IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

LOWER TRIBUNAL CASE NO.FILE ID 11-0002-47xc TI-[El LITTLE RIVER CLUB; Petitioner, l

CITY 011 MIAMI, , a a Florida municipal corporation, 7 Respondent. J

PETITION FORXYRIT OF CERTIORARI.

INTRODUCTION

The instant case involves a decision of the City Commission of Miami denying a request by the Little River Club (the Club) to continue to use a portion

of its property as a parking lot. Despite the Clubs protestations to the contrary,
the City demanded that the Club appear before the Commission to justify the continued use of the parking lot. The City Commission thereafter denied the Clubs request. The Cornmissions action invalid for multiple reasons: (1) the

Citys regulations clearly did not require the Club to secure a public hearing
approval; (2) the Commission denied the Club procedural due process during the hearing; (3) the Commission failed to apply criteria in the Citys regulations requiring an analysis of whether the Club had vested rights; and (4) City staff s recommendation on the application was fatally awed, leaving the Commission Without competent substantial evidence to support its decision.

JURISDICTION
This Court has jurisdiction over this matter pursuant to Article V, Section 5

of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(c),

which together authorize circuit courts to review petitions for writ of certiorari
I

References to the Exhibits included in the Appendix attached to this Petition will be followed by the designation Exhibit followed by the appropriate pagination. Referenced page numbers shall be each documents internal pagination. All references to the transcripts of the City Commission hearing on the application will be followed by the designation T followed by the appropriate pagination. .'

- 2 BERCOW RADELL &FERNANDEz

challenging municipal quasijudicial decisions. See generally 8;

STANDARD OF REVIEW j
This C0urts standard of review in the instant case involves a determination of whether the City Commission (1) afforded the Club due process; (2) observed the essential requirements of law in rendering its decision and (3) supported its illant, 419 S0. 2d 624, 626 (Fla. 1982). While styled as a certiorari action, this

Vaillant
C0urts review is akin to a plenary appeal. 5g City of Dania, 761 So.2d at 1092, n.3. STATEMENT OF THE CASE AND FACTS

The Club is a not-for-prot organization that has been serving the

community by providing rehabilitation counseling for alcohol dependenoy, for over twenty (20) years, from the property that is the subject of this Petition (the Property)2. The Property is comprised of a Commercial Lot located at 753 N.E. 79 Street (the Commercial Lot) and two residential lots located immediately behind and abutting the commercial lots rear property line at 770 and 776 N.E. 80

Street (Parking Lot Property).

2 The Little River Club is not a treatment facility and it does not house members on the property. .'

The Commercial Loton N.E. 79 Street is developed with a building

constructed in 1951, that originally imiluded eight (8) retail stores. T., pg. 30. The

building was developed without parking or vehicular access frorn'N.E. 79 Street. T., pg. 4. Today the building is recognized as a legal non-conforming grandfathered structure based on the fact that it was legally permitted without required parking. T., pg. 59. The Parking Lot Property behind the building was residential, but was developed with a surface parking lot that the City of Miami approved in 1965 in order to address the bui1dings parking decit.

Sinee 1965, the Parking Lot Property has served as the Club's only parking and has provided the only means of vehicular access to the Commercial Lotfrorn
N.E. 80 Street. T., pg. 3. More specically, the City approved a conditional use to allow offsite parking on the Parking Lot Property to serve the Commercial Lot. The conditional use approval required a City Commission resolution after public hearing.

It is signicant to note that, the approval specically allowed vehicular

ingress and egress for the Parking Lot Property along N.E. 80- Street. E Exhibit A. A gate was installed by the Club years later and is presently used to prohibit

access to the parking lot when the Club is closed. Exhibit E.

Prior to the Clu_bs purchase of the Property in 1990, the Club's Director requested a verication letter from the City of Miami Zoning Administrator in

relation to their proposed use of the Commercial Lot and the Parking Lot Property.

xhibit C. The Zoning Administrators response conrmed that the proposed use was permitted by the code in effect at that time and it did.not describe the use of the Parking Lot Property as one that -was subject to expiration or amortization. xhibit D; The Club relied on the original 1965 approval as well as the subsequent correspondence from the City of Miami prior to purchasing the Property in 1990. ' . 7 Following the purchase of the Property, the Club improved the Property by adding additional parking spaces to the Parking Lo: Property. This included two (2) new handicap accessible spaces and three (3) standard spaced located on the commercial lot. Like the spaces on the residential lots, these spaces are only accessible via the Parking Lo.t Property. Exhibit E. In 2002, the Club obtained .th'e permit to install a gate at the N.E. 80 Street entrance. T., pg. 32. These improvements were also completed in reliance on the Citys prior approval.

During the 46 years since the City C0mmissi0ns public hearing approval of the
conditional use, the Parking Lot Property has. continuously served the Commercial Lot. T., pg. 10.
In ZOQ9, the City of Miami adopted a new zoningpode called Miami 21 (the

Miami 21 Code") that requires that certain non-conforming transitional uses

must apply for time extensions within sixty (60) days of the renewal of the

certicate of use for the Property on which the uses are located. g Exhibit F,

pg.1, Miami 21 Code Article 7.2.6. The Miami 21 provision does not mention Despite the fact that the Clubs parking was not approved as a transitional

use, the City of Miami nevertheless warned the Club that the new Miami 21 Code
required the Club to apply for a public hearing approval in order to continue the parking -lot use on the Property. T., pg. 55, 9. Thcreaer, the Club applied for the

public hearing to extend the parking lot use. E Exhibit J.

PROCEDURAL HISTORY In 1965, the Clubs predecessor-in-title applied for a conditional use approval to allow the Parking Lot Property to be used for off-street parking facilities in conjunctionrwith the building on the Commercial Lot and to allow an opening on to N.E. 80 Street to provide vehicular ingress and egress to the surface parking area. The City of Miami Commission approved the application by Resolution No. 3694-2 (Conditional Use Resolution) that same year. Q; Exhibit A. In granting the Conditional Use Resolution, the City Commission recognized that it was in the interest of the general welfare of the City of Miami to grant the
Conditional Use on the grounds that a refusal would result in practical difcuities

and unnecessary hardship to the owners of the residential lot. Q23; Exhibit A.

The City has operated under "multiple sets of zoning regulations in the last

fty years. The City adopted Ordinance 6871 governing zoning in 1961. Exhibitl-I. The 1961 ordinance was the subject of multiple amendments prior to 1982, at which point it was repealed and replaced by a new comprehensive code, known as Ordinance 9500. Ordinance 9500 was subsequently replaced by another comprehensive code, known as Ordinance 11000, in 1991. Finally, Ordinance 1 1000 wasreplaced by the Miami 21 Code in 2009. .

The Conditional Use Resolution was approved under the applicable

regulations of Ordinance 6871, as amended, in 1965. Specically, the Parking Lot Property was approved pursuant to Ordinance No. 6871, Article V, Section 1(6)(c) which describes the conditional use to permit off-street parking facilities within the
residential district as follows:

ARTICLE V ONE FAMILY DWELLING - R-1, R-IA, R-1B DISTRICTS SECTION 1,. USE REGULATIONS N0 building or structure, or part thereof, shall be erected, altered, or used, or land or water used, in Whole or in part, for other than one or more of the following uses: (6) The following uses if approved as Conditional Uses:

(c) Open parking lots for parking of A private passenger vehicles accessory
to a principal use.

The parking lot shall be arranged, maintained and used in accordance with requirements set forth in Article XXI,,Secti0n 8 (I).

Conditional uses required a public hearing approval under Ordinance No. 6-871 in 1965 when the Conditional Use Resolution was approved. Exhibit A. However, the City zoning regulations during this time also permitted What were kn-own as transitional uses. Unlike the Club's parking lot property, which required a public hearing, all-transitional uses were permitted as of right under
Ordinance N0. 6871. A transitional use was described as follows:

(90) TRANSITIONAL USE. A USE automatically permitted as an exception on a lot in an R (Residential) District, which SIDE LOT LINE abuts a C-1, C1-A, C-2, C-3, C-4,C-5, W-R,W-1, I-I,I-2 District, as Described and limited in Article IV, Section 26. Section 26 further provides: In any "R" (Residential) District, a transitional use shall be permitted on a lot the side lot line of which adjoins, either directly or across an alley, any commercial or industrial district. The permitted transitional uses for any such lot in an R-1, R-1A, or R-1B District shall be any use permitted in an R-2 -District or an R-CA District. The permitted transitional use for any such lot in an R-2 or R-3A District shall be any use permitted in an R-3, or R-CA District. The permitted transitional _uses for - . 8 BERCOW RADELL G FERNAN DEZ
II. ZONING, LAND use AND ENVIRONMENTAL LAVV

any such lot in an R-3, R-4, or R-5 District shall be any use permitted in a R-C District.

xbibit H, pg. 2. - in October 2009, forty six years after the Parking Lot Property was approved, the Miami 21 Zoning Code was adopted. Miami 21 provided an automatic twenty (20) year extension to all non-conforming uses except "transitional uses" that allowed off-street parking abutting T-3 R (residential areas) approved under prior zoning -codes. To continue a transitional use, the Code

requires the owners to seek an Exception before the City Commission.

Specically, Article 7.2.6 provides: a. Time Limitation Where, at the effective date of the adoption or amendment of this Code, a lawful Use exists which would not be permitted under this Code, the Use may be continued for twenty (2) years consistent with this section. Upon application, the City Commission may grant by Exception an extension . for continuance of the use for an additional term of up to twenty (20) years. However, accessory parking abutting T3-R areas that was approved as transitional Uses under prior zoning codes and were legally nonconforming prior to the adoption of this Code will not have a continued automatic twenty-year (20) year extension asprovided in this section, but shall instead seek an Exception before the City Commission within sixty (6) days of renewal of a Certicate of Use.

Despite the fact that the Clubs "off-street parking and access was approved

as a conditional use, rather-than a transitional use, the City of Miami advised the

club that in order to retain the use of the Parking Lot Property and their only

vehicular access,-Article 7.6.2 of the Miami 21 Code required that they seek an Exception frorh the City Commission, within 60 days of the 2011 Certicate of
Use renewal. T., pg. 55. The Club submitted the application for Exception on
January 7, 2011.

xhibit I. The Citys public hearing application required the submittal of a site plan and landscape plan and the Club submitted plans that proposed modications to the previously approved conditional use plan, including various landscape enhancements to the parking lot and the swale area along N.E. 80 Street. %Exhibit B, pg. 8, 9. Prior to the hearing on the Clubs application, the -Planning Department issued its Analysis. The analysis was based on the transitional use provision described above, irrespective of the fact that the parking on the Parking Lot Property was approved as a conditional use. Exhibit J. In early March 2011,

the Club wrote to the abutting property owner. to the west in an attempt to acquire
access. onto N.E. 79 Street via a shared access agreement. On March 24, 2011 the

Commission deferred the application to allow the Club additional time to pursue an
alternative to the N.E. 80 Street access. See Exhibit K. The shared access

EX11
agreement would have allowed the Club to use a portion of the abutting property