EASTERN SHORES PROPERTY

v.

CITY OF NORTH MIAMI BEACH

Before: TRAWICK, DE LA O, and SANTOVENIA JJ.

SANTOVENIA, J.

Petitioner Eastern Shores Property Owners Association, Inc. is a Florida not-forprofit corporation comprised of property owners within the Eastern Shores neighborhood of the City of North Miami Beach (“City”). Individual Petitioners Bruce Kusens, Bruce Lamberto, and Stacy Roskin live within Eastern Shores. (Eastern Shores Property Owners Association, Inc., Kusens, Lamberto and Roskin are collectively the “Petitioners”). Petitioners seek to quash the December 18, 2020 decision of the City Commission which approved Ordinances 2020-07 and 2020-08 (collectively “the Ordinances”) for the redevelopment of the Intracoastal Mall located in the Eastern Shores neighborhood. Factual Background By enacting Ordinance 2020-071, the City Commission through its legislative approval process amended the North Miami Beach Zoning and Land Development Code (“Code”) to allow for the redevelopment of the Intracoastal Mall (“Mall”), a [*3] Page³ of 12 mixed-use project. The redevelopment is to occur in accordance with the amended conceptual master plan (“CMP”) submitted by Respondent Dezer Intracoastal Mall, LLC (“Developer”). By Ordinance 2020-082, the City approved a thirty-year Development Agreement with the Developer which incorporated the amended CMP for the redevelopment of the Mall. The amended CMP is a mixed-use phase redevelopment project consisting of²,000 multifamily residential units, up to 575,000 square feet of commercial/retail/office space, and a 250-room hotel. In March of 2015, the Mall, zoned BU-2, General Business District, a commercial zone allowing 16.5 million square feet of non-residential development, 669 residential units and 15 stories, was rezoned by the City to the “Mixed-Use Eastern Waterfront District” (MU/EWF) with amendments to the Comprehensive Plan and the MU/EWF District zoning regulations adopted by the City. The MU/EWF District increased the allowable building heights up to 40 stories and number of dwelling units to²,000 residential units, and decreased the commercial use size to 2.5 million square feet of commercial development.

[*4] Page⁴ of 12 Section 24-58 of the Code governs the development and redevelopment of the MU/EWF District. At issue is the interpretation of Section 24-58.7(O)(2)(e), entitled “Development Approval Conditions of the Code”, which states: “[t]he developer shall be required to provide for multiple access points with direct east and west access to and from SR 826 and traffic mitigation such that the development does not burden NE 35th Avenue.” Petitioners argue that the Ordinances are noncompliant with section 24-58.7(O)(2)(e) of the Code since NE 35th Avenue will become burdened by traffic resulting from the proposed redevelopment because the Developer failed to “provide for multiple access points with direct east and west access to and from SR 826” as a condition of redevelopment and traffic mitigation. Standard of Review When a circuit court in its appellate capacity reviews local governmental administrative action, it must determine:¹) whether procedural due process was accorded³; 2) whether the administrative body departed from the essential requirements of the law by applying incorrect law; and³) whether the administrative body’s findings are supported by competent, substantial evidence. Wiggins v. Fla. [*5] Page⁵ of 12 Dep’t of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1170 (Fla. 2017); City of Miami Beach v. Beach Blitz, Co., 279 So. 3d 776, 778 (Fla. 3d DCA 2019). Standing Other than by water, the only way to enter and exit the Eastern Shores neighborhood is by using NE 35th Avenue (a two-lane road) to and from NE 163rd Street/State Road (SR) 826. Petitioners, with the exception of Roskin, have standing⁴ as they challenge not only the potential resulting traffic increase, but also argue that the sharing of NE 35th Avenue as the sole means to enter or leave their properties confers a special injury. Consequently, Petitioners have a legally cognizable interest that is adversely affected by the Ordinances. See Renard v. Dade Cty., 261 So. 2d 832, 835-837 (Fla. 1972) (“An aggrieved or adversely affected person having standing to sue is a person who has a legally recognizable interest which is or will be affected by the action of the zoning authority in question. The interest may be one shared in common with a number of other members of the community as where an entire neighborhood is affected…An individual having standing must have a definite interest exceeding the general interest in community good share [sic] in common with all citizens”).

See Edwards v. CIT Bank, N.A., 306 So. 3d 217, 219 (Fla. 3d DCA 2020).

[*6] Page 6 of 12 Essential Requirements of Law A failure to observe the essential requirements of the law has been held to be synonymous with a failure to apply the correct law. Fassy v. Crowley, 884 So. 2d 359, 364 (Fla. 2d DCA 2004). It is well-established that the City possesses the inherent “power to amend, modify or repeal by ordinance.” Miami-Dade Water & Sewer Auth. v. Metro. Dade Cty., 503 So. 2d 1314, 1316 (Fla. 3d DCA 1987). Notably, both Ordinances contain provisions repealing any conflicting prior ordinances. Section⁵ of Ordinance 2020-07 specifically states: “[a]ll prior ordinances or resolutions, or parts thereof, in conflict herewith are hereby repealed to the extent of said conflict.” Similarly, section 6 of Ordinance 2020-08 specifically states: “[a]ll ordinances or parts of ordinances in conflict therewith be and the same are hereby repealed.” We find no conflict between the Ordinances and section 24-58.7(O)(2)(e) of the Code when harmonized and construed in pari materia with the City’s controlling regulations. Even assuming arguendo that there had been an inconsistency between the prior 2015 ordinance [section 24-58.7(O)(2)(e) of the Code] and the Ordinances, once the Ordinances were approved, any alleged conflict between the Ordinances and section 24-58.7(O)(2)(e) of the Code disappeared by operation of the plain and ordinary meaning of the provisions repealing all inconsistent ordinances. See Rinker Materials Corp. v. City of North Miami, 286 So. 2d 552, 553-54 (Fla. 1973); [*7] Page 7 of 12 Matheson v. Miami-Dade Cty., 258 So. 3d 516, 521-22 (Fla. 3d DCA 2018).

Moreover, the City implicitly declared the meaning of section 24- 58.7(O)(2)(e) of the Code in 2015 when it approved the diagrammatic 2015 MU/EWF District Street Regulating Plan which shows the required single traffic access point to NE 163rd Street/SR 826. The declared purpose of a Street Regulating Plan pursuant to section 24-58(G)(2) of the Code is to show: “[t]he location of existing and the required new streets to create the prescribed networking streets within the mixed-use district. This plan also establishes the hierarchy of the streets.” Pursuant to section 24-58.7(E)(2) of the Code, the 2015 MU/EWF District Street Regulating Plan shows “the approximate location of existing and required new streets needed to create the prescribed network of streets within the [MU/EWF].” While Petitioners interpret section 24-58.7(O)(2)(e) of the Code as requiring multiple access points directly to and from NE 163rd Street/SR 826, it must be noted that the 2015 MU/EWF District Street Regulating Plan shows only one traffic access point from the subject property to NE 163rd Street/SR 826, which is the same access point in the proposed Street Regulating Plan of the Developer. We find that the MU/EWF District Street Regulating Plan adopted in 2015 that showed only one point of ingress/egress to NE 163rd Street/SR 826 is controlling as to the meaning of section 24-58.7(O)(E)(2) of the Code. Petitioners also argue a lack of compatibility with the surrounding Eastern [*8] Page 8 of 12 Shores neighborhood, relying on legal authorities regarding rezoned properties whose density or intensity was changed. Those legal authorities are inapposite.⁵ The City and Developer correctly argue that no resolution was advanced below and that no rezoning occurred regarding the redevelopment of the Mall since the intensity and density were set in the 2015 rezoning of the Mall to the MU-EWF District. Further, during the first and second readings of the Ordinances on September 24, 2020 and October 20, 2020, the issue of lack of compatibility was not considered by the City below. Furthermore, we lack certiorari jurisdiction to hear Petitioners’ comprehensive plan inconsistency challenge to the Development Agreement and amended CMP. See Parker v. Leon Cty., 627 So. 2d 476, 480 (Fla. 1993). Accordingly, we find that the City did not depart from the essential requirements of the law in enacting the Ordinances.

The City and Developer correctly argue that Petitioners’ reliance on the Allapattah Trilogy, i.e., Allapattah Community Ass’n, Inc. of Florida v. City of Miami, 379 So. 2d 387, 388 (Fla. 3d DCA 1980); Auerbach v. City of Miami, 929 So. 3d 693, 695 (Fla. 3d DCA 2006) and Alvey v. City of North Miami Beach, 206 So. 3d 67, 74 (Fla. 3d DCA 2016) is misplaced, because unlike in the Allapattah Trilogy where the resolutions changed the zoning from residential to commercial, no rezoning of the subject property occurred here since the zoning of MU/EWF District remains the same as in 2015. The Ordinances approved the redevelopment with the same uses, density, and height previously approved in 2015 while the amount of commercial development intensity was reduced by 75% by moving the taller buildings to the waterfront and away from single family residences.

[*9] Page 9 of 12 Substantial Competent Evidence In reviewing a decision of an administrative body, a circuit court in its appellate capacity cannot reweigh the evidence where there may be conflicts in the evidence nor substitute its judgment about what should have been done for that of the administrative body. School Bd. of Hillsborough Cty. v. Tenney, 210 So. 3d 130, 134 (Fla. 2d DCA 2016); Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So. 2d 1247, 1249 (Fla. 2d DCA 2006). The record consists in part of the September 24, 2020 City’s Staff Report and a traffic study by Kimley-Horn and Associates which shows that NE 35th Avenue will not be overburdened. See Village of Palmetto Bay v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19, 27 (Fla. 3d DCA 2012) (a staff report is competent substantial evidence where the staff made a complete review of all applicable review criteria); City of Hialeah Gardens v. Miami-Dade Charter Found., Inc, 857 So. 2d 202, 204-05 (Fla. 3d DCA 2003) (staff recommendations can constitute substantial competent evidence). Competent substantial evidence may also be comprised of aerial photographs and maps. See generally Metro. Dade Cty. v. Blumenthal, 675 So. 2d 598, 600 (Fla. 3d DCA 1995). Here, the fact-based, competent substantial evidence supporting the City’s decision to approve the Ordinances consists of testimony from the City’s independent traffic consultant, the Developer’s traffic engineer and its architect, as well as maps, aerials, studies, and a hurricane [*10] Page 10 of 12 preparedness analysis.

In addition, the issue of whether the Ordinances complied with the traffic multiple access points under the 2015 section 24-58.7(O)(2)(e) Code provision was fully debated before the City below. The City concluded that the “level of service provided to the adjacent roadways with improvements comply [sic] with the level of service outlined in the comprehensive plan transportation element.” The City’s concurrency and traffic engineering consultants, the Corradino Group, reviewed the Traffic Impact Analysis and the amended CMP and concurred with the analysis provided by Kimley-Horn and Associates. The City’s Planning and Zoning Manager recommended approval of the MU/EWF District and MU District zoning text amendments and testified that the Developer is providing multiple access points in the redevelopment of the Mall and that one of them provides the direct east/west access to and from NE 163rd Street/SR 826. To resolve the traffic, safety, and evacuation concerns of Petitioners and Eastern Shores residents, the City’s traffic consultant testified that by adding an additional left turn lane and an additional new signalized intersection at NE 36th Avenue, the requirement of section 24-58.7(O)(2)(e) will be satisfied. The access options were constrained by¹) the proximity of the Mall to the state park;²) the “bridge raised roadway”;³) the protections to the state park in the Comprehensive Plan;⁴) whether a second access point on NE 163rd Street/SR 826 would fit or [*11] Page 11 of 12 whether it would be aligned with the existing roadway; and⁵) the geometry relating to access configuration to maintain appropriate speed. As to the Texas U-Turn advocated by the Petitioners to resolve the traffic, safety, and evacuation concerns, in 2016, the Texas U-Turn’s feasibility and environmental impact was studied, and it was rejected because of environmental concerns regarding the state park and protected areas. Based on the Staff Report analyzing the Comprehensive Plan, the Texas U-Turn or a Fly-a-Way was not a feasible solution due to environmental conditions and a right-of-way issue. Nonetheless, the Conservation Element of the Comprehensive Plan would prohibit both. The Staff Report found that the redevelopment of the Mall satisfied the objective measures for transportation concurrency with the conditions of approval. The proposed development plan provided for less commercial intensity than permitted in 2015. All future phases of the redevelopment project will provide a site plan that will also be evaluated against the requirements of the Comprehensive Plan and Code. Petitioners argue that the City’s Staff Report misrepresented the NMB Comprehensive Plan-Future Land Use Element (FLUE) - Policy 1.8.7 (Policy 1.8.7) content in its report because the issue of multiple access points pursuant to Policy 1.8.7 was merely a listed topic to be discussed in a pre-application meeting. Therefore, Petitioners argue no inconsistency exists between section 24- [*12] Page 12 of 12 58.7(O)(2)(e) of the Code and Policy 1.8.7 as alluded to in the Staff Report. We decline Petitioners’ invitation to reweigh the Staff Report as evidence. See Dusseau v. Metro. Dade Cty. Bd. of Cty. Comm’rs., 794 So. 2d 1270, 1276 (Fla. 2001) (“The test is whether there exists any competent substantial evidence to support the decision maker’s conclusion; and any evidence which would support a contrary decision is irrelevant.”) Finally, the Community Development Director testified extensively below and recommended approval. The Community Development Director testified that the roadway improvements provide direct east and west access to and from NE 163rd Street/SR 826 and that the redevelopment of the Mall’s safety and design features will undergo further review and final approval by the Florida Department of Transportation. Based on our review of the extensive appellate record, we find that the City’s decision to approve the Ordinances concerning the redevelopment of the Mall was supported by substantial competent evidence. Accordingly, for the foregoing reasons, the Petition for Writ of Certiorari is

DENIED.

TRAWICK and DE LA O, JJ. concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

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