THE CRICKET CLUB

v.

MIAMI DADE COUNTY

WALSH, J.

The Jockey Club, a gated development east of Biscayne Boulevard and Northeast 111th Street, was developed and built over 53 years ago as a condominium, restaurant, marina, pro-shop and club. Petitioners, neighbors who reside both in the existing Jockey Club and its adjacent property, the Cricket Club ("Cricket Club"), object to Miami-Dade County resolutions approving non-use and use variances granted to Respondent Apeiron Miami, LLC (Developer) to develop property located within the Jockey Club.

Over the last 20 years, the Jockey Club has degraded from a formerly vibrant community club, marina and condominium to a dilapidated, run-down facility and an unusable marina. The County Planning Division described the Jockey Club as a "dead spot' off limits to the neighboring" community. Because of the difficulties inherent in abiding by a patchwork of varied zoning designations, past attempts to develop the property failed. To circumvent these difficulties, the Developer applied to the County and obtained non-use and use variances to build a 120-unit residential property and a 90-room hotel within four varied-height buildings, a separate parking garage and signage. [*3] Petitioners make three arguments to quash these variances. First, they complain that the zoning board improperly granted non-use variances. Second, they complain that that their vested rights as neighbors to the development would be infringed. Finally, they argue that no competent substantial evidence in the record supported the decision to grant a use variance to build a parking garage.

At oral argument, the Petitioners abandoned their challenges to the nonuse variances and their vested rights arguments. In view of these concessions and after reviewing the evidence presented below, we conclude that the decisions by the Community Zoning Appeals Board, the Development Impact Committee, and the County Commission below approving the non-use variances and overruling the assertion of vested rights were supported by substantial, competent evidence. We therefore deny the petition on those grounds. However, we agree that there was no competent substantial evidence to support the County's approval of the use variance granted to build a parking garage on residential-zoned land.

Municipal approval of a use variance is quasi-judicial and subject to certiorari review. Park of Commerce Assoc. v. Delray Beach, 636 So. 2d 12, 15 (Fla. 1994); Skraggs v. Key West, 312 So. 2d 549, 551-552 (Fla. 3d DCA 1975); Broward County v. G. B. V. International, Ltd., 787 So. 2d 838, 843 (Fla. 2001). [*4] We apply a three-part standard of review: (1) whether procedural due process was afforded; (2) whether the essential requirements of law have been observed; and (3) whether the findings and judgment are supported by competent substantial evidence. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla. 1995); Board of County Comm'rs of Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993); City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

The Petitioners argue that the decision to grant a use variance was not supported by competent, substantial evidence. Our review on this issue is limited. We do not reweigh evidence, but rather determine whether there was competent substantial evidence to support the decision of the lower tribunal:

The court must review the record to assess the evidentiary support for the agency's decision. Evidence contrary to the agency's decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the "pros and cons" of conflicting evidence. While contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. As long as the record contains competent substantial evidence to support the agency's decision, the decision is presumed lawful and the court's job is ended.

Dusseau v. Metro. Dade County Bd. of County Com'rs, 794 So. 2d 1270, 1276 (Fla. 2001); see also Norwood-Norland Homeowners' Ass'n, Inc. v. Dade County, 511 So. 2d 1009, 1012 (Fla. 3d DCA 1987) ("Reviewing courts are not [*5] empowered to act as super zoning boards, substituting their judgment for that of the legislative and administrative bodies exercising legitimate objectives.").

Section 33-311(A)(4)(a) of the Miami-Dade County Code sets forth the requirements to obtain a use variance:

Use variances from other than airport regulations. Upon appeal or direct application in specific cases to hear and grant applications for use variances from the terms of the zoning regulations as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions thereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done; provided, that the use variance will be in harmony with the general purpose and intent of the regulation, and that the same is the minimum use variance that will permit the reasonable use of the premises; and further provided, no variance from any airport zoning regulation shall be granted under this subsection; provided, however, no use variance shall be granted permitting a BU or IU use in any residential, AU or GU District, unless the premises immediately abuts a BU or IU District. A "use variance" is a variance which permits a use of land other than which is prescribed by the zoning regulations and shall include a change in permitted density. (emphasis added) The County granted this use variance in a residential zone (RU-4) to build a parking garage to serve a condominium and hotel. "Florida courts have held that a legal hardship will be found to exist only in those cases where the property is virtually unusable or incapable of yielding a reasonable return when used pursuant to the applicable zoning regulations." Maturo v. City of Coral Gables, 619 So. 2d 455, 456 (Fla. 3d DCA 1993) (emphasis added). See also [*6] Metropolitan Dade County v. Betancourt, 559 So. 2d 1237, 1239 (Fla. 3d DCA 1990) ("Where land is zoned for residential use, deprivation of all beneficial use is proved only when it is established by competent evidence that the land cannot be used for any of the purposes permitted in such district"); Bernard v. Town Council of Palm Beach, 569 So. 2d 853 (Fla. 4th DCA 1990) (to justify a use variance, applicant must demonstrate "unique hardship," that "renders it virtually impossible to use the land for the purpose for which it is zoned.") (quoting Town of Indialantic v. Nance, 485 So. 2d 1318, 1320 (Fla. 5th DCA 1986)).

In granting the use variance, the County and Developer relied upon (1) the historical difficulty in developing the Jockey Club property given the patchwork of zoning designations, (2) Apeiron's mock-up presentation of a much larger development it could build if its requested variances were not adopted, and (3) the Planning Division staff analysis.²

N² The staff analysis is contained at Appendix Tab F to the Petition for Writ of Certiorari. [*7] Additionally, nothing in the planning staff analysis supports the conclusion that the property would be unusable or incapable of a reasonable return without the use variance. There was no evidence at all demonstrating the financial constraints of the property as presently zoned. Instead, staff acknowledged difficulties in developing on the site and the odd location of the BU-2 portion, not suitable for placement of the garage. Staff further opined that rezoning the entire property to build the garage would be inconsistent with the rest of the property, and ultimately decided, "a hotel and residential uses are the only viable opportunity to develop the site."

In the absence of competent substantial evidence of legal hardship to justify an agency's approval of a use variance, a circuit court is compelled to quash the agency decision. In Herrera v. City of Miami, 600 So. 2d 561 (Fla. 3d DCA 1992), the Third District Court of Appeal quashed a use variance granted in the absence of evidence that the land would otherwise be virtually unusable or would not yield a reasonable return without the variance. The Third District has consistently quashed variances granted by municipalities in the absence of this heightened showing. See Fine v. City of Coral Gables, 958 So. 2d 433, 434 (Fla. 3d DCA 2007) (circuit court properly quashed decision to grant a use variance where applicant failed to demonstrate any legally cognizable hardship); Auerbach v. City of Miami, 929 So. 2d 693, 694 (Fla. 3d DCA 2006) (same); [*8] Maturo v. City of Coral Gables, 619 So. 2d 455 (Fla. 3d DCA 1993) (same); Hemisphere Equity Realty Co. v. Key Biscayne Prop. Taxpayers Ass'n, 369 So. 2d 996, 1001 (Fla. 3d DCA 1979) (same). We conclude that the Developer failed to present evidence to establish that without the variance, it was virtually impossible to use the land or that the subject property was unusable or incapable of yielding a reasonable return.

All parties conceded at oral argument that a decision quashing the use variance would not be préclusive – that on remand, the Respondent Apeiron Miami, LLC should be permitted the opportunity to present competent substantial evidence to the Community Zoning Appeals Board demonstrating the required showing of hardship for the requested use variance.³

TRAWICK and REBULL, JJ., concur. N³ The Petitioners as well as the Respondents Apeiron Miami LLC and Miami-Dade County conceded that on remand, Apeiron will not be forced to apply anew and redesign the plans. The County will therefore not force Respondent Apeiron to apply anew and redesign the plans, unless Apeiron is unable to establish legal hardship.

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