Third District Court of Appeal
State of Florida
Opinion filed March 10, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1950
Lower Tribunal No. 19-265-AP, Ordinance No.: 2019-18
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Yacht Club by Luxcom, LLC,
Petitioner,
vs.
Village of Palmetto Bay Council, et al.,
Respondents.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Appellate Division, Daryl E. Trawick, Lisa S. Walsh, and Maria de
Jesus Santovenia, Judges.
Moskowitz, Mandell, Salim & Simowitz, P.A., and Todd A. Armbruster,
Michael W. Moskowitz and Scott M. Zaslav (Fort Lauderdale), for petitioner.
Lehtinen Schultz, PLLC, and Dexter Lehtinen and Claudio Riedi, for
respondents.
Before HENDON, GORDO and BOKOR, JJ.
BOKOR, J.
Petitioner Yacht Club by Luxcom, LLC, seeks second-tier certiorari
review of the circuit court appellate division’s order denying the petition for
certiorari brought against the Village of Palmetto Bay Council and the Village
of Palmetto Bay. The underlying petition alleges a departure from the
essential requirements of law and a violation of due process based on the
Village Council’s approval of Ordinance No. 2019-18, which amended the
zoning designation of the property at issue. Because the circuit court
afforded procedural due process and applied the correct law, we deny the
petition.
Petitioner argues that the circuit court departed from the essential
requirements of the law by failing to apply the correct legal standard in
determining that the challenged zoning ordinance does not constitute
impermissible reverse spot zoning. 1 Petitioner also argues that we should
give no deference to the circuit court because of the important interests being
adjudicated pertaining to property rights. While we do not discount the
import of the issues raised, this proposed standard of review fails to
1
"Reverse spot zoning occurs when a zoning ordinance prevents a property
owner from utilizing his or her property in a certain way, when virtually all of
the adjoining neighbors are not subject to such a restriction, creating in
effect, a veritable zoning island or zoning peninsula in a surrounding sea of
contrary zoning classification. Reverse spot zoning is invalid, as it is
confiscatory." City of Miami Beach v. Robbins, 702 So. 2d 1329, 1330 (Fla.
3d DCA 1997).
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recognize clear limits in reviewing an issue on second-tier certiorari.
Specifically, we do not substitute our judgment for the reviewing court so
long as the reviewing court applied the correct legal standard.
Notwithstanding the issue raised, “second-tier certiorari should not be used
simply to grant a second appeal; rather, it should be reserved for those
situations when there has been a violation of a clearly established principle
of law resulting in a miscarriage of justice.” Nader v. Fla. Dep’t of Highway
Safety & Motor Vehicles, 87 So. 3d 712, 717 (Fla. 2012).
Accordingly, we look to determine whether there has been any such
violation of the applicable legal standard. Based on our review, we
determine that the circuit court applied the correct legal standard to its
review. 2 The circuit court analyzed the zoning decision on a substantial
competent evidence standard. Next, in applying such a standard, the circuit
court found substantial competent evidence to support the zoning
determination of the Village Council. For example, the circuit court noted that
“[t]he record shows that Luxcom’s own undeveloped 10 acres located
immediately west of the Property had the same E-1 zoning designation as
the Property at issue.” The fact that there is competing evidence in the
2
Respondents argue that the petition is moot due to subsequent legal action
by petitioner. We decline to address that argument as we dispose of the
petition on the grounds discussed herein.
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record, a point acknowledged by the circuit court, does not change our
analysis under a substantial competent evidence standard.
Petitioner argues that the circuit court violated clearly established law
as provided by this Court in Palmer Trinity Private School, Inc. v. Village of
Palmetto Bay, 31 So. 3d 260 (Fla. 3d DCA 2010). In Palmer Trinity, this
Court explained that the Village’s actions constituted impermissible spot
zoning, and the circuit court departed from the essential requirements of the
law, where “[t]he record establishe[d] that Palmer Trinity [was] not
afforded the same beneficial use and restrictions for Parcel B that [were]
enjoyed by the owners of the surrounding properties.” Id. at 262 (emphasis
added). In Palmer Trinity, the pertinent analysis examined whether the
Village’s refusal to grant the zoning change was appropriate since it resulted
in Palmer Trinity being treated differently from its neighbors. Id. at 262-63.
This court found “no record justification for [the Village’s] refusal to rezone
the property to a classification consistent with the properties surrounding [it]”
thereby rendering the underlying decision of the Village Council “[a]s a
matter of law…arbitrary, discriminatory, [and] unreasonable.” Id. at 263.
Unlike Palmer Trinity, nothing in the record shows that the Village sought to
treat the Petitioner differently because of the proposed use of the property.
Instead, as explained above and in detail in the circuit court opinion, the
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circuit court held, based on record evidence, that the determination of the
proper zoning designation was at least “fairly debatable,” that there was no
disparate treatment, and that substantial competent evidence supported the
zoning determination made by the Village Council. 3
Petition denied.
3
Petitioner encourages the use of a strict scrutiny standard. Any reader
familiar with constitutional law and litigation immediately recognizes the high
hurdle strict scrutiny imposes on a government actor. Here in the zoning
context, “strict scrutiny” means that a reviewing court examines the decision
to ensure that the governmental entity followed the law and where necessary
found competent substantial evidence to support its decision. “[Strict
scrutiny] as used in the review of land use decisions must be distinguished
from the type of strict scrutiny review afforded in some constitutional cases.”
Bd. of County Comm’rs v. Snyder, 627 So. 2d 469, 475 (Fla. 1993)
(examining strict scrutiny as a term of art warranting significantly different
standards of review in the different contexts). This strict scrutiny in context
of reviewing a zoning decision doesn’t mean that a decision fails where there
are other possible outcomes, which may be the result under a constitutional
analysis applying strict scrutiny. Rather, it means a zoning decision will fail
if it does not follow the law, if parties are impermissibly treated differently
such as in Palmer Trinity, or the factual findings are not supported by
competent substantial evidence. See Alvey v. City of North Miami Beach,
306 So. 2d 67, 73-74 (Fla. 3d DCA 2016) (finding a departure from the
essential requirements of law where there was no evidence and no requisite
findings by the city on an issue required by law to be considered).
The factual underpinnings of a zoning decision are reviewed under the
substantial competent evidence standard. A zoning decision will survive
where the findings made by the zoning authority are “fairly debatable” based
on the evidence presented, requiring reversal only where “arbitrary,
discriminatory, or unreasonable.” Snyder, 627 So. 2d at 476. The circuit
court correctly noted that there was competent evidence to support the “fairly
debatable” conclusions of the Village Council here.
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