BELLINI CONDOMINIUM ASSOCIATION, INC

v.

VILLAGE OF BAL HARBOUR, FLORIDA AND CARLTON TERRACE OWNER, LLC

Carter N. McDowell, Eileen Ball Mehta and Nicholas A. Noto, Bilzin Sumberg Baena & Axelrod LLP, for Carlton Terrace Owner LLC, Respondent/Intervenor. Before: TRAWICK, SANTOVENIA and R. ARECES, JJ.

TRAWICK, J.

This matter comes before this Court on a Petition for Writ of Certiorari filed by Bellini Condominium Association, Inc. to quash the decision of the Village Council of Bal Harbour, Florida, rendered on October 25, 2022, affirming a previous decision of the Architectural Review Board to issue a Certificate of Appropriateness for the Residences of Bal Harbour. Background

Petitioner Bellini Condominium Association, Inc., ("Petitioner”), located at 10225 Collins Ave., is the direct neighboring property owner to the proposed Residences of Bal Harbour ("Development”), located at 10245 Collins Avenue, by Carlton Terrace Owner, LLC [*3] ("Applicant").¹ The Village and Applicant will be referred to collectively as "Respondents".

On May 5, 2022, Applicant filed an application with the Architectural Review Board ("ARB") for the proposed Development, a 24-story multifamily condominium with underground parking to be located at 10245 Collins Ave, Bal Harbour, which would replace an existing condominium on the site known as Carlton Terrace.

On October 5, 2022, the Village Attorney confirmed that Stephanie de Halfen, an ARB member, had resigned effective immediately and would not participate at the ARB Hearing. The next day, the ARB conducted a hearing ("ARB Hearing") and issued a Certificate of Appropriateness ("COA") for the Development.

On October 25, 2022, the Village Council conducted a hearing ("Village Council Hearing") on Petitioner's appeal of the ARB's issuance of a COA (2022-1006) for the Development. On October 31, 2022, the Village Council passed Resolution 2022-1503 ("Resolution").

[*4] On November 30, 2022, Petitioner filed this appeal seeking a Writ of Certiorari quashing the Village Council's Resolution, a quasijudicial decision affirming the decision of the ARB to issue a COA for the Development, and to remand the case to the Village Council for rehearing.

Standing

The Applicant argues that Petitioner lacks standing. They maintain that a representative association does not have standing unless it, rather than its members, suffered a unique special injury, and there is no evidence that any condominium member "suffered a unique special injury that is different in kind from a generalized interest shared in common with the members of the condominium and the community." See Chabau v. Dade Cnty., 385 So. 2d 129, 130 (Fla. 3d DCA 1980). Further, the Applicant contends that the appeal of the ARB decision was filed solely on behalf of the Petitioner, who is not a property owner, instead of on behalf of or by any of its members.

Petitioner was granted intervenor status at the ARB hearing without objection. Petitioner was also allowed to make a presentation before the Village Council, likewise without objection. Since no [*5] objection was made regarding the Petitioner's status either before the ARB or the Village Council, the issue was waived. See Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) ("[F]or an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception or motion below.").² However, even if the standing argument was not waived, we find that the Petitioner's arguments should be denied on the merits as discussed herein.

Standard of Review

A three-part standard governs this Court's review: (1) whether procedural due process is accorded; (2) whether the essential requirements of the law have been observed, and (3) whether the administrative decision is supported by competent substantial evidence. Vill. of Palmetto Bay v. Palmer Trinity Priv. Sch., Inc., 128 So. 3d 19, 24 (Fla. 3d DCA 2012).

[*6] Procedural due process "Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure." Jennings v. Dade Cnty., 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). However, certain standards of basic fairness must be followed in order to afford due process. Id. "A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard." Id.

Petitioner argues that the Village did not afford it procedural due process. Petitioner proffers that Village Councilman Sklar clearly pre-judged the appeal and openly expressed his bias, thus making a fair proceeding impossible to obtain. Petitioner alleges that both Councilman Sklar³ and his partner, Ms. Kim Rodstein a "top" realtor, will benefit financially from sales of the proposed Development.⁴ Rodstein is a realtor, Petitioner failed to make any allegations that⁴ Petitioner's Motion to Recuse Councilman Richard Sklar submitted at the Village Council Hearing on October 25, 2022, was denied.

[*7] Ms Rodstein had any real estate dealings in this case or any of Applicant's other developments, and to infer that she did from Petitioner's bald allegations would be entirely speculative.

Petitioner had two opportunities to be heard, to present evidence and to cross-examine witnesses - first at the ARB and then before the Village Council. Petitioner cross-examined the Applicant's and Village's expert witnesses, and additionally chose not to call any witnesses to support their arguments at either hearing. We find that Petitioner's due process arguments are without merit.

Essential Requirements of Law

Having found that the Petitioner was accorded due process, we now turn to the issue of the essential requirements of the law. In Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995), the Supreme Court held that "applied the correct law" is synonymous with "observing the essential requirements of law." Further, to warrant relief, there must be "an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice." Id. (citation omitted).

[*8] Petitioner argues that at the time of signing the Application on May 5, 2022, Applicant was not the owner of the property, and did not become owner of the property until several months later. Thus, Petitioner maintains that the ARB Application should not have been placed upon the ARB agenda until the final closing of the remaining units in August.

Section 2-203, Code of Ordinances for Bal Harbour, (Definitions) states:

Applicant shall mean the owner of record, the owner's agent, or any person with a legal or equitable interest in the property for which an application for a development order has been made and which is subject to quasi-judicial proceedings.

At the time of the filing the ARB Application, the Applicant was legal owner of part of the property and had an equitable interest in the remainder. The Applicant's representative also had the consent of the then-owner of the remainder of the property to file the Application. We find that the Application was properly before the

ARB.

Petitioner's next argument pertains to the resignation of board member Stephanie de Halfen. After her resignation, Petitioner [*9] contends that the ARB violated Village Code Section 2-72, which required a registered architect/landscape architect as part of the mandatory composition of the ARB. Petitioner asserts that until a replacement board member was appointed, no applications should have been heard.

The Village Code, Division³ – Architectural Review Board, Sec. 2-72- Membership; removal states:

Number and qualifications of members. Four members of the ARB shall be either registered architects or registered landscape architects but need not be residents of the Village. One member of the ARB shall be a resident layperson of the Village, provided that the resident has familiarity with architecture, construction, plans review, or similar relevant knowledge. Members of the ARB shall be appointed by a majority vote of the Village Council. ARB members shall be subject to removal in accordance with the provisions of section 2-49. In the event that an ARB member forfeits his or her seat for failure to appear, in person or electronically, at three regular meetings within a calendar year, that member shall continue to serve until a replacement has been appointed by the majority of the Village Council.

Sec. 2-75(c) Approval by Architectural Review Board states: (1) "The ARB shall issue a certificate of appropriateness by an affirmative vote of at least three members." Section 2-50 of the Village Code, [*10] entitled "[r]ules of procedure for Boards", provides that "[a] simple majority of the Board's Members shall constitute a quorum for the transaction of business."

There were three affirmative votes that approved the COA in accordance with Section 2-75(c) (1) of the Village Code. We find that the ARB was properly constituted, a quorum was present at the Hearing, and the resignation of one Board member did not vitiate the unanimous approval of the Application.

We likewise find that Petitioner's claims that Respondent failed to adhere to the essential requirements of law by:¹) approving the development as a mixed use project;²) limiting Petitioner in their presentation to the ARB5 and the Village Council;³) unlawfully permitting construction seaward of the coastal construction line and finally;⁴) approving the COA in return for a donation to the Village (asserting that the Village engaged in "pay to play" or contract zoning), are all without merit.

Competent substantial evidence 5 Petitioner was cautioned several times at the ARB Hearing not to argue zoning issues, and to comment upon the architecture, design or the Appearance Code - the only subjects relevant to the jurisdiction of the ARB.

[*11] We now turn to the issue of competent substantial evidence. "Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred." De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). "Competent, substantial evidence must be reasonable and logical." Wiggins v. Fla. Dep't of Highway Safety and Motor Vehicles, 209 So. 3d 1165 (Fla. 2017). "The test is whether there exists any competent substantial evidence to support the decision maker's conclusions, and any evidence which would support a contrary conclusion is irrelevant." Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm'rs, 794 So. 2d 1270, 1276 (Fla. 2001).

Petitioner maintains that the Village's decision is not supported by competent substantial evidence, arguing that the Village's decision to affirm the decision of the ARB in issuing the COA does not comply with Code Sections 2-72, 21-281 and 21-446. We do not agree. Chapter 21 is the zoning chapter for Bal Harbour, and therefore wholly inapplicable to an ARB Hearing and the subsequent appeal to the Village Council. Additionally, Chapter², section 72, pertains to the removal of board members, discussed supra.

[*12] Applicant offered the testimony, opinions, and documentary evidence of its experts, along with the recommendations of the Village Staff. Appellate courts have held consistently that staff reports and testimony constitute substantial competent evidence on which the zoning authority can rely to support its decision to approve or deny an application. See Vill. of Palmetto Bay, 128 So. 3d at 27 (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).

During the ARB Hearing, Petitioner's counsel expressed opinions and conclusions regarding compliance with permitted zoning uses, the building code, coastal construction control lines and flood criteria - none of which are relevant to the Appearance Code. There was no record evidence that Petitioner's counsel was testifying as an architect or design professional. Where technical expertise is required, lay opinion evidence is not valid evidence upon which a quasi-judicial determination can be based. Jesus Fellowship, Inc. v. Miami-Dade Cnty., 752 So. 2d 708 (Fla. 3d DCA 2000).

[*13] On the other hand, there is ample competent substantial evidence in the Record to support the decisions of the ARB and the Village Council.

Accordingly, for the foregoing reasons, the Petition for Writ of Certiorari is DENIED.

SANTOVENIA AND ARECES, JJ., concur. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL