EDMUND J ZAHAREWICZ

v.

CITY OF CORAL GABLES

ARECES, J.

Petitioners, Edmund J. Zaharewicz and Cecilia M. Danger (collectively, "Petitioners"), filed a Petition for Writ of Certiorari wherein they contend this Court should quash the City of Coral Gables Commission's resolution designating their home, located at 649 Palmarito Court (hereinafter, the "Property"), a local historic landmark. Petitioners' Petition for Writ of Certiorari is GRANTED.

On a petition for writ of certiorari, this Court must determine (1) whether procedural due process is accorded, (2) whether the essential requirements of the law [*1] have been observed, and (3) whether the administrative findings are supported by competent substantial evidence." Miami Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003). In this case, the City failed to observe the essential requirements of the law and failed to afford Petitioners procedural due process.¹ Section 3-1107(G) of the City's Zoning Code provides that an applicant seeking the demolition of a building and/or structure that has not been previously designated as a local historic landmark must seek the approval of the City's Historic Preservation Officer. City of Coral Gables, Fla., Zoning Code § 3-1107(G) (2019). If the Historic Preservation Officer determines the property at issue is "eligible for designation," the Officer may request review by the Board. Id. The Historic Preservation Officer's eligibility determination is a "preliminary" determination. Id. The final determination is made by the Board at a final hearing, which "shall be within sixty (60) days from the Historic Preservation Officer's preliminary determination of 'eligibility.'" Id. (quotation marks in original). Specifically, Section 3-1107(G) provides, in full, All demolition permits for non-designated buildings and/or structures must be approved by the Historic Preservation Officer or designee. The approval is valid for eighteen (18) months from issuance and shall thereafter expire and the approval is deemed void unless the demolition permitted has been issued by the Development Services Department. The Historic Preservation Officer may require review by the Historic Preservation Board if the building and/or structure to be demolished is eligible for designation as a local historic landmark [*2] or as a contributing building, structure or property within an existing local historic landmark district. This determination of eligibility is preliminary in nature and the final public hearing before the Historic Preservation Board on Local Historic Designation shall be within sixty (60) days from the Historic Preservation Officer determination of "eligibility." Consideration by the Board may be deferred by the mutual agreement by the property owner and the Historic Preservation Officer. The Historic Preservation Officer may require the filing of a written application on the forms prepared by the Department and may request additional background information to assist the Board in its consideration of eligibility. Independent analysis by a consultant selected by the City may be required to assist in the review of the application. All fees associated with the analysis shall be the responsibility of the applicant. The types of reviews that could be conducted may include but are not limited to the following: property appraisals, archeological assessments, and historic assessments.

Id. (emphasis added).

In this case, Petitioners sought a demolition permit that would allow them to demolish their home of approximately thirteen years and build a larger home. Petitioners' plans were approved by the City's Board of Architects and the City's Zoning Department. Pursuant to section 3-1107(G), Petitioners sought the approval of the City's Historic Preservation Officer. Id. Petitioners sought said approval on August 27, 2020. See Appx. at A.010 (“I do not desire or seek any designation. This request is made pursuant to City requirements for a total demolition permit.").

Upon receiving Petitioners' request, the Historic Preservation Officer had two options: (1) determine that the Property was not eligible for historic designation and approve the permit; or (2) make a preliminary determination that the Property was eligible for historic designation and request review by the Board. See City of Coral [*3] Gables, Fla., Zoning Code § 3-1107(G) (the Officer "may require review by the Historic Preservation Board if the building and/or structure to be demolished is eligible for designation") (emphasis added).

On October², 2020, the City's Historic Preservation Officer made her decision. See Appx. At A.026. In a letter addressed to Petitioners, the Officer stated, “The above referenced property has been scheduled for historical significance review by the Historic Preservation Board." Id. The Board was required, pursuant to the Code, to hold a final hearing on the Property's designation within sixty days of October², 2020. See City of Coral Gables, Fla., Zoning Code § 3-1107(G) (the final hearing “shall be within sixty (60) days from the Historic Preservation Officer determination of "eligibility."). The Board, however, failed to hold a final hearing within sixty days of October², 2020. Instead, the Board held the final hearing on December 16, 2020. In so doing, it departed from the "essential requirements of the law." Omnipoint Holdings, Inc., 863 So. 2d at 199.

This is not a complicated issue. Neither side has argued that sec. 3-1107(G) is ambiguous. The City argues, however, that the Historic Preservation Officer did not invoke the procedure set forth in sec. 3-1107(G) and instead placed the Property before the Board for discussion without having made a preliminary determination of eligibility. For example, in the proceedings below, the Assistant City Attorney said to the City Commission that the Property "went before the Board [on October 21, 2020] strictly for discussion, not for designation, not to review criteria, just to basically gauge the appetite of the Board to consider this particular style of home." [*4] Appx. at A. 705. The City has continued to make this argument despite the Historic Preservation Officer's own letters dated October², 2020 and October 26, 2020, wherein the Historic Preservation Officer very clearly scheduled the Property for historical significance review by the Board, and then confirmed that said review had taken place. See Appx. At A.026; see also Appx. at A.153 ("On Wednesday, October 21, 2020, the Historic Preservation Board met to review the historical significance of the [Property].").

The City's argument, in addition to being contradicted by the record, is flawed. Pursuant to the Code, the Property would only be before the Board if the Historic Preservation Officer had made a preliminary determination of eligibility. By arguing otherwise, the City proposes—inadvertently, or not an interpretation of sec. 3- 1107(G) that would conflate the "preliminary" and final determinations of eligibility, and would allow the Historic Preservation Officer to subject a property to historical significance review without a preliminary determination of eligibility. Such an interpretation is contrary to the plain meaning of sec. 3-1107(G).

Moreover, it would nullify the sixty-day deadline if the City could begin designation proceedings, place properties before the Board for review, and request additional reports without ever making a "preliminary determination of eligibility."² [*5] This would subject the homeowner to designation proceedings with no discernible end in sight and render the sixty-day window illusory. For this reason, even if sec. 3- 1107(G) were ambiguous, we would be constrained to reject the interpretation championed by the City. See Sch. Bd. of Palm Beach County v. Survivors Charter Sch., Inc.,³ So. 3d 1220, 1233 (Fla. 2009) ("Basic to our examination of statutes, is the elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.").

Additionally, this Court would briefly note that the City's reliance on isolated statements by the Historic Preservation Officer on October 21, 2020 is misguided. For example, that the Officer referred to the Property as "potentially" historic is a bad fact for the City. This statement evinces a preliminary determination of eligibility warranting review by the Board. Moreover, it does not matter that the Officer asked the Board if it wanted a full designation report. Sec. 3-1107(G) provides for said reports and anticipates they may be considered by the Board in its before the Board for historical significance review without the Officer having made a preliminary determination of eligibility.

[*6] consideration of eligibility. Finally, that the Officer stated he was not asking for final designation on October 21, 2020 does not, in any way, evidence some failure to have made a preliminary determination of eligibility. Nothing in sec. 3-1107(G) requires the final hearing to be held the first time the Property comes before the Board. On the contrary, it envisions a preliminary determination of eligibility, some review by the Board, the possible request for additional information, and a final hearing within sixty days of the Historic Preservation Officer's preliminary determination of eligibility.

The City's interpretation of sec. 3-1107(G) is wrong. Its version of events is contradicted by the record-including the Historic Preservation Officer's own correspondence and statements before the Board on October 21, 2020.4 The City departed from the essential requirements of the law when it failed to hold the final hearing within sixty days of the Historic Preservation Officer's preliminary determination of eligibility, which in this case necessarily occurred no later than October², 2020. 5 To the extent this Court has had to refer to the record for any facts, we note that the Board made no specific findings of fact concerning the date on which the preliminary determination was made. At best, throughout these proceedings, various persons, including the Historic Preservation Officer, one or more members of the Board and the Assistant City Attorney, have expressed their legal opinions of what the Code requires. To the extent any findings of fact were made by the Board or City Commission that would tend to establish that the preliminary determination of eligibility was made at any point after October², 2020, those findings would be clearly erroneous. The law and record in this case are abundantly clear. [*7] The City also failed to afford Petitioners procedural due process. "[D]ue process requires that... decisions be reached by a means that preserves both the appearance and reality of fairness." Pena v. Rodriguez, 273 So. 3d 237, 240 (Fla. 3d DCA 2019) (citation and quotation marks omitted). Due process is generally understood to require that a party "be provided notice and a meaningful opportunity to be heard." Id. (emphasis added).

As stated above, on August 27, 2020, Petitioners asked the Historic Preservation Officer for approval of a demolition permit. Rather than approve the permit, the Historic Preservation Officer requested a historical significance review by the Board. See Appx. At A.026 (“The above referenced property has been scheduled for historical significance review by the Historic Preservation Board."). Petitioners were not informed at that time of the designation criteria the Historic Preservation Officer believed warranted designation of the Property as a local historic landmark.

On October 21, 2020, the Board conducted a historical review of the Property. Although the Historic Preservation Officer set forth a series of reasons why the Board might wish to designate the Property a local historic landmark, the Historic Preservation Officer did not formally identify any specific criteria she believed warranted historic designation of the Property under the Code. See Appx. at A.035- 36.

Board for review and subjected Petitioners to historic designation proceedings without having made a preliminary determination of eligibility. Under either scenario, the City departed from the essential requirements of the law. [*8] Five days later, on October 26, 2020, Petitioners were informed a final hearing would be held on December 16, 2020. See Appx. at A.153. Still, Petitioners were not provided with any formal notice of what designation criteria the City believed warranted historical designation of the Property.

It was not until December 11, 2020, a mere five days prior to the final hearing, that Petitioners were for the first time provided with notice of the designation criteria that purported to establish their home was a "local historic landmark." The report purported to show that the Property met three separate criteria for historical designation.

In the proceedings below, Petitioners complained that they had not, until five days prior to the final hearing, been provided with any reason why their Property may be eligible for designation as a "local historic landmark." In response, the Assistant City Attorney stated the Code did not require the Historic Preservation Officer to base her preliminary eligibility determination on any criteria, and that Petitioners were not entitled to receive any designation report within any specific period of time. Specifically, the City stated, In terms of receiving the report, the Code is silent on when they need to receive it by... [Petitioner Mr. Zaharewicz] did articulate originally that he needed criteria for that preliminary designation. Once again, our Code is silent on that. The Code does not require for a preliminary designation- not a designation, but the preliminary decision to move forward with designation does not have any criteria in our Code. [*9] Appx. 434:16-17, 435:1-7. The City's position, therefore, appears to be that (1) the Historic Preservation Officer could make a preliminary determination of eligibility without considering any of the criteria that would factor into a final determination of eligibility; and (2) the City need not inform the homeowner why their property is being subjected to historic designation proceedings.

The City is wrong. A preliminary determination of eligibility must necessarily include a consideration of the same criteria used for a final determination of eligibility. To suggest otherwise would render the term "eligible" meaningless and lead to an absurd result, i.e. a preliminary determination of eligibility that does not take into account a property's actual eligibility for designation.

Additionally, the Code requires "all documentary evidence and written summaries of expert testimony" to be filed with the Clerk up to five days before the final hearing. See City of Coral Gables, Fla., Zoning Code § 15-104. This rule presupposes that one knows the substantive claims against which he, or she, must defend. If it were otherwise, parties would be incapable of filing documentary evidence or hiring experts to address or rebut any one or more claims. It is unreasonable to expect that homeowners, like Petitioners, could timely provide documentary evidence or summaries of expert testimony pertaining to matters they did not already know were at issue.

For example, in this case, Petitioner Mr. Zaharewicz, stated at the final hearing that he only became aware of the City's claim that his home fit a particular architectural style when the City filed the designation report on December 11, 2020- [*10] or five days prior to the hearing. Mr. Zaharewicz, who had researched the issue, attempted to explain why he did not believe his home was of a neoclassical architectural style. In response, the Historic Preservation Officer reminded the Board that Mr. Zaharewicz is not an architect or historian and that the City's designation report was, in contrast, prepared by an expert. Specifically, the Officer stated, So, the owner of the property is an attorney and did a bunch of research and has delved deep into architecture, but is not an architect, and is not a historian. And the staff report that was prepared for you was written by a PhD.

Appx. at A.431:5-9. And, of course, the Historic Preservation Officer is correct—at least as far as the record is concerned. It does not appear that Petitioner Mr. Zaharewicz is an architect or historian. But this is precisely the problem. The City failed to inform Petitioners of the criteria it believed justified designation of their home until five days before the hearing, and then faulted them for the quality of their response.

Worse, the City now asks this Court to find Petitioners were not, in fact, denied due process because Petitioners were told they would, at some point, receive the designation report, and Petitioners managed to present some opposition to the designation. See City's Resp. at 18 ("Petitioners were notified that a designation report was forthcoming..." and "Petitioners' preparation for the December 16th hearing actually began before they received the December 11 designation report."). The City, however, should not be made to benefit from Petitioners' due diligence in preparing for unknown claims. [*11] Additionally, the City argues Petitioners rejected the offer of a continuance. The City, however, neglects to mention the continuance was conditioned on a waiver of Petitioners' argument that the final hearing was being unlawfully held beyond the sixty-day period set forth in the Code.

In short, the City has taken the following positions: (1) the Historic Preservation Officer need not consider any particular criteria in making a preliminary determination of eligibility; (2) no information about what criteria might warrant historic designation of a particular property need be provided to the homeowner; (3) a homeowner's request for a continuance can be conditioned on the waiver of a meritorious argument; (4) the homeowner cannot be heard to complain about a lack of notice if he or she has been diligent in preparing to contest unknown claims; and (5) anything the homeowner does present should be discounted, or ignored, because the homeowner is not himself an architect or historian.

This is not due process, and it certainly does not preserve the appearance of fairness. Pena, 273 So. 3d at 240 ("Due process requires that decisions be reached by a means that preserves both the appearance and reality of fairness.") (citation omitted). Historic preservation should not come at the expense of depriving the City's own residents of a meaningful opportunity to contest claims of purported historical significance against their homes.

Accordingly, the Petition is GRANTED. The City Commission's resolution is quashed and the decision by the Historic Preservation Board is reversed.

TRAWICK and DE LA O, JJ., CONCUR [*12] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]