WARREN PERRY

v.

CITY OF MIAMI

Before: TRAWICK, WALSH, and SANTOVENIA, JJ.

PER CURIAM

Petitioner, Warren Perry ("Mr. Perry"), seeks to quash decisions of the City of Miami Commission denying his intervention and approving an Application for the Magic City Innovation District Special Area Plan (the "MCID SAP").

BACKGROUND

On January 12, 2018, MCD Miami, LLC, and others ("Magic City"), filed a Special Area Plan Application (the "Application") with the City of Miami (the "City") for the development of the MCID SAP, a multi-use innovation district within the City's Little Haiti neighborhood.¹ The Application covered approximately 17.75 acres of land lying between N.E. 60th and 64th Streets and between N.E. 2nd Avenue and the Florida East Coast Railway corridor east of N.E. 4th Avenue. Most of the parcels in the MCID SAP consist of one-and two-story warehouses and were in transect zone D-1 (light industrial), which allowed heights up to ten stories. Some of the affected land currently consists of vacant lots, including the vacant Magic City trailer park site. The remainder of the site was in transect zone T5-O (medium 1 Magic City consists of twenty-seven individual entities that own the parcels of land that are the subject of the MCID SAP. Magic City filed a Motion to Intervene as a party respondent, which was granted on August 28, 2019. ==End of OCR for page 2== ==Start of OCR for page 3== density mixed use), which allowed up to five stories height (or six stories if abutting a D-1 district). Mr. Perry resides in an apartment building across a multiple lane median street north of a campus zone of the MCID SAP, where the underlying zoning is not changing. The Application proposed rezoning thirty of the thirty-seven parcels currently in transect zones T5-O and D-1 to new SAP designations MCID-1 and MCID-2, which respectively would allow heights of 20 and 25 stories. The Application proposed approximately 8,164,140 square feet of development consisting of approximately 2,630 residential units and 432 hotel rooms (201,600 square feet), 2,208,540 square feet of office space, 520,970 square feet of commercial development, 119,610 square feet of exposition space, 6,081 parking spaces, 215,403 square feet of civic space and an additional 370,000 square feet for surplus parking.

PUBLIC HEARINGS

After numerous public outreach meetings, the Application for the MCID SAP was first heard at a public hearing of the Planning Zoning and Appeals Board ("PZAB") on July 18, 2018. After considering the testimony of several experts, as well as comments from the public and the City Staff's Analysis, the PZAB recommended approval pursuant to Article 3 and Article 7 of Miami 21 with ==End of OCR for page 3== ==Start of OCR for page 4== conditions.² Counsel for Family Action Network Movement ("FANM") appeared and objected to the MCID SAP. Mr. Perry did not appear at this hearing. On November 15, 2018, the MCID SAP application came before the City Commission on First Reading. Guy Laliberte, a Magic City principal and founder of Cirque du Soleil, appeared and presented his vision of the MCID SAP. Mr. Bernardo Fort-Brescia, the MCID SAP's architect and lead designer, provided a detailed description of the site, the surrounding area, and the MCID SAP. The Commission heard from more than 50 members of the public. Counsel for FANM appeared and introduced a written request for intervenor status, spoke about community concerns, and introduced a written statement of objections on behalf of FANM. Upon request by FANM's counsel, the Commission deferred its request for intervenor status and continued the hearing. Again, Mr. Perry did not appear. At a third public hearing on February 28, 2019, the Commission heard the continuation of the First Reading and FANM's request for intervenor status. Approximately 40 members of the public spoke at the hearing. FANM was permitted to present testimony of its architect who spoke against the SAP. The request was yet again continued to allow FANM more time to gather evidence. Mr. Perry again did not appear. 2 The Planning Department later prepared its October 25, 2018 memorandum which addressed corrections to the previously identified inconsistencies. ==End of OCR for page 4== ==Start of OCR for page 5== During a fourth March 28, 2019 public hearing of the Commission regarding the MCID SAP application, Mr. Perry appeared for the first time pro se as a member of the general public. He objected to the MCID SAP by expressing his general concerns over the lack of low-income housing, mischaracterization of the surrounding neighborhood and what he alleged to be the insufficiency of a $31 million contribution to a trust that was to be created to address the community's needs. He instead demanded a $100 million contribution to this trust, which was to be named the Little Haiti Community Revitalization Trust. The Commission refused to further defer FANM's request for intervention and denied its request. The MCID SAP application came before the Commission again on June 27, 2019 for Second Reading. FANM submitted an Intervenor Status Request, which for the first time specifically included Mr. Perry. The Commission denied the renewed request by FANM to intervene but allowed argument on behalf of Mr. Perry. FANM was permitted to introduce an amended Statement of Evidence and Objections into the record. Experts also testified on behalf of FANM, including a real estate appraiser and architect. Mr. Perry's request to intervene was ultimately denied. However, he again spoke as a member of the public and again mentioned the community's need for housing, employment and training. He raised his demand for a contribution from Magic City to address these concerns to $200 million. Despite ==End of OCR for page 5== ==Start of OCR for page 6== Mr. Perry's protestations, the Commission did not allow him to intervene and unanimously approved the MCID SAP. This Petition followed. Certiorari review of the City's approval of the MCID SAP and the denial of intervention by Mr. Perry requires a determination as to whether: (1) procedural due process was accorded, (2) the essential requirements of the law were observed; and, (3) the administrative findings and judgment were supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). Procedural Due Process "Generally, due process requirements are met in a quasi-judicial proceeding 'if the parties are provided notice of the hearing and an opportunity to be heard.'" A & S Entertainment, LLC v. Florida Department of Revenue, 282 So. 3d 905, 909 (Fla. 3d DCA 2019) (citations omitted). "The proceeding must be 'essentially fair.'" Id. (citation omitted). As a member of the general public, Mr. Perry had the opportunity to attend numerous public hearings. He attended the March 28, 2019 and June 27, 2019 Commission hearings and spoke regarding general community needs and the purported insufficiency of Magic City's contribution to the Little Haiti Community Revitalization Trust. "The extent of procedural due process protection varies with the character of the interest and the nature of the proceeding involved." Carillon v. Seminole County, ==End of OCR for page 6== ==Start of OCR for page 7== 45 So. 2d 7, 9-10 (Fla. 5th DCA 2010). "In quasi-judicial zoning proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts." Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991) (emphasis added). "In assessing a claim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation, there can be no denial of due process." Economic Development Corp. of Dade County, Inc. v. Stierheim, 782 F. 2d 952, 954- 55 (11th Cir. 1986). Mr. Perry failed to establish that he was deprived of a constitutionally protected liberty or property interest. Miami 21 (the "Code") section 7.1.4.3.d. defines an Intervenor as "a person whose interests in the proceeding are adversely affected in a manner greater than those of the general public." Pursuant to Code section 7.1.4.3.g, a qualified Intervenor is a "Party." Under Code section 7.1.4.4.a., each "Party" has "the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any relevant matter (subject to the rules contained herein), and to rebut evidence." The burden is typically on the person seeking intervention to carry the burden of presenting sufficient criteria to establish his qualifications as an aggrieved party, rather than a "mere intermeddler in the administrative process." Recovery Racing, LLC v. State Dept. of Highway Safety and Motor Vehicles, 192 So. 3d 665 ==End of OCR for page 7== ==Start of OCR for page 8== Fn 1 (Fla. 4th DCA 2016) (citations omitted); see also Bd. of Cnty. Comm'rs v. Wood, 662 So. 2d 417, 418 (Fla. 3d DCA 1995). Mr. Perry's request for intervention relied upon an amended resubmission of an Intervenor Status Request filed by FANM on its own behalf and that of its individual members. The Intervenor Status Request set forth issues of general concern on behalf of itself and Mr. Perry and attached his affidavit setting forth his concerns. However, Mr. Perry, who was present at two hearings at the tail end of a multi-hearing process spanning a year and a half, never testified regarding the necessary factors to establish his standing. See Renard v. Dade County, 261 So. 2d 832, 837 (Fla. 1972). He only spoke regarding issues of general concern. He did not testify that he was adversely affected in a manner greater than that affecting any other member of the general public. This record conclusively establishes that Mr. Perry was properly accorded procedural due process. Requirements of the Law On June 27, 2019, the same date as the second reading before the City Commission, FANM, on behalf of itself and its members, submitted a "Statement of Objections and Evidence on the Magic City Innovation District Special Area Plan Application" (the "Statement of Objections"). The Statement of Objections includes the objection that the MCID failed to comply with Code section 7.1.2.8.b.2. a ==End of OCR for page 8== ==Start of OCR for page 9== failure to include photos of building elevations on both sides of the street extending three hundred feet beyond the project's boundaries. Code section 7.1.2.8(c)(2)(g), sets forth the minimum information that must be included in a rezoning application. It requires: (g) An analysis of the properties within a one-half mile radius of the subject property regarding the existing condition of the radius properties and the current zoning and Future Land Use designations of the radius properties. The analysis shall include photos of Building elevations of both sides of the street extending three hundred (300) feet beyond all boundaries of the site. An aerial photo of the site and the radius properties shall be included. The analysis shall explain why the zoning change is appropriate and why the existing zoning is inappropriate, in light of the intent of the Miami 21 Code and particularly in relation to effects on adjoining properties. Arguably, Mr. Perry failed to preserve his claim in his petition – that the analysis did not contain sufficient photographic evidence. Nor did he set forth any prejudice to him resulting from the alleged insufficiency. However, there is no requirement that the photographs be taken at street level. Moreover, zoning ordinances require substantial compliance. See State ex rel. Tampa, Fla., Co. of Jehovah's Witnesses, North Unit v. City of Tampa, 48 So. 2d 78, 80 (Fla. 1950); Florida Tallow Corp. v. Bryan, 237 So. 2d 308 (Fla. 4th DCA 1970); Bubb v. Barber, 295 So. 2d 701, 703 (Fla. 2d DCA 1974). We find that the record is replete with both aerial and street level photographic evidence depicting building elevations, including those in the Application and in the Concept Book in Exhibit "D" captioned "Aerial Photos, Site Photos, and Photos of Surrounding Area and Building Elevations." This ==End of OCR for page 9== ==Start of OCR for page 10== photographic evidence, in conjunction with record evidence of the surrounding transect zones, testimony and descriptions of the surrounding properties, substantially complies with Code section 7.1.2.8(c)(2)(g). The Statement of Objections also contended that the Application was inconsistent with the Miami Comprehensive Neighborhood Plan and Miami 21, and further, the MCID SAP failed to comply with Code section 3.9.1(h)(10) because its scale was out of character with the neighborhood and had inappropriate transitions and buffers. Miami 21 has a worthy and laudable conservation goal of preserving neighborhoods and "establishing a rational process for successful growth in areas identified for density and growth." However, this goal must be considered in conjunction with required developmental goals such as Code section 2.1.2.b, "Rebuilding the City's commercial corridors to function as Mixed-Use, transitoriented, walkable centers for adjacent Residential Neighborhoods." The City's planning staff found that the MCID SAP was "consistent with the intent of Miami 21, the Miami Comprehensive Plan, and other relevant City regulations" and recommended approval of the MCID SAP. The Commission was entitled to rely on the recommendation of its planning staff. See Metro. Dade Cty v. Fuller, 515 So. 2d 1312, 1314 (Fla. 3d DCA 1987). ==End of OCR for page 10== ==Start of OCR for page 11== As to Appellant's argument that the MCID SAP did not comply with Code section 3.9.1(h)(10), the record adequately rebuts Appellant's concern. The MCID SAP is located on land that is either vacant or occupied by one and two-story warehouses. The Planning Director testified that maintaining the character of the neighborhood was neither feasible nor a reality because there was essentially no demand for the type of light industrial development permitted under the existing zoning Code. Further, there is record evidence that the transitions and buffers proposed in the Application were consistent with the Code. The Comprehensive Plan Amendment Staff Analysis (the "Analysis") provides a detailed analysis of the MCID SAP. Included in this analysis are discussions of numerous issues including concurrency, income levels and employment in the area. Finally, the Letters of Intent provided a detailed analysis of the reason and need for the MCID SAP and requested zoning changes. On this extensive record, we find that the essential requirements of law were observed. Competent Substantial Evidence Competent substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028, 1031 (Fla. 1980). Code section 7.1.4.3.b. defines "competent substantial evidence" as: testimony or other evidence based on personal observation, or fact or opinion evidence offered by an expert on a matter that requires ==End of OCR for page 11== ==Start of OCR for page 12== specialized knowledge and that is relevant to the issue to be decided. Competent substantial evidence is evidence a reasonable mind could accept as adequate to support a conclusion. See also Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028, 1031 (Fla. 1980). The competent substantial evidence in support of the MCID SAP included: the MCID SAP Concept Book together with its photographs; schematics and technical drawings; the MCID SAP Application; the Letters of Intent; the Development Agreement; Amended Development Agreement and Regulating Plan; traffic analysis by professional traffic engineers; traffic analysis prepared by the City's own traffic consultant; an Economic Impact Analysis; a multi-unit utility capacity analysis; a school concurrency analysis; aerial photos; site photos; photos of surrounding areas and building elevations; Planning and Zoning Staff Analysis; and Expert Reports and Concurrency Analysis. Additionally, numerous experts testified regarding direct economic benefits from the SAP as well as the indirect benefits to the surrounding neighborhood, including the creation of 12,000 jobs, $42 million in permanent impact fees, $188 million in annual local expenditure, and $27 million in annual ad-valorem property ==End of OCR for page 12== ==Start of OCR for page 13== taxes. A real estate economist, MCID SAP's architect, lead designer and traffic engineer all testified on behalf of the MCID SAP. Prior to and after Mr. Perry's request for intervenor status, the Commission considered evidence presented by FANM against approval of the MCID SAP, including written statements of objections, expert reports, photographs, graphics, a slide presentation, expert testimony and public comment. However, we are not permitted to reweigh the evidence or substitute our judgment for that of the Commission. Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla.1995). If the record contains competent substantial evidence to support the Commission's decisions, the decisions are presumed lawful and the court's job is ended. Dusseau v. Metropolitan Dade County Bd. of County Com'rs, 794 So. 2d 1270, 1275-76 (Fla. 2001). We thus find that the Commission's decisions were supported by competent substantial evidence. Intervention As discussed above, Mr. Perry failed to meet his burden of proof in establishing that he was entitled to intervene in this matter. Additionally, there are two other reasons why the Commission's denial of the motion to intervene was appropriate - the filing of the motion at such a late point in the proceedings as well 3 We also note that there was also ample consideration of the $31 million benefits contribution at each of the Commission hearings and sufficient notice of technical adjustments to the acceleration of the payments in the Development Agreement. ==End of OCR for page 13== ==Start of OCR for page 14== as the use of Mr. Perry as a substitute by FANM to circumvent the prior denial of their own motion to intervene. While proceedings before the Commission are not subject to the Florida Rules of Civil Procedure, the Author's Notes to Florida Rule of Civil Procedure 1.230 provide persuasive guidance. The Notes state that a court in its discretion may consider the timing of an application as well as other factors. See also Hatcher v. Roberts, 478 So. 2d 1083, 1086 (Fla. 1st DCA 1985), review denied, 488 So. 2d 68 (Fla. 1986) (motion to intervene untimely when filed one day before final arguments on summary judgment motion); Zenith Insurance Company v. Metrobank S.A., 215 So. 3d 135, 136 (Fla. 3d DCA 2017) (not abuse of discretion denying a motion to intervene "filed only hours before the hearing" on plaintiff's motion for summary judgment in a foreclosure action). Despite having attended multiple prior hearings, Mr. Perry first requested intervention at the final Commission hearing 18 months after the filing of the Application. In the course of this extensive process, the Applicants went through the time and expense of numerous outreach programs, a PZAB hearing and four Commission hearings. Mr. Perry could have requested intervenor status at any of the prior hearings. He did not. The tardiness of Mr. Perry's motion was an appropriate consideration by the Commission in denying his request to intervene. ==End of OCR for page 14== ==Start of OCR for page 15== Moreover, we take note of the fact that FANM's latest written request for intervention was filed by FANM on behalf of FANM and FANM's members. The request presented claims that had already been heard and denied by the Commission. FANM was given numerous opportunities based upon similar arguments to bolster its request for intervention. Mr. Perry had been a member of FANM for a year. Nevertheless, the final Commission hearing was the first time FANM's counsel made a request to intervene on behalf of Mr. Perry. Mr. Perry's prior presentations of his general concerns conflict with those made by FANM on his behalf. This effort appears to be nothing less than an attempt to obtain de facto substitute intervenor status for FANM. Finally, as noted earlier, when given the chance to do so, Mr. Perry failed to present facts to the Commission that would have established that he was adversely affected in a manner greater than that affecting other members of the general public. Given this fact and the other reasons discussed above, the Commission was well within its discretion in denying his request to intervene. For all of the reasons discussed herein, the Petition for Writ of Certiorari is hereby DENIED. TRAWICK, WALSH and SANTOVENIA, J.J. concur. ==End of OCR for page 15==