MIAMI DADE COUNTYV CITY OF MIAMI ANTHONY VINCIGUERRA AND COURTNEY BERRIEN

Appeals Board (the "Resolution"). This Court agrees. Petitioner's 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 have been observed, and (3) whether the administrative findings are supported by competent substantial evidence." Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003). In this case, Respondent City of Miami's Planning and Zoning Appeals Board (the "PZAB") applied the wrong law, made a decision unsupported by competent substantial evidence and deprived Petitioner of due process.

This case is not complicated.

Pursuant to sec. 3.3 of the Coconut Grove Neighborhood Conservation District NCD-3, "[a]ll demolition permits shall require a Waiver and be referred to the Planning Department for review under N text can be found in Chapter 17 of the City Code of Ordinances. See Miami, FL., Code at §§ 17-1-17.77. [*2] the Tree Preservation Ordinance."1 See Miami, FL., Code Appx. A at 3.3 (emphasis added). Section 3.3 also requires "[a]ll submittals shall contain a tree survey by a certified arborist." Id. (emphasis added).

Section 7.1.2.5 of the Miami Code sets forth the review criteria and approval process for the aforementioned waiver. See Miami, FL., Code at § 7.1.2.5. Importantly, sec. 7.1.2.5(d) provides, in part, Approvals shall be granted when the application complies with all applicable regulations.

Id. (emphasis added). The "applicable regulations," in the context of the particular Waiver sought here, quite obviously do not encompass regulations inapplicable to trees and their preservation. If this was not immediately apparent from the plain text of the code provisions at issue, then it should have been following this Court's 2019 Opinion in Cube 3585, LLC v. City of Miami, et. al., Case No. 18-050, 44 Fla. L. Weekly D2248b (Fla. Cir. Ct. App. Jan. 31, 2019) ("The NCD is very specific to the nature of what this Waiver was for to make certain that the tree canopy is not being affected and is protected."). The City of Miami, in fact, appears to agree and has filed a Confession of Error [*3] wherein it "admits that, based on the pertinent code provisions and this court's prior decision in the Cube 3585, LLC..., the Planning and Zoning Appeals board erred when it granted the appeal at issue."

The two individual respondents, Anthony Vinciguerra and Courtney Berrien (collectively, the "Individual Respondents"), however, continue to argue that the Writ of Certiorari should be denied because, among other things, Petitioner is merely asking us to reweigh the evidence.² Individual Respondents' remaining arguments for denying the Writ of Certiorari, therefore, are rejected without further discussion. [*4] lien that had been released in 2014, a certificate of appropriateness and even the definition of the term "minor." These matters have no bearing on the Waiver at issue in this case, and the PZAB deprived Petitioner of due process when, without notice, it unlawfully expanded the scope of the hearing to include matters over which it had zero authority.

In summary, the PZAB (1) applied the incorrect law and, in so doing, ignored this Court's prior precedent; (2) rendered a decision that was unsupported by competent, substantial evidence; and (3) deprived Petitioner of the due process of law. 3 Accordingly, the Petition for Writ of Certiorari is GRANTED. Resolution No. PZAB-R-23-037, issued by the City's Planning and Zoning Appeals Board is QUASHED.

TRAWICK and SANTOVENIA, JJ., concur. TRAWICK, J., specially concurring.

I write separately to express my concern regarding the failure of the Acting Chairperson of the Planning and Zoning Appeals Board to N 3 This majority opinion does not address whether the Acting Chair should have recused himself from the proceedings below. Petitioner failed to preserve that issue. [*5] recuse himself. This issue was not preserved, and as a result is not addressed in the majority opinion. However, the conflict and bias, or at the very least the appearance of a conflict and bias, raised in the record below is so startlingly apparent that it cannot be ignored. Acting Chair Parrish disclosed that he had been directly involved with and gave support to objectors of the County's plan for the restoration of the Coconut Grove Playhouse. At the March 15, 2023 appeal hearing before the Board, the Acting Chair stated the following:

My involvement with the Coconut Grove Playhouse began when I was chair of the HEPB Board on October 5, 2005, when the Board voted 8 to zero to designate the entire exterior of the Playhouse historic.

Since then, I have written letters to the editor of the Herald and many others, some of which have been published, recounting my memories of that HEPB Board meeting, for which I have the court reporter transcript showing conclusively that the entire exterior of the Playhouse was designated and not just a socalled front building.

I got directly involved in [sic] again when I spoke to the Miami City Commission on May 8th, 2019, when I testified as to the HEPB Board vote designating the entire exterior of the Playhouse as historic.

I also attended the May 2019 mayor's veto rally at the Playhouse, where Mayor Suarez [*6] recounted his reasons for vetoing the City commission's vote to demolish most of the Playhouse except for the front façade.

In the fall of 2021, a half dozen Groveites, including me, who were in favor of preventing the demolition of all but the façade of the Playhouse raised $5,000 to pay for a billboard on U.S. 1 protesting the proposed demolition of most of the Playhouse.

My company, Wind & Rain Properties, offered to collect the $5,000 for the billboard because that company already had a bank account, was able to segregate and keep track of the monies collected. My contribution was $15, one - [sic] $15.

In August of 2022, I was one of the 14 original plaintiffs in a lawsuit based upon a 2004 voter-approved bond issue to restore the Playhouse. This lawsuit was brought by the attorney here tonight, David Winker. My wife and I are social friends with Attorney Winker and his wife Christina, although we have not met with them at least for the last six months.

Then in September 2022, with the billboard collection mechanism as a precedent, I was requested by other Groveite citizens in favor of saving the Playhouse to again allow my company, Wind & Rain Properties, to collect GoFundMe donations in a segregated account. I agreed to that, but contributed no funding whatsoever myself. That segregated account no longer has any funds in it, having been dispersed to the citizen's group that started it. [*7] I can certainly appreciate and applaud Acting Chair Parrish's sacrifice of his time and effort to participate on a volunteer civic board. I also agree with his statement that "civic activism should not automatically result in disqualification from participation on [the PZAB] or any other City Board ." However, the level of civic participation here, as well as his relationship with counsel for the Respondents, crossed the line to the point that the Acting Chair in a quasi-judicial proceeding had passed from a neutral arbiter to an interested party. While the PZAB rejected a motion requiring Acting Chair Parrish to recuse himself, such a vote should not have been necessary. Given the concerns raised by his activities related to the Playhouse, actual conflict and bias, or at least the appearance of conflict and bias, should have resulted in the Acting Chair Parrish recusing himself. See Int'l Ins. Co. v. Schrager, 593 So. 2d 1196, 1197 (Fla. 4th DCA 1992); Junior v. LaCroix, 263 So. 3d 159, 168 N 4 My concern regarding the Acting Chair's partiality in this matter is further borne out by his expressed disagreement with a precedent of this Court, Cube 3585. He apparently felt that the PZAB could disregard that opinion and act in direct contravention of it. While anyone, including board members, may disagree with a decision of this Court, a Board such as the PZAB is not free to ignore a precedent which interprets the same code provision that is at issue in a pending case before the Board. [*8] (Fla. 3d DCA 2018 (Rothenberg, C.J., specially concurring) ("[T]he trial court impermissibly crossed the line between neutral arbiter of the facts to that of an advocate...."). Had the issue of the Acting Chair's recusal been properly preserved, I believe that this issue would have been another basis to quash the PZAB's decision due to a procedural due process violation.5 SANTOVENIA, J., concurs.

N 5 While the Court chose not to address alleged ethical lapses of counsel for the Individual Respondents, they are also a cause for concern. One glaring example is counsel's presentation of a City code enforcement report to the PZAB in support of his argument that there were ongoing enforcement proceedings against the subject property. In presenting that report, counsel omitted the fifth and final page of the document which directly refuted counsel's argument. That page was not presented by counsel until a board member asked him about the missing page. Playing "fast and loose" with evidence in this manner is a violation of counsel's duty of candor toward a tribunal pursuant to Rule 4-3.3 of the Florida Bar's Rules of Professional Conduct.