ICONBRICKELL CONDOMINIUM NO. TWO ASSOCIATION INC

v.

FIRST PRESBYTERIAN CHURCH AND CITY OF MIAMI

Shubin Law Group, P.A., as counsel for Respondent, First Presbyterian Church.

Before: TRAWICK, DE LA O, and ARECES, R., JJ.

TRAWICK, J.,

This matter is before this Court on a Petition for Writ of Certiorari filed by IconBrickell Condominium No. Two Association, Inc. ("Icon 2" or "Petitioner") to quash the City of Miami Commission's Resolution No. 25-0141 adopted on April 10, 2025, that denied Icon 2's appeal for lack of standing. The Commission's Resolution arose from an appeal of a separate Resolution, HEPB-R-24-032, from the City's Historic and Environmental Preservation Board ("HEP Board"), adopted on December 3, 2024, that denied Icon 2's request to intervene in the matter concerning a designated site known as First Presbyterian Church ("Church").

Background

Petitioner is one of three towers in the IconBrickell complex, located at 465-495 Brickell Avenue, in the City of Miami. It is the closest tower to the Church (Tower 2). Icon 2 has 1,300 residents and 560 units.

The Church owns a three-acre property located at 609 Brickell Ave. The Church and the City are collectively referred to as "Respondents."

The Church was built in 1949 and is designed in the Mediterranean Revival style. There is an educational building located behind it ("School Annex"), and a parking lot located behind both the Church structure and the School [*3] Annex ("Parking Lot"). In 2003, the Church, School Annex, and Parking Lot were collectively designated as historic ("Property").

A narrow parcel of land called Brickell Park separates Icon 2 from the Property. Brickell Park was created in 2005 by a Declaration of Restrictions and Reverter Provision. The Declaration states that ""Brickell Park' shall be used solely as a public passive park." (Pet. App. at Tab 05). There is a temporary easement over a portion of Brickell Park, and in exchange IconBrickell Master Association, Inc. is responsible for the upkeep and maintenance of Brickell Park in perpetuity.

On July 6, 2023, the Church submitted Application PZ-23-16792 (the "Application") to the City to amend the historic designation report for the Property. The Application sought to remove the School Annex and the Parking Lot from the report.1 The City's HEP Board held public hearings pertaining to the Application on July 2, 20242 and December 3, 2024. At the December 3, 2024 hearing (the "HEP Board Hearing"), Mr. Alan Barson requested intervenor status on behalf of Icon 2 so it could participate in the HEP Board Hearing. 3 (Id.

The Board's attorney argued that adequate notice was provided, and the Board did not postpone the hearing. Petitioner has not raised this issue before this Court. [*4] at 15:8-16.). Mr. James Olacio, the General Manager of Icon 2, told the Board that Alan Barson was speaking on behalf of Icon 2. (Pet. App., Tr. 1, 42:9-12).4 The Church objected.⁵ The Board subsequently denied by a 5-3 vote Barson's request for intervenor status, while granting the Church's Application by unanimous vote through Resolution HEPB-R-2024-032 (hereinafter the "HEP Board Resolution").⁶ On February 3, 2025, Icon 2 appealed the HEP Board's decision to the City Commission, alleging the Board violated Sections 23-2 and 23-(4)(c)(3) of the Code by improperly denying its request to intervene at the HEP Board Hearing. The Commission adopted Resolution No. 25-0141 (the "Commission Resolution"), in which it denied Icon 2's appeal based on lack of standing and affirmed the HEP Board's approval of the modification of the historic designation report.

[*5] Standard of Review This Court reviews a local government's quasi-judicial orders under a three-part standard of review that asks whether: (1) the procedural due process requirements are met; (2) the essential requirements of the law have been observed; and (3) the findings and judgment are supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

Generally, "due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered." Richard v. Bank of America, N.A., 258 So. 3d 485, 489 (Fla. 4th DCA 2018) (citation omitted).

A departure from the essential requirements of the law occurs when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Combs v. State, 436 So. 2d 93, 96 (Fla. 1983). “Quasijudicial proceedings are not controlled by strict rules of evidence and procedure." Jennings v. Dade Cnty., 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991).

Analysis

Petitioner argues that the HEP Board violated its due process rights and the City of Miami Code ("Code") by not granting it intervenor status at the December 3, 2024, HEP Board hearing or during the appeal before the City of Miami Commission. Petitioner posits that as the condominium association for Tower 2, it represents and acts on behalf of its property owners and may institute actions in its name on behalf of all members of the association. [*6] The Condominium Act provides that an association may institute an action "in its name on behalf of all unit owners concerning matters of common interest to most or all unit owners." Waterview Towers Condo. Ass'n, Inc., v. City of W. Palm Beach, 232 So. 3d 401, 411 (Fla. 4thDCA 2017), citing §718.111(3), Fla. Stat., and Fla. R. Civ. P. 1.221.

Mr. Barson and Mr. Olacio, two members of the Board of Directors for Icon 2, were both present at the HEP Board Hearing. As we have noted, Mr. Olacio asserted that Alan Barson was speaking on behalf of Icon 2. We find that Icon 2 was entitled to present the request for intervention on behalf of unit owners in Tower 2 before the HEP Board pursuant to the Condominium Act, §718.111(3), Florida Statutes (2025). Likewise, Icon 2 was entitled to appeal the Board's decision to the City Commission.

Petitioner maintains that it is presumed to have intervenor status since the Icon 2 property abuts the Church property and Icon 2 will be adversely impacted by the development of the Church property. In the alternative, Petitioner argues that it is entitled to intervenor status because of its proximity to the Church property and a particular interest that is greater in degree than that of the general public.

Section 23-4(c)(3), Notice and Public Hearing of the City of Miami Code ("Code") states:

The board shall conduct a public hearing to determine whether the proposed historic resource, historic district, multiple property designation, archaeological site or zone meets the criteria set forth in subsection (a) and shall approve, amend, or deny the proposed designation. A person whose interests [*7] in the proceeding are adversely affected in a manner greater than those of the general public may request intervenor status as defined in this chapter. (Emphasis added).

Section 23-2 of the Code defines "Intervenor" as follows:

A person whose interests in the proceeding are adversely affected in a manner greater than those of the general public. A person shall be entitled to the presumption of intervenor status if the person owns the subject property or owns property abutting the subject property. Furthermore, a person shall be entitled to intervenor status if the person owns property within a 500-foot radius from the subject property but is not the property owner or abutting property owner and has a particular interest in the application that is different in kind and degree than the general public. Abutting shall mean to reach or touch; to touch; to touch at the end or be contiguous with; join at a border or boundary; terminate on; and includes properties across a street or alley. A person recognized by the decision-making body, including the historic and environmental preservation board and the city commission, as an intervenor may make a presentation, call and examine witnesses, conduct cross-examinations of witnesses, introduce exhibits, rebut evidence, and make final arguments in the order as decided by the chair of the body to effectuate orderly and efficient proceedings.

(Emphasis added).

Section 23-2 of the Code provides that a person "is entitled to intervenor status if the person owns property within a 500-foot radius from the subject property . . . and has a particular interest in the application that is different in kind and degree than the general public." While the Church argues that Icon 2 is not an abutting property to the Church property, the Icon 2 property is within [*8] 500 feet of the Church property,⁷ with Tower 2 being 160 feet from that property. Strikingly, neither the Church nor the City argue that the Icon 2 property is outside of a 500-foot radius of the subject property. Instead, the Church disputes the assertion that Icon 2 has a "particular interest in the Application that is different in kind and degree than the general public." In making this argument, they maintain that a would-be intervenor must establish an interest in "the specific proceeding" and not just generally about future development.

Petitioner, on the other hand, contends that the demolition of part of the Church and construction of the new project will increase general pollutants, create excessive noise, and decrease the air quality in the area surrounding the Property, which includes 560 units in Tower 2.8 Icon 2 also maintains that its "owners will disproportionately feel the effects of the eventual devaluation of the educational wing (School Annex), and construction of the Project compared to other abutting buildings." (Pet. at 22). Moreover, Icon 2 contends that Brickell Park, which Tower 2 abuts, will be adversely impacted by the demolition of the Church and development of the Project.

[*9] We agree with Petitioner that the interests asserted are sufficient to establish that they are different in kind and degree than those of the general public.

Given the unrebutted record regarding Icon 2's proximity to the Church property, as well as the asserted interests of Petitioner, we find that Petitioner has established standing under Section 23-2 of the Code.⁹ As a result, we find that Petitioner was not afforded procedural due process either before the HEP Board or the City Commission. Additionally, both the Board and the Commission contravened the essential requirements of law in not allowing Petitioner to intervene in the proceedings before both bodies. As a result, Petitioner was deprived of the right to contest the approval of the Resolutions.

Consistent with the foregoing findings, the Petition for Writ of Certiorari is GRANTED, and the decisions of both the City's Historic and Environmental Preservation Board and the City of Miami Commission denying Petitioner standing are hereby QUASHED. Likewise, Board Resolution HEPB-R-24-032 and Commission Resolution No. 25-0141 approving the Application for the modification of the historic designation report at issue are both QUASHED. This matter is REMANDED for further proceedings consistent with this opinion.

DE LA O and ARECES, R., JJ., CONCUR. COPIES FURNISHED TO COUNSEL

OF RECORD AND TO ANY PARTY

NOT REPRESENTED BY COUNSEL.

1 Icon 2 contends that on February 28, 2023, the Church entered a Memorandum of Agreement with a developer regarding the purchase and sale of a portion of the Church's Property - including the School Annex and Parking Lot east of it. Icon 2 maintains that the developer intends to demolish the School Annex and use that section of the Property to construct an 80-story luxury condominium tower.