as the Board conducted a de novo review of the

Planning Director’s decision, and in any event, the Planning Director’s findings

and determinations were adequate as a matter of law.

III. THE COMMISSION ADHERED TO THE ESSENTIAL

REQUIREMENTS OF THE LAW IN ITS REVIEW OF

THE ISSUES RAISED BELOW AND ITS DECISION

WAS SUPPORTED BY COMPETENT SUBSTANTIAL

EVIDENCE IN THE RECORD

In the only section of the Petition that actually relates to the substantive

arguments presented in their written appellate submissions to the Board and the

Commission challenging the Project’s compliance with the Design Standards and

Section 627, Petitioners abandon most of the arguments raised below,13 raise

13

Arguments abandoned include those relating to: (1) the South Elevation’scompliance with scaling elements requirements; (2) the South Elevation’scompliance with building continuity requirements; (3) third story parking lot’scompliance with setbacks or liner uses requirements; (4) the building tops and a parking garage roof’s compliance with the Design Standards; (5) the requirement(or lack thereof) for second floor set back along NE 31st Street and NE 34th Street;and (6) the streetscape standards for NE 31st Street.

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entirely new arguments,14 and only re-assert the arguments preserved below on (1)

the liner uses and setbacks relating to the second level garage facility and (2) the

number of loading berths approved.

Based on the application of Ordinance 11000, the Design Standards, and the

evidence presented by Respondents below on these issues, the Commission

adhered to the essential requirements of the law and its decision was supported by

competent substantial evidence, such that this Court must affirm the decision of the

Commission and deny the Petition.

A. Continuity of Design


the issue below.

This argument is improperly made for the first time to this Court. The only

building continuity argument Petitioners raised below was limited to the South

Elevation, in which Petitioners compared the Project’s concrete façade with

moderate glazing and awnings fronting North Miami Avenue and NE 31st Street

and the wall along the South Elevation. (App. 10, at p. 3; App. 17, at p. 4).

Petitioners, however, failed to raise the argument it now seeks to assert as to the

Project’s continuity in design: that all sides of the proposed structure lack

continuity because the West and North Elevations feature the Wal-Mart store, the

14 Newly raised arguments include: (1) 65% pedestrian access requirement;and (2) building continuity requirements applied to all four Elevations of the project.

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East Elevation is a modern glass frontage, and the South Elevation is a precast

concrete wall. Having failed to raise this issue squarely in their appellate briefs to

the Board and the Commission, neither the Board nor the Commission actually

considered or issued a determination of the challenge to the building continuity

now presented to this Court. This issue has been waived. Ibid at 17-19. See MIAMI

21, Art. 7, § 7.1.2.4; Sunset Harbor , 914 So. 2d at 928; Kemp, 955 So. 2d at 637;

Reznik , 15 So. 3d at 849.

2.

Notwithstanding, Respondents presented competentsubstantial evidence establishing the Project’s

compliance with the Design Standards’ requirement

for continuity in design.

Because Petitioners failed to raise this issue below, the evidence presented to

the Board and the Commission did not focus on the building continuity argument

now presented to this Court. Notwithstanding, the competent substantial evidence

in the record, although relating to a different building continuity challenge made by

Petitioners below, actually establishes as well the Project’s compliance with the

Design Standard’s requirement for continuity in design now raised by Petitioners.

In their argument to this Court, Petitioners incorrectly imply that Design

Standard 2.4 requires that all sides of the Project have continuity in appearance and

style, rather than in design. However, as explained by expert Ana Gelabert at the

Commission hearing, Design Standard 2.4 refers to architectural elements, not

style. She explained:

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And I would also like to add, because it was brought up, thecontinuity as far as the style – there’s a difference between style andarchitectural elements. These standards call for architectural elements.It talks about what should happen on the low, what should happen inthe middle, what should happen on the upper. It talks about what theyrecommend, what is discouraged. It does not prohibit. But style iscertainly not one that these regulations regulate. And I just wanted tomake that distinction.

(App. 24, at p. 98). Architecturally, the Project is continuous in design and

Respondents presented competent substantial evidence to establish such continuity.

Each of the demonstrative diagrams presented to the Commission showed that all

four walls of the Project contain the same architectural elements and features. See

(R.App. C1, at A02-00, A02-01, A02-02, A02-03, A02-04). Even the South

Elevation, which is an interior, zero-lot wall that Design Standard 2.4 does not

apply to, has a textured scoring to keep in continuity with the other walls and their

architectural features.See

(R.App. B, at p. 21).

Accordingly, although the issue presented here was not presented either to

the Board (in its de novo review of the Planning Director’s decision to issue the

Permit) or to the Commission (in its de novo review of the Board’s denial of the

appeal and approval of the Permit), there is competent substantial evidence in the

record establishing the Project’s compliance with the Design Standard’s

requirements for continuity in design. Thus, there is no basis to disturb the

Commission’s decision on certiorari review.

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B. 65% Pedestrian Access along North Miami Avenue


the issue below

As noted above, this argument is improperly briefed for the first time to this

Court. This issue was not raised by Petitioners in the appeal to the Board, nor was

the issue briefed to the Commission. Petitioners, without prior notice—deviating

from the arguments presented in their written appellate submission—and over

Wal-Mart’s objection, did (for the first time) present argument on this issue at the

Commission hearing, and proffered testimony of an expert with no relevant

qualifications and retained only a few days before the hearing. However, by that

time the issue had already been waived by Petitioners’ failure to present it to the

Board. Having failed to preserve this issue for review, this issue has been waived.

Ibid at 17-19.

SeeM

IAMI

21, Art. 7, § 7.1.2.4;Sunset Harbor

, 914 So. 2d at 928;

Kemp, 955 So. 2d at 637; Reznik , 15 So. 3d at 849.

2. Notwithstanding, Respondents presented ample

competent substantial evidence establishing the

Project’s compliance with the Code’s requirement for

pedestrian access along North Miami Avenue.

Although Petitioners point to the testimony of their purported expert before

the Commission on the issue, this contrary evidence is not within the scope of this

Court’s review of an administrative decision. Dusseau, 794 So. 2d 1270 (Fla.

2001). Simply put, the issue is not whether Petitioners disagree or presented

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evidence to the contrary, but whether there is competent substantial evidence in the

record to support the Commission’s decision. The evidence supports the

Commission’s decision that the applicable pedestrian access requirements were

satisfied by the Project under the third prong of the Valliant standard.

Section 627.2 delineates standards for pedestrian access to buildings

abutting primary streets, including North Miami Avenue.15 The Code requires that:

1. A minimum of sixty-five (65) percent of the linear frontage of anylot abutting a “primary” street . . . shall contain ground floor space

designed to accommodate retail and other uses that promote pedestrian traffic. The design of such space shall meet the standardslisted below. . . .

(a) All ground level space designed for pedestrian oriented uses shallhave external entrances directly accessible from public sidewalkspace. At least one (1) external entrance shall be located along the

frontage of the primary street or on the corner intersection of the

primary street and any other street or the frontage of public open

space. Additionally, each building use, such as a retail store with a

cafe or restaurant, shall have separate entrances. All such entrancesshall be transparent.

(b) For the first ten (10) feet of height above the public sidewalkelevation, the exterior building wall shall contain windows and/ordoorways of transparent glass covering at least fifty (50) percent oflinear frontage (to be calculated at a height over 30 inches) of each building; plazas and openings into pedestrian entrances and spacesshall count towards the 50% transparency requirement specified inthis section. . . .

§627.2.12 SD 27.2 (emphasis added).

15 North Miami Avenue is designated as a primary street in Section 627.2.8.

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Thus, under the Code, a minimum of 65% of the Wal-Mart frontage on

North Miami Avenue was required to be designed in such a way as to promote

pedestrian traffic and 50% of the linear frontage was required to be transparent.

Diagram A01-01B shows 450 square feet of total frontage on North Miami

Avenue. Pursuant to the pedestrian access requirement, 292.6 square feet (65% of

the total 450 square feet) were required to promote pedestrian traffic. On the

diagram, the areas that promote pedestrian traffic are indicated in orange and

amount to 299 square feet, which meets and exceeds the Code’s requirements.

Expert Ana Gelabert, former City of Miami Planning Director, testified that

the Project satisfied these requirements, noting that, “[o]n the North Miami side, on

ground floor uses where 65% is required, it’s -- that would be 292 feet, they’re

providing 299 feet.” Likewise, for the 50% transparency requirement, she testified

that the Project provides 260 square feet of transparency, where only 226 square

feet is required. She assured that the Project plans “not only meet the requirement,

they exceed the requirement.” (App. 24, at pp. 101-02).

On cross-examination, Gelabert expounded upon this testimony, pointing

out that not only are there two doors which will facilitate pedestrian access, but

there is also a combination of other factors that promote pedestrian traffic on the

North Miami Avenue frontage. “It’s a combination of doors. It’s a combination of

transparency. It’s a combination of what types of activities are behind the wall.” Id.

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at 132-33. She further explained that the Project has activated retail space and,

under the Code, display windows are relevant to the analysis of whether a

proposed project promotes pedestrian traffic. Id. at 134.

In sum, even if the issue had been preserved for review (and it was not), the

Commission adhered to the essential requirements of the law in issuing its

decision, supported by ample competent substantial evidence in the record, that the

Project met the Code requirements.

C.

Second Level Parking Garage Liner Uses and Setback

The Code contains specific requirements for the concealment of parking

garage structures. The record shows that the Commission’s finding that the Project

was in compliance with the Code was supported by ample competent, substantial

evidence demonstrating that Project not only satisfies these requirements, but

exceeds them. Section 627.2.12 states, in relevant part:

Surface parking and parking structures shall conform to the followingstandards:

***2. Blank, unarticulated walls shall not be permitted for parking garage

facades that are not lined with uses. Such facades shall havearchitectural treatments designed to be compatible with adjacent

buildings. Ramps, stairwells and any other portion of a garage should

be buffered with the use of decorative grilles and screens,landscaping, and other varied materials.

3. As provided in Section 627.2.7, liner uses are generally requiredon parking garages that front primary streets. When required, groundlevel parking facilities must be lined with active uses. Upper level parking facilities that do not incorporate liner uses shall be setback no

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less than 85’ and shall not exceed a height of 50’. All otherrequirements provided herein shall apply.

(Emphasis added.)

The Design Standards define the term “liner uses” as “[s]torefronts and

building fronts that conceal a larger use from view such as a parking garage.”

Section 627, in substantially similar terms, states that liner uses are “[b]uilding

uses that serve to conceal uses such as parking garages and service areas.”

Expert Anna Gelabert further explained that the Code “makes a clear

differentiation between active uses and liner uses. And when it talks about active

uses, it talks about ground level and it talks about a percentage. They meet it. On

the ground level, they meet it. On the second level, they do have a liner use. They

do have a building front that conceals a larger use from view. They do that.” (App.

24, at pp. 99-100).

Petitioners claim that the second floor parking structure fails to comply with

applicable Code. However, the plans approved by the Planning Director confirm

Ms. Gelabert’s testimony that the Project is indeed compliant with the Code. (App.

23, at p. 27). The Project as designed shows a solid, continuous perimeter around

the second level parking facilities, most of which is lined with retail support uses—

a post-UDRB revision which surpasses the requirements of the Code. Id. at 26-27.

The building front plainly conceals the larger use and, thus, meets the definition of

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a liner use. Because the second floor is designed with a continuous liner use, the

parking facilities are not required to be set back 85 feet.

Petitioners also claim that the garage facility should be buffered by an 85-

foot setback. They do so by quoting a misleading, fragmented selection of the

Code, that is Section 627.2.12, as stating that, “Ramps, stairwells and any other

portion of a garage should be buffered.” (Pet. at 35). However, by stripping this

phrase from its context, Petitioners rob it of its genuine meaning. In its entirety,

Section 627.2.12 reads, “Ramps, stairwells and any other portion of a garage

should be buffered with the use of decorative grilles and screens, landscaping, and

other varied materials.” (Emphasis added.) Evidently, Petitioners omit this

language because, rather than strengthen their argument regarding the need for a

setback, it reveals a fatal flaw. As Ms. Gelabert testified, the entire perimeter of the

second floor is surrounded by a continuous, decorative building front that conceals

a larger use from view—the precise definition of a “liner use”; because the

structure has a liner use, the parking facilities are not required by the Code to be set

back. (App. 23, at p. 26-27).

Moreover, the parking spaces along the North Miami Avenue façade where

areas are set back 85 feet. Ms. Gelabert testified at the Commission hearing that,

for purposes of the setback, it has always been the interpretation of the City that

the intent of the Code is for the parking spaces themselves to be set back 85 feet

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(App. 24, at p. 104). She further explained that the intent behind the setback

provision is to avoid a parking structure “with the cars kind of overlooking with

their noses out, and rather facilitate designs for parking “actually within” the

structure. Id. Upon cross-examination, she reiterated that “the issue here is, are the

parking spaces exposed? And, no, they’re not.” Id. at 127.

Additionally, the City Project Manager testified at the Board hearing that,

when determining compliance with the 85 foot setback requirement, the crucial

consideration is whether the parking itself is setback. Specifically, in attesting that

the design complied with the setback requirement, he stated, “[i]f you notice the

parking -- and there’s actually a line drawn on the plan. There’s an 85-foot line that

there’s no parking on either side of that from the building facade. . . . Because all

of the parking spots are positioned behind the 85 foot line, they meet the setback

requirements.” (App. 25, at p. 118).

Thus, the competent substantial evidence in the record supports the

conclusion that the Project complies with the plain language of the Section 627 due

to the decorative building front comprising a continuous perimeter, which conceals

a larger use. Alternatively, even if the liner use was considered to be insufficient,

the competent substantial evidence supports the conclusion that the Project also

complies with the City’s interpretation of the setback requirements by setting the

parking spaces back 85 feet within the structure. Accordingly, the Commission

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acted in compliance with the essential requirements of the law in denying the

appeal and affirming the Board’s decision.

D. Loading Berths

Finally, Petitioners argue that the Commission departed from the essential

requirements of the law by accepting the City’s interpretation of the loading berth

requirements for the Project set forth in Section 627.2.15. However, the

Commission adhered with the essential requirements of the law, where it

appropriately deferred to the City’s expertise and interpretation of the ambiguous

provision and its application to the Project.

Section 627.2.15 states, “The off-street loading requirements shall be as

follows: 2. For non-residential uses: . . . For non-residential floor area up to two

hundred fifty thousand (250,000) square feet, three (3) berths total.” The Project

includes five (5) loading berths. See (R.App. C1, at A01-02A; R.App. C2, at Sheet

No. 6050; R.App. B, at p. 74). Petitioner argues that the plain meaning of the word

“total” means that three berths is the maximum amount of berths permitted by

Section 627.2.15, and, as such, the rules of statutory interpretation and construction

are unnecessary and unwarranted. However, Petitioner’s analysis misses the point

and ignores the crux of ambiguity, which arises out of the application of the word

“requirement” to the phrase “three (3) berths total,” in its context. The ample and

unequivocal testimony of both the current Planning Director and the City’s former

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Planning Director (Ms. Gelabert) was that the City of Miami has always

interpreted this provision as a “requirement,” and therefore, to mean that each

project must have a minimum of three loading berths in order to be in compliance

with the Code. At the hearing before the Board, the Planning Director explained,

I understand the back and forth to have been about the word required and whether in a code, when the word required is used , and in thiscase it says required three loading berths, whether that is interpreted tomean only three and no less than three shall be put in place or does itmean required means a minimum to be provided that can be exceeded.

And I’m here to tell you, unequivocally, that three loading berths are

required. It establishes a minimum, not a maximum. Whenever in thecode we want there to be a maximum, we say no more than or

maximum of. Required is a minimum, not a maximum.

(App. 15, at pp. 151-52). He further expanded on the City’s consistent application

of this interpretation, stating:

And so language and words are often an imperfect way to

communicate intent, but I can tell you is that when that doubt arises,let’s say you read total, and I’m left with the quandary, is that

minimum, is that maximum, is that all there will be.What I can tell you is that I look at two things as guidance. One, howhas it been interpreted and applied before. And I should be consistentwith that, so as not to treat them differently than anyone else. It’s anissue of fairness and equity. And I can tell you factually that in the past two [years] consistently, no exception, total has been applied andinterpreted as minimum. That is true in this case, that is true elsewherein the code.

Id. at 197-98. Furthermore, at that hearing, the City Project Manager explained,

A, a berth minimum to be 12 by 55 feet by 15, by15 feet in height. So,B, for nonresidential floor area of -- let me skip -- this project is between 100,000 and 250,000 square feet. So, D, for nonresidential

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floor area up to 250,000 square feet, 3 berths total. So they have to provide at least three berths.

Id. at 152 (emphasis added). Both the Planning Director and the City Project

Manager are experts in Code interpretation. This interpretation was further

bolstered at the Commission hearing by Ana Gelabert, former City of Miami

Planning Director, attesting as follows:

MS. GELABERT: That it has always been interpreted that it’s aminimum, so they meet it. The minimum would be three, but they can put four. They can put four. Usually -- and this has always has been

interpreted. That’s why the code would ask for minimum safeguard tomake sure the letter of the law is met. Now, if someone wants to putmore, it has never been – if it would be something that the Citywouldn’t have want, it would have said maximums. It does not saythat. And when I was reviewing it, every time the projects had theloading inside, that’s something you wanted. You did not want it onthe street. You actually wanted it inside. So if it’s something that canfacilitate the business, but is not really conducted outside, it wassomething that the City would also -- the Planning Department would

see favorably.

MR. LYDECKER: The -- did you consider what the -- did you havean opportunity to contact some of the surrounding areas, such as CoralGables and Miami Beach, and see if they have similar code provisionsthat they interpret in similar ways as the City of Miami Planning'sDepartment is?

MS. GELABERT: They do. The municipalities will be looking at it asalways as a minimum as well.

(App. 24, at pp. 108-09). Ms. Gelabert unequivocally attested this interpretation is

consistent with the intent of the Code and the way other municipalities have

structured their codes for loading berth requirements.

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As evident from the explanations presented to the Board and the

Commission, the requirement is, in fact, ambiguous. See, e.g., (App. 15, at p. 197)

(“I think that interpretation probably can go either way, in my opinion, because it

says -- it doesn’t say maximum or minimum, but it just says total.”).

To the extent the text of the Code is ambiguous, the intent behind the

provision controls any ambiguity, and deference must be given to the City’s

interpretation if that interpretation is not contrary to the expressed terms of the

ordinance. See City of Hialeah Gardens v. Miami–Dade Charter Found., Inc., 857

So. 2d 202, 206 (Fla. 3d DCA 2003) (requiring deference to the city’s superior

technical expertise and special vantage point in such matters); see also Donovan v.

Okaloosa County, 82 So. 3d 801, 807 (Fla. 2012) (stating that the governing

body’s interpretation of its own ordinance is entitled to deference); Verizon Fla.,

Inc. v. Jacobs, 810 So. 2d 906, 908 (Fla. 2002) (stating that deference is owed to a

governmental body’s interpretation of a statute or rule unless the agency’s

expertise is not required or its interpretation conflicts with the plain and ordinary

meaning of the provision).

Consistent with this well-established jurisprudence, the Planning Director’s

interpretation of Section 627.2.15 as requiring a minimum of three berths is owed

deference. There was ample substantial competent evidence to support this

interpretation and application of the loading berths provision. The Planning

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Director, the City Project Manager, and expert (and former City of Miami Planning

Director) Ana Gelabert, all testified as to the City’s consistent interpreting and

application of the provision to require a minimum of three loading berths.

The intent behind this particular section of the code is to regulate traffic;

specifically, to allow the maneuvering of trucks within the public right of way for

the purposes of off-street loading and avoid these trucks from backing up traffic.

To that end, it seeks to ensure a sufficient minimum number of berths are in place.

Accordingly, the intent behind the loading berth provision is made clear by the

requirements set forth by neighboring cities and the City’s consistent interpretation

of its own loading berth requirement is in accordance with that intent.

Moreover, other similarly sized projects in the Midtown District have been

granted Class II Special Permits in accordance with the minimum of three loading

berths requirement, and the Planning Director attested to this at the Board hearing:

BOARD MEMBER BARNES: And in regards to the berths, you justconfirmed earlier as well that -- because Target I believe the numberwas 11 that we saw in their presentation, and I can’t recall exactly, butit might have been 11 that Target currently has. So they’re still -- the proposal of four would still be in compliance. They're within the code.

DIRECTOR GARCIA: That is correct, they are complying with the

minimum. They are exceeding the minimum. There is no maximum.We think four is a prudent number.

(App. 15, at p. 196). In his testimony, the Planning Director

2DP3006 Wal Mart's Response

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