2015-10-19 Wal-Mart's Response to Petition for Writ of Certiorari (1)

7/26/2019 2015-10-19 Wal-Mart's Response to Petition for Writ of Certiorari (1)

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IN THE THIRD DISTRICT COURT OF APPEALSTATE OF FLORIDA

Case No. 3D15-2208

______________________________________________________

On Second-Tier Petition for Writ of Certiorari from the Circuit Court

Appellate Divisions Per Curiam Denial of Petitioners First-TierPetition for Writ of Certiorari

(Case No. 14-492 AP)______________________________________________________

JACOB PFEFFER, et al.,

Petitioners,

v.

CITY OF MIAMI, FLORIDA and WAL-MART STORES EAST, LP,

Respondents.

WAL-MART STORES EAST, LPSRESPONSE TO PETITION FOR A WRIT OF CERTIORARI

Joan Carlos Wizel

Mark A. EmanueleRichard LydeckerManuel A. Diaz

LYDECKERDIAZ1221 Brickell Avenue, 19th Floor

Miami, Florida 33131(305) 416-3180

Counsel for Respondent

Wal-Mart Stores East, LPOCTOBER 19,2015


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Respondent, Wal-Mart Stores East, LP (Wal-Mart), responds to the

Petition for Writ of Certiorari (the Petition) filed by petitioners Jacob Pfeffer,

Catalina Gutierrez, Monika Pobog-Malinowska, Vintage Liquor and Wine Bar II,

Rosi Barrios, Blo Dry Bar Florida, LLC n/k/a Head Kandi, LLC, Sandirose

Madger, Yasmine Garate, Anthony Davide, David Le Batard, and Lebo Studios

(collectively Petitioners), as follows.

INTRODUCTION

Petitioners are opponents to the construction of a Wal-Mart store in

Midtown (the Project), even though this location is specifically zoned for a big

box retail facility. For several years now, in multiple community meetings, public

hearings, and court proceedings, Petitioners have objected to a myriad of aspects of

the Project in an effort to halt the issuance of a Class II Special Permit (the

Permit) to allow Wal-Mart to build the Project. The case has been once before

the City of Miamis Planning and Zoning Appeals Board (PZAB), twice before

the City of Miami Commission (the Commission), twice before the Circuit Court

Appellate Division (the Circuit Court), and is now hopelessly before this Court.

PZAB and the Commission rejected all of Petitioners multiple objections to

the Project. And the Circuit Court, in an opinion issued on October 15, 2014, in

Pfeffer v. City of Miami, et al., case number 14-004 AP (Pfeffer 1), similarly

rejected all but one of the objections raised by Petitioners on a very narrow,


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limited, andfor purposes of this Courts reviewinsignificant issue: that the

City of Miami (the City) was incorrect in relying on its long-standing

interpretation of its zoning code to permit the Project to have five interior loading

berths instead of requiring the number of interior loading berths to be exactly three.

That decision was not appealed and is the law of this case. The City and Wal-Mart

accepted the circuit courts ruling, and Wal-Mart conformed its Permit application

to meet Pfeffer 1s holding by reducing the interior loading berths fro m five to

threegiving Petitioners what they wanted: a Permit application that was fully

compliant with the City Code.

Then, on remand from Pfeffer 1, the Commission considered Petitioners

appeal in light of Pfeffer 1, and, based on its de novo review of the single issue

before it, and with the recommendation of the Planning Director, (on a unanimous

vote) it issued Resolution number 13-01030iia on November 20, 2014, affirming

the decision of PZAB to deny the appeal of the Permit and issuing Final Approval

for the Permit with only three loading berths.

Somehow not satisfied, Petitioners filed a second petition for writ of

certiorari to the Circuit Court, presenting a baseless argument (for which they

presented no legal or statutory authority) that the Commission had no jurisdiction

to entertain the Permit application on remand and was required to force Wal-Mart

to either submit an entirely new application for a Class II Special Permit and start


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the (now over three-year long) process from scratch or submit an application for a

Major Use Special Permit (MUSP) requesting a variance for the five loading

berths that Wal-Mart did not want or seek. At oral argument, Petitioners counsel

(at the time) conceded that the Permit application was compliant with the City

Code requirements and could not articulate any prejudice that would be suffered by

Petitioners even if the court ignored Petitioners incorrect legal argument. Two

business days after the oral argument, the Circuit Court issued a per curiam denial

of the petition.

Now, Petitioners seek to misguide this Court into exercising discretionary

jurisdiction. Realizing that the position advanced in the Circuit Court on first-tier

certiorari review below was baselessand that on second-tier certiorari review it

will meet the identical fate that it did before the Circuit CourtPetitioners, now

represented by new counsel, have decided to abandon the position held in the

Circuit Court and improperly present arguments about the proceedings in the

Commission never before raised. The law in Florida is clear that this is wholly

impermissible. Thus, the petition filed here is frivolous. Petitioners doomed

request should be rejected, and this Court should deny the petition, exercising

jurisdiction only to award sanctions and costs against Petitioners and their new

counsel for their unreasonable and vexatious multiplication of the proceedings with

the misguided hope that entangling the Project in this baseless proceeding would


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cause the Permit to expire and force Wal-Mart to start a new application process

from scratch.1

STATEMENT OF THE ISSUE PRESENTED

Whether Petitioners can show that the Circuit Courtwhich issued a per

curiam denial of Petitioners petition for writ of certiorarideparted from the

essential requirements of the law by applying the incorrect law on points never

presented to the Circuit Court but now raised for the first time in this Court.

STATEMENT OF THE CASE AND FACTS2

Over three years ago, on August 21, 2012, Wal-Mart submitted its

application to the Department of Planning and Zoning for the Permit to allow

construction of the Project in the property located at 3055 North Miami Avenue.

SeePfeffer 1, R.App. B at 2. This location is zoned for a big box retail facility as

1 In the crowdfunding campaign webpage Fight Walmart in Midtown

Miami, created by Petitioner Jacob Pfeffer and Grant Stern to help fund thecontinued litigation against the City and Wal-Mart in this Court, the main message

is that Walmarts Permit Expires on November 21st, 2015, But We Need You ToDonate Now For Legal Fees! See R.App. D, available at

https://www.indiegogo.com/projects/fight-walmart-in-midtown-miami#/story.Evidently, Petitioners are unaware that their motives are misguided and their

efforts futile given that the Permit has been extended until November 21, 2017.R.App. M.2 For the convenience of the Court, Wal-Mart will, to the extent practicable,

use the Appendix provided by Petitioners; Petitioners Appendix will be cited as

App. __at p. __,denoting the Tab and page number. Wal-Marts (supplemental)Appendix filed concurrently with this Response will be similarly cited as R. App.

__ at p. __, denoting the Tab and page number.
https://www.indiegogo.com/projects/fight-walmart-in-midtown-miami#/storyhttps://www.indiegogo.com/projects/fight-walmart-in-midtown-miami#/story


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Midtown Miami West under the City of Miami Zoning Code. See id.; see also

Section 627.2.4, City of Miami Zoning Code (Miami 21). Almost a year later, on

August 12, 2013after making referrals to the Urban Development Review

Board, the Neighborhood Enhancement Team Office, the Department of Public

Works, and the Office of Transportation, and after holding multiple

community/neighborhood meetingsthe Planning Director (the Director)

approved the Permit.Pfeffer 1, R.App. B at 1-3.

Petitioners then appealed the Directors decision to the PZAB on August 27,

2013. App. 6;Pfeffer 1, R.App. B at 2. After a public hearing was held before the

PZAB on October 2, 2013, the PZAB denied the appeal of the Permit. Pfeffer 1 ,

R.App. B at 2. Petitioners then appealed the PZABs decision to the Commission

on October 17, 2013. App. 7; Pfeffer 1, R.App. B at 2-3. After holding a de novo,

quasi-judicial public hearing on November 21, 2013, the Commission unanimously

denied the appeal and approved the Permit. Pfeffer 1, App. B at 3. A resolution

reflecting the Commissions decision was issued on December 2, 2013. R.App. E

at 1-2.

On January 2, 2014, Petitioners filed a Petition for Writ of Certiorari in the

Circuit Court, challenging the resolution of the Commission. After full briefing,

oral argument, and supplemental briefing, the Circuit Court rejected six (6) of the


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seven arguments Petitioners presented in challenging the Permit.3 The Circuit

Court, however, agreed with one (1) of their narrow arguments: that the

Commission deviated from the essential requirements of the law by approving a

permit that, pursuant to the Citys long-standing interpretation of Section 627.2.15

of the Code, allowed the Project to contain five (5) loading berths instead of three

(3).Pfeffer 1 , R.App. B at 8-10. The Circuit Court held that Section 627.2.15 could

not be interpreted, as the City had done for years, to establish a minimum

requirement of loading berths, but instead required a definite number of three (3)

3 Specifically, the circuit court held in favor of the City and Wal-Mart that:

(1)

the Director was not bound by the UDRB and NET Office

recommendations, and he did consider those recommendations and his finaldecision was affected and limited by those reports (Pfeffer 1, R.App. B at 4-5);

(2)

the requirements of Section 1305 applied to the Commissions review on

appeal, but the written findings of the Commission were sufficient to satisfySection 1305 as a matter of law (Pfeffer 1 , R.App. B at 6-7);

(3)

since the Commission made its own findings and determination, Petitionerschallenge to the Directors findings was moot (Pfeffer 1, R.App. B at 5, n.3);

(4)

there was sufficient evidence in the record to support the Commissions

decision that the Project met the building continuity requirements based onthe experts interpretation that continuous in design refers to architectural

elements, not style (Pfeffer 1 , R.App. B at 8-9);

(5)

there was sufficient evidence in the record to support the Commissionsdecision that the Project met the requirements for active pedestrian usagefrontage (Pfeffer 1 , R.App. B at 8-9); and

(6)

there was sufficient evidence in the record to support the Commissions

decision that the Project met the requirements for liner uses and setbacksbased on the expert testimony finding that parking spaces were setback 85

feet (Pfeffer 1, R.App. B at 8-9).


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loading berths. Id.Thus, the Circuit Court quashed the Commissions Resolution

and remanded the case to the Commission for further proceedings consistent with

that ruling. Pfeffer 1, R.App. B at 10; see also R.App. C (Mandate issued on

October 31, 2014) at 1.

Heeding to the circuit courts decision, in anticipation of appearing before

the Commission on remand from the Circuit Court, Wal-Mart and the Citys

Department of Planning and Zoning agreed to conform the plans for the Project to

provide only for three (instead of five) loading berths, consistent with the courts

interpretation of Section 627.2.5.

A de novo, quasi-judicial public hearing was then held on remand before the

Commission on November 20, 2014. R.App. F (Tr. of Nov. 20, 2014 Commission

Hearing). At the hearing, the Director testified about the conformed Project as

follows:

I am under the impression that we have been directed by

the court to correct an error that was made in the Class IISpecial Permit, which my department issued and which Isigned.

So I understand my choices to be very limited today as

your Planning and Zoning Director. And my choices arebasically only to bring back to you a project that has a

total of three loading berths, because the Court decidedthat total is to be interpreted as meaning no more than, no

less than three loading berths. And this is, in fact, whatthe applicants, the original applicants, have done.

They have presented to us, and you will find in yourpackets, documents that show that where there were once


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five loading berths, there are now three loading berths.And, of course, because we have to do our due diligence,

we had to make sure that those three loading berths thatthe document show are functional, which is why you will

see in some of the drawings there are maneuveringdiagrams.

So there are three functional loading berths presently in

this particular establishment. By doing so, we believethat we have complied with the courts order. And we

submit to you then that the revised set of documents, andthe analysis and findings that are attached to thosedocuments are worthy of your approval and corrective of

the defect found by the courts.

R.App. F at 7:128:21. He assured:

The modifications made to the plans render the threeremaining loading berths fully functional. There are

maneuvering studies that prove that.

In addition to that, we find that the three loading berths,

as provided, comply with what we understand this to bethe -- we understand to be the courts mandate, to

interpret the code to mean that, at most, and at least threeloading berths shall be provided. So we are here to verify

that three loading berths, fully compliant with theappropriate sizes and dimensions provided by the zoning

ordinance, have indeed been provided. Plans attached toshow that is the case.

R.App. F at 28:117. The Director concluded,

I think it is important, and perhaps appropriate, to

hopefully clarify something that may be confusing. Andit is this.

I, as your Planning and Zoning Director, stand correctedby the court. I want to assure this Commission that the

mistake made by your Planning and Zoning Departmentis not to have overlooked a variance. That is a rather


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significant issue. And Im here to tell you that has neverhappened and it will never happen, at least under my

watch. Im positive of that.

The reason we stand corrected is, because this court has

found that a longstanding interpretation of the code,which says that the language in Section 627.2.15 Off-Street Loading, which says for nonresidential floor area

up to 250,000 square feet, 3 berths total.

Im humbled. I, my predecessors, had always opined that

that meant three was a minimum, and we could certainlyexceed it. It turns out, as the court says, that the plain

meaning of the word total makes it so that it cannot beinterpreted reasonably as being more than three. We

stand corrected. Were humbled by it.Im here to tell you, though, and this is the importantthing, that had this been correctly interpreted to meanthat only three loading berths were required, you would

have had before you, one year ago, exactly the projectthat you are affirming today.

R.App. F at 82:1583:25.

Petitioners did not present any argument to challenge the plans conformed to

provide for only three loading berths. R.App. F. The only issuePetitioners raised at

the hearing was the authorityof the Commission to approve the Permit based on

the Project that was conformed to provide the three loading berths they themselves

had previously requested. R.App. F. Petitioners claimed that, even though the

Project now conformed to the three loading berths requirement in alignment with

Pfeffer 1, on remand the Commission was required to force Wal-Mart to either

submit an entirely new application for a Class II Special Permit and start the


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process from scratch or submit an application for a MUSP requesting a variance

for the two additional loading berths that Wal-Mart did not want. R.App. F. The

Commission carefully considered and rejected Petitioners position, and, relying on

Pfeffer 1 , voted unanimously to affirm the decision of the PZAB to deny the appeal

and to issue final approval (Final Approval) of the Permit with only three

loading berths. R.App. F at 85; App. 9.

On December 16, 2014, Petitioners filed a second petition for writ of

certiorari in the Circuit Court, seeking first-tier certiorari review of the

Commissions resolution and presenting the same and only argument they made to

the Commission: that on remand from Pfeffer 1, the Commission was required to

force Wal-Mart to either submit an entirely new application for a Class II Special

Permit and start the entire process from scratch or submit an application for a

MUSP requesting a variance for the two additional loading berths that Wal-Mart

did not want. See R.App. G; R.App. H; R.App. K. The parties fully briefed the

issues and presented oral argument before a three-judge panel that was intimately

familiar with the casetwo of the three judges on the panel were on the panel of

judges that decided Pfeffer 1. See id.;see also R.App. I; R.App. J; R.App. L.At

oral argument, Petitioners counsel conceded that the Permit application approved

by the Commission was fully compliant with the City Code requirements and

could not articulate any prejudice that would be suffered by Petitioners even if the


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court ignored their incorrect legal argument. On August 24, 2015, two business

days after the oral argument, the Circuit Court issued a per curiam denial of the

Petitionerspetition. R.App. A.

Petitioners then filed this petition for second-tier certiorari review on

September 24, 2015.

STANDARD OF REVIEW

The standard of review on second-tier certiorari review is well settled:

The scope of certiorari review is very limited, as second-tier certiorarireview is not to be merely a second appeal.Pharmcore, Inc. v. City ofHallandale Beach, 946 So. 2d 550, 552 (Fla. 4th DCA 2006). In

second-tier certiorari review, a district court of appeal determines onlywhether [1]the circuit court afforded procedural due process and [2]

applied the correct law. City of Deerfield Beach v. Vaillant,419 So.2d624, 626 (Fla. 1982). Applying the correct law incorrectly does not

warrant certiorari review. See Ivey v. Allstate Ins. Co.,774 So. 2d 679(Fla. 2000). [T]he departure from the essential requirements of the

law necessary for the issuance of a writ of certiorari is somethingmore than a simple legal error. Id.at 682. District courts of appeal

should exercise the discretion to grant certiorari only when there hasbeen 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).

Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d 1121, 1125 (Fla. 4th

DCA 2007).4

4 See also Seminole Entmt, Inc. v. City of Casselberry, Florida, 813 So. 2d

186, 188 (Fla. 5th DCA 2002); Martin Cnty. v. City of Stuart, 736 So. 2d 1264,

1267 (Fla. 4th DCA 1999). Cf. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d1086 (Fla. 2010) (A reviewing court on appeal may correct any and all errors

below, whether jurisdictional, procedural, or substantive, and may modify, reverse,


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To find that the Circuit Court did not adhere to the essential requirements of

law, this Court must find that there is an inherent illegality or irregularity, an

abuse of judicial power, an act of judicial tyranny perpetrated with disregard of

procedural requirements, [which] result[ed] in a gross miscarriage of justice.

Jones v. State, 477 So. 2d 566, 569 (Fla. 1985). See City of Tampa v. City Nat.

Bank of Florida, 974 So. 2d 408, 410-11 (Fla. 2d DCA 2007) (noting that

evaluation of an alleged departure from the essential requirements of law requires

consideration not only of whether a legal error has occurred but also of whether the

error is so serious as to constitute a violation of a clearly established principle of

law resulting in a miscarriage of justice.) (quotation omitted) ; Broward Cnty. v.

G.B.V. Intl, Ltd., 787 So. 2d 838 (Fla. 2001) (The role of the reviewing court on

a writ of certiorari is to halt the miscarriage of justice, nothing more.).5

Therefore, as a practical matter, the circuit courts final ruling in most first-tier

cases is conclusive because second-tier review is so extraordinarily limited.

Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003)

(citing Florida Power & Light Co. v. City of Dania , 761 So. 2d 1089, 1092 (Fla.

or remand a judgment; in contrast, a district court cannot correct just any error that

may have occurred below through a second-tier certiorari proceeding).5 See also Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195,

199 (Fla. 2003) (explaining that a ruling constitutes a departure from the essentialrequirements of law when it amounts to a violation of a clearly established

principle of law resulting in a miscarriage of justice) (citation and quotationomitted); Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)

(same).


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2000));see also City of Tampa v. City Nat. Bank of Fla. , 974 So. 2d 408 (Fla. 2d

DCA 2007) (same).

ARGUMENT

The Court should summarily deny this petition, as all of the arguments

presented by Petitioners in the petition, except a portionof the first argument (at

pages 35-36), present new objections to the Commissions actions being raised for

the first time on second-tier certiorari review in this Court. And the only issue

actually presented to the Circuit Court below is frivolous.

It is a well-established principle of appellate law that, as a general rule, a

reviewing court will notconsider claims of error that are raised for the first time on

appeal. Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) (citingDorminey v. State,

314 So. 2d 134 (Fla. 1975)); Saka v. Saka, 831 So. 2d 709 (Fla. 3d DCA 2002). As

Florida courts have explained, [i]t is the function of the appellate court to review

errors allegedly committed by the [lower] court, not to entertain for the first time

on appeal issues which the complaining party could have and should have, but did

not, present to the [lower] court. Hernandez v. Kissimmee Police Dept., 901

So.2d 420 (Fla. 5th DCA 2005) (citing Saka).6This principle undeniably applies

6 Sunset Harbor Condo. Assn v. Robbins, 914 So. 2d 925, 928 (Fla. 2005)

(citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999));Kemp v. McDonough, 955 So. 2d 635, 637 (Fla. 1st DCA 2007) (failure to squarely

present the issue to the lower court precluded consideration of the issue on


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with as much force, if not more, in second-tier certiorari review: complaints about

the proceedings before the Commission that were not raised to the Commission or

in the Circuit Court on first-tier certiorari review, are beyond the scope of second-

tier certiorari review and cannot be raised or addressed by this Court. See Town of

Jupiter v. Byrd Family Trust, 134 So. 3d 1098, 1100 (Fla. 4th DCA 2014)

(rejecting the arguments raised for the first time in the petition on second-tier

certiorari, aptly reasoning that [f]or the purpose of second-tier certiorari, the

circuit court cannot be said to have departed from a clearly established principle of

law when it failed to consider or apply a point not raised in the briefs.) ; Snyder v.

City Council of City of Palmetto, 902 So. 2d 910, 911-12 (Fla. 2d DCA 2005)

(recognizing the exceedingly limited scope of review on second-tier certiorari

review and explaining that where the issues presented were not issues addressed by

the City Council, they were not properly before the circuit court.). See also

Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 103 So. 3d

866 (Fla. 4th DCA 2012).7

certiorari review);Reznik v. FRCC Prods., Inc., 15 So. 3d 847, 849 (Fla. 4th DCA2009) (explaining the practical necessity and basic fairness rationale for the rule).7 Cf.Feng Chai Yang v. U.S. Atty. Gen. , 574 F. Appx 885, 886-87 (11th Cir.

2014) (dismissing the petition for review of the Board of Immigration Appeals

decision with respect to arguments which were not properly raised before theBoard of Immigration Appeals); AmayaArtunduaga v. U.S. Atty Gen., 463 F.3d

1247, 1250 (11th Cir. 2006) (same).


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Here, Petitioners ignore this long-standing rule, and, after retaining new

counsel, have come up with a multitude of new issues that were never before the

Commission or the Circuit Court on first-tier certiorari review.

I.

Petitioners failed to present below their (incorrect)argument that, in conforming its Permit application to meetthe loading berth requirement of Pfeffer 1, Wal-Mart was

required to resubmit the application under Code Section

1505.1, and as such, it is waived.

In the Argument section 2.A (Pet. at 36-39), and Argument section 2.B.1

(Pet. at 39-45), Petitioners present a new issue based on Code Section 1505.1.

Specifically, Petitioners claim that:

[I]f there was in deed [sic] any change or modification in Wal-Marts

application after the Circuit Court ruling, or, if Wal-Mart intended toamend the proposal ostensibly to modify the number of loading

berths in an effort to comply with the Special Permit requirementswithout a variance, it was required to resubmit the application under

Code 1505.1, governing Requirements concerning changes inoriginal applications after final approval.[] However, the Circuit

Court failed to apply the correct law in . . . ignoring the CircuitCourts quashal and mandate and making up its own procedure on

remand that ignored the clear provisions of the City Code requiringWal-Mart to submit its application anew via Section 1505.1 . . . .

Pet. at 38-39. See also Pet. at 39-45 (titled, Code Section 1505.1, Governing

Changes in Original Applications After Final Approval, Required Wal-Mart to

Resubmit Any Modifications in Accordance and Follow the Procedures Mandated

Thereunder) (in which Petitioners claim that the Circuit Court departed from the


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essential requirements of law in failing to enforce Code Section 1505.1 governing

Requirements concerning changes in original applications after final approval.).

Petitioners never made this argument to the Commission or the Circuit Court

on first-tier certiorari. In fact, Section 1505.1 is not even cited or mentioned

anywhere in the Petitioners petition for writ of certiorari or their reply in support

thereof filed in the Circuit Court below. If Petitioners truly believed that Wal-Mart

was required to follow Section 1505.1 in conforming the Permit application to the

requirement established in Pfeffer 1, they should have raise this issue belowfirst

to the Commission, and then to the Circuit Court on first-tier certiorari review.

Instead, Petitioners advanced other arguments, which were fully considered and

rejected. These arguments are improperly presented for the first time on second-

tier certiorari review, and this Court should outright disregard them.

Nonetheless, Petitioners argument based on Section 1505.1 is substantively

wrong. The argument is based on one fatal flaw: the assumption that at the time of

the remand from Pfeffer 1 there was a final approval of the Permit. The

misconception is revealed by the idea Petitioners present elsewhere in their

petition. At pages 36-37 of their petition, Petitioners correctly assert:

As the Supreme Court has held: When the order is quashed, as it wasin this case, it leaves the subject matter, that is, the controversy

pending before the tribunal, commission, or administrative authority,as if no order or judgment had been entered and the parties stand

upon the pleadings and proof as it existed when the order was made


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. . . . G.B.V.[, 787 So. 2d] at 844. Thus the procedural posture of thecase was where it stood at the time of the last Commission hearing. . .

(Emphasis added.) Thus, when the Circuit Court quashed the Commissions

resolution at the conclusion of Pfeffer 1 , and when Wal-Mart conformed its Permit

application to abide by Pfeffer 1s holding, there was obviously no final approval

of the Permit. In fact, in their Statement of Facts, Petitioners acknowledge that the

Final Action Date, i.e., the final approval, was on November 20, 2014at the

conclusion of the Commission hearing at which it approved the conformed Permit

application. Pet. at 33. Section 1505.1 was simply inapplicable; this is most likely

the reason Petitioners never invoked it until now.

Rather, as argued by the City and Wal-Mart in the Circuit Court below, the

Code gives the Commission the authority to approve a Class II Special Permit,

even when the application as originally received did not comply with all of the

requirements under the Code for issuance of such a permit and to impose

conditions for modification of the application to comply with such Code

requirements for approval of the Permit. Specifically, Section 1305 provides that

the Commission may approve, approve with conditions, or deny the pending

application. Section 1305, City of Miami Zoning Code (11000) (emphasis

added).8Similarly, Section 2004 of the Code explains in an appeal from a decision

8 In Pfeffer 1, the circuit court ruled, among other things, that Section 1305

applies to the facts in this case, such that its provisions are applicable to the


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of PZAB, The city commission on review shall have full power to affirm, reverse,

modify, in whole or in part, with or without conditions, the action of the zoning

board or other appealable decision pursuant to this zoning ordinance. Section

2004, City of Miami Zoning Code (11000) (emphasis added).

The plain language of the Code granted the Commission the authority to

approve the Permit, even if the original application required conditions prior to

approval. Petitioners simply cannot show any departure from the essential

requirements of the law, much less one that results in a miscarriage of justice.

Accordingly, the Court should decline to entertain this argument raised for

the first time in this proceeding, but in any event, may reject it on the merits.

II.

Petitioners similarly failed to present below their (incorrect)

argument that the City violated Code Section 2215.2, which,in any event, is beyond the scope of permissible second-tier

certiorari review, and is substantively wrong.

In the Argument section 2.B.2 (Pet. at 45-46), Petitioners present another

new issue based on Code Section 2215.2. Petitioners argue that the City violated

Section 2215.2 in that it allowed Wal-Mart to amend its application to reduce the

number of interior loading berths from five to three nearly two weeks after it had

Commissions appellate review (Pfeffer 1, App. A at 6). That is the law of the case,which Petitioners cannot challenge. See Dougherty ex rel. Eisenberg v. City of

Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009) (collecting cases) (explainingthat the doctrine of the law of the case requires, absent limited exceptions not

applicable here, that questions of law actually decided on appeal must govern thecase in the same court and the trial court, through all subsequent stages of the

proceeding).


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publicly noticed the meeting. Pet. at 46. Once again, Petitioners never made this

argument to the Circuit Court on first-tier certiorari: Section 2215.2 is not even

cited or mentioned anywhere in the Petitioners petition for writ of certiorari or

their reply in support of the petition filed in the Circuit Court below. Thus,

Petitioners cannot establish (or even seriously contend) that the Circuit Court

applied the incorrect law on an issue that was never before it. See Town of Jupiter,

134 So. 3d at 1102. The argument is not proper here, and should be summarily

rejected.

Moreover, this argument in essence asserts an alleged lack of due process

before the Commission, not the Circuit Court. It is well-settled that [a]rgumentsas

to the alleged lack of due process before the city commission . . . are beyond the

scope of the due process review available on second -tier certiorari review.

Seminole Entmt, Inc. v. City of Casselberry, Florida , 813 So. 2d 186, 188 (Fla. 5th

DCA 2002); see Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d

1121, 1127 (Fla. 4th DCA 2007) (Stranahan raises a due process issue in its

petition to this court but its complaint involves the alleged lack of due process

before the DRC and City Commission in refusing to hear extensive testimony from

its witnesses. This argument is beyond the scope of the due process review

available in second-tier certiorari proceedings.);Kirrie v. Indian River Cnty. Code

Enforcement Bd., 104 So. 3d 1177, 1180 (Fla. 4th DCA 2012) (Whether the board


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failed to accord the Kirries procedural due process as a result is not reviewable in

this second tier certiorari proceeding.). Cf. Pharmcore, Inc. v. City of Hallandale

Beach, 946 So. 2d 550, 552 (Fla. 4th DCA 2006); City of Jacksonville v. Huffman,

764 So. 2d 695, 696 (Fla. 1st DCA 2000) (finding that denial of procedural due

process for failing to provide the requisite notice of initial public hearing could not

provide the sole basis for quashing decision of city council permitting construction,

as complainants were provided a full opportunity to present their objections in their

appeal of the commissions decision in a de novo hearing before the land use and

zoning committee). Thus, this argument fails for this additional reason.

Finally, the argument is wrong on its merits. Section 2215.2 provides that,

after notice of a public hearing before the Commission has been given, no change

shall be made in the original application for zoning amendment which would have

the effect of creating substantial differences between the matter advertised and the

matter upon which hearing is actually held. Section 2215.2, City of Miami

Zoning Code (11000) (emphasis added). Petitioners fail to demonstrate how the

minor changes in the Permit application fit this description. In fact, although this

was not an issue presented to the Circuit Court, Petitioners description of the

changes made to conform the application to the requirement announced inPfeffer 1

suggested no substantial difference. Moreover, as explained above, the

Commission had the power to impose the condition limiting the number of loading


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berths to three at the very hearingsee Sections 1305 and 2004, City of Miami

Zoning Code (11000)thereby defeating Petitioners argument and requiring that

the petition be denied.

For these reasons, the Court should decline review of this issue improperly

presented for the first time on second-tier certiorari, but in any case, should reject

Petitioners argument.

III.

Petitioners likewise failed to present below their (incorrect)argument that the City violated Code Section 1305 because

the Commission did not provide written justification for itsactions in denying the appeal.

In the Argument section 2.B.3 (Pet. at 47-49), Petitioners present another

new issue based on the written findings provision of Code Section 1305.

Petitioners attempt to present this issue for the first time in this second-tier

certiorari proceeding. At no point during appellate proceeding before the Circuit

Court did Petitioners assert this issue. Because it has never been raised until this

proceeding, the issue has been waived. Ibidat 12-14. See Town of Jupiter, 134 So.

3d at 1102; Sunset Harbor, 914 So. 2d at 928;Kemp, 955 So. 2d at 637;Reznik, 15

So. 3d at 849. For this reason, this argument has therefore been waived and the

Court should decline to entertain it.

Notwithstanding, the argument is substantively incorrect. The written

findings of fact in the Commissions resolution as to the issue reviewed on


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remandthe applications compliance with the loading berth requirementswere

sufficient. Specifically, in its resolution, the Commission expressly found that:

a.

[O]n October 15, 2014, the [circuit court] issued an opinion[Pfeffer 1] quashing the City Commissions decision as set forth in

Resolution No. 13-0471, and remanded the matter back to the CityCommission for proceedings consistent with the Courts opinion;

b.

the Court found that since the Project provides for five (5) berths

and the Code of the City of Miami, Florida as amended (CityCode[]), requires three (3) berths total that the Commissions

Resolution finding that the Project complied with the requirementsunder the City Code is a departure from the essential requirements

of the law on that issue only;

c.

in accordance with the Courts opinion, the City Commissionconsidered the appeal of the Class II on November 20, 2014;

d.

[the Commission] consider[ed] competent substantial evidence

and testimony presented in the record and at the hearing onNovember 20, 2014;

e. the City Commission after careful consideration of this matter

including evidence admitted into the record at this hearing andincluding the decision of the Court in the above referenced case,

finds the application for the Class II Special Permit meets theapplicable requirements of Zoning Ordinance No. 11000 and

deems it advisable and in the best interest of the general welfare ofthe City of Miami and its inhabitants to affirm the decision of the

PZAB and deny the appeal of Class II as hereinafter set forth.

App. 9.

Simply stated, consistent with the principles announced in Pfeffer 1

regarding the sufficiency of written findings, the Commissions findings above set

forth sufficient information to afford meaningful judicial review. SeePfeffer 1,


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App. A at 7 (citing Lucia Dougherty v. City of Miami and Morningside Civic

Assoc., Inc. 13 Fla. L. Weekly Supp. 959a (Fla. 11th Cir. July 14, 2006).

Accordingly, the Court should decline to entertain this argument raised for

the first time in this proceeding, but in any event, may reject it on the merits.

IV.

Lastly, the only issue actually presented to the CircuitCourt below is a non-issue.

In a small portion of Argument section 2.A (Pet. at 35-36), Petitioners make

the pointless claim that the the Circuit Court departed from the essential

requirements of the law by failing to grant certiorari to correct the Citys erroneous

interpretation of the Circuit Courts mandate [from Pfeffer 1] as requiring specific

direction on remand rather than treating the quashed permit as a nullity. . . . Pet. at

36. Evidently, this argument (based on comments taken out of context) is of no

consequence, as it, by itself, ignores the actions actually taken by the

Commissionits review of the issue de novo, its express reliance on Pfeffer 1, and

its evaluation of the application that had been conformed to comply with Pfeffer

1s holding. In fact, it is evident that the object of this Argument section 2.A is

simply to introduce Petitioners untimely and improper challenge based on Section

1505.1, and that the Commissions comments about the mandate of Pfeffer 1 is

subordinate and trivial even in the context of Petitioners arguments. Nonetheless,

we address this issue separately, as it is the only argument actually advanced in the

Circuit Court on first-tier certiorari review.


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The argument can readily be disposed of by looking at the context of the

statements that Petitioners complain about in their petition, which shows that the

Commission did not require an express direction from the [Circuit Court].

Rather, it simply addressed Petitioners counsels erroneous (and now abandoned)

arguments by pointing out the absence of any actual holding or directive by the

Circuit Court in Pfeffer 1 supporting his position. Specifically, Petitioners only

specific citations to the record on this point refer to a comment by Commissioners

Hardemon (Pet. at 29, 35) and a comment from the City Attorney (Pet. at 30, 36)

both made in response to Petitioners arguments at the hearing.

At the hearing, Petitioners argued (similar to their argument in the Circuit

Court that has now been abandoned) that, even though the Project now conformed

to the three loading berths requirement holding of Pfeffer 1, the circuit courts

order in Pfeffer 1 required the Commission to grant Petitioners appeal or

alternatively required Wal-Mart to either submit an entirely new application for a

Class II Special Permit and start the entire process from scratch or submit an

application for a MUSP requesting a variance for the two additional loading berths

that Wal-Mart did not want.9 In response to this argument, Commissioner

9 Petitioners now for the first time acknowledge the third viable alternative of

modifying the Permit application to conform to the three loading berthrequirement, but advance a waived (and incorrect) argument based on Section

1501.1. See ibid at 14-17.


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Hardemon correctlyremarked, as Petitioners actually describe in their Statement of

Facts:

Now, it doesnt then say, because they departed from the essentialrequirements of the law that the application must be resubmitted as if

it was a -- to be resubmitted as a variance. It does not say that.

What it goes on to say is that for the above stated reasons, we herebyquash the Commission's decision as set forth by resolution and

remand this cause for proceedings consistent herein.

Had the court, to me, in my reading of this said, after they said the

City departed from the essential requirements of the law, if it then saidthat the applicant at the time must then resubmit their application in

accordance--just as the same way it mentioned resubmitted theapplication in your argument, having said that, I would think that then

there would need to be some re-submittance of the application andthat portion has to be reconsidered. I don't see that.

(Tr. at 43-44). There was nothing wrong with Commissioner Hardemons

statements. He was actually correcting (adequately so) Petitioners counsels

erroneous interpretation of Pfeffer 1. In fact, Petitioners no longer faithfully hold

the position presented by Petitioners prior counsel at the Commission hearing and

before the Circuit Court on first-tier review (opting to present an entirely new and

incorrect issue based on Section 1501.1, addressed in pages 14-17 above).

Similarly, the comment from the City Attorney Petitioners complain about

was made in response to Petitioners attempt to misguide the Commission into

believing that the Circuit Courts ruling in Pfeffer 1 required Wal-Mart to submit

an entirely new application for a Special II Class Permit starting all over the (now

three-year) process or required it to submit an application for MUSP to obtain the


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additional loading berths that Wal-Mart was not asking for on remand. In response

to Petitioners arguments at the hearing, Vice Chair Hardemon asked if there was

any case law that held that when a decision from the Commission on a permit was

quashed the applicant had to go back through a full process. (Tr. at 69). Petitioners

counsel acknowledged he had none. Id.Wal-Marts counsel agreed there was no

case law supporting Petitioners view.10

Id.And the City Attorney then remarked:

And if I may just briefly, and I think this will resolve most questions,and we can just hone in the three issue, three berths issue. For the

above stated reason, we hereby quash the Commissions decision asset forth in resolution R-13.

It doesnt say quash everybodys decision. It doesnt say alldecisions. It doesnt say start all over.And more so, we are already

having a de novo hearing today on the one issue that they disagreedwith. So were really beating a dead horse today.

(Tr. at 70). Once again, the record evidences that the City Attorney was not

requiring an express direction from the Circuit Court; quite the opposite: she was

simply noting that the order quashing the Commissions prior resolution did

nothing more than any other quashal order, and specifically, did not require the

extraordinary relief that Petitioners claimed it did (the start of an entirely new

10 In fact, Florida case law illustrates that decisions from the circuit courtquashing resolutions of the Commission are to be remanded to the Commission for

the Commission to consider and address the matters resolved b y the circuit courts(or this Courts) opinion on certiorari review. See Hernandez-Canton v. Miami City

Comn, 971 So. 2d 829, 831 (Fla. 3d DCA 2007); Dougherty ex rel. Eisenberg v.City of Miami, 89 So. 3d 963, 964-66 (Fla. 3d DCA 2012); and Jesus Fellowship,

Inc. v. Miami-Dade County, 752 So. 2d 708, 711 (Fla. 3d DCA 2000).


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application process). Rather, as Petitioners now acknowledge, the matter was

properly before the Commission for review of the Permit application, with the

same authority to impose conditions or modification on a permit application, as if

the prior quashed resolution had never been issued, except, of course, the parties

were bound by the law of the case with respect to the points decided in Pfeffer 1.

In sum, Petitioners argument is frivolous. The Commission properly

approved the Permit after conducting a de novo hearing on the only objection to

the Project that remained after Pfeffer 1and finding that the application had been

conformed to provide for only three loading berths as required by Pfeffer 1 (at

Petitioners request). There is no basis for even suggesting the Circuit Court

departed from the essential requirements of the law by applying the incorrect law

on this matter.

V.

Even looking beyond the myriad of substantial problems

with Petitioners arguments, none rise to the levelrequired for this Courts exercise of second-tierjurisdiction to prevent a gross miscarriage of justice.

As the Florida Supreme Court has advised, district courts of appeal should

exercise the discretion to grant certiorari only 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);see alsoStranahan House, Inc. v. City of Fort

Lauderdale, 967 So. 2d 1121, 1125 (Fla. 4th DCA 2007). This case presents the


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antithesis of the circumstance where it would be advisable for a district court to

exercise its jurisdiction on second-tier review.

Simply put, after a myriad of public administrative and court proceedings in

which Petitioners challenged every aspect of the Project imaginable, the Circuit

Court in Pfeffer 1 held that the Permit application complied with all the

requirements of the City Code in all but one minor respect: the number of interior

loading berths permitted for the Project. It found that the Code required three

loading berths as opposed to the five loading berths that had been approved based

on the Citys longstanding interpretation of the Code section establishing the

loading berth requirement. Had the Permit application been approved with three

loading berths, this case would have seen its end one year ago. Since then, the

application was conformed to the three loading berth requirementgiving

Petitioners the only relief they were entitled to. This single issue was then

reviewed and approved by the Commission and the appeal of that decision was

swiftly rejected after oral argument presided by two of the three same judges who

decided Pfeffer 1. In fact, at oral argument, Petitioners counsel conceded the

Permit as presented to the Commission on remand complied with all Code

requirements and acknowledged Petitioners were not challenging any aspect of the

Permit in that regard (his argument, now abandoned by Petitioners with new

counsel, was a procedural one that was not supported by any case authority).


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Moreover, having had every objection ruled upon by every reviewing body at

public hearings and having obtained what they wanted (at least on the only issue

they prevailed, minute as it may be)three internal loading berthsPetitioners

could not then, and cannot now, show any prejudice, much less a gross miscarriage

of justice, as is required for invoking this Courts certiorari jurisdiction on second -

tier review.

CONCLUSION

For these reasons, the Petition must be denied.

Respectfully submitted this 19th day of October, 2015.

LYDECKER |DIAZ

Counsel for Wal-Mart Stores East, LP1221 Brickell Avenue, 19th Floor

Miami, Florida 33131Tel.: (305) 416-3180

Fax: (305) 416-3190

By: s/ Joan Carlos WizelJoan Carlos Wizel (FBN 37903)E-mail: [email protected]

Mark A. Emanuele (FBN 541834)E-mail: [email protected]

Richard Lydecker (FBN 490555)

E-mail: [email protected] A. Diaz (FBN 310514)E-mail: [email protected]


31/31

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of October, 2015, a copy of the

foregoing was sent via e-mail to:

Samuel J. Dubbin, P.A.

E-mail: [email protected] & Kravetz, LLP

1200 Anastasia Avenue. Ste. 300Coral Gables, Florida 33134

Attorney for Petitioners

Victoria Mendez

John A. GrecoE-mail: [email protected]

E-mail: [email protected]: [email protected]

44 S.W. 2nd Avenue, Suite 945Miami, Florida 33130Attorneys for Respondent City of Miami

By: s/ Joan Carlos WizelJoan Carlos Wizel (FBN 37903)

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the foregoing brief complies with all the

requirements set forth in Florida Rule of Appellate Procedure 9.100.

By: s/ Joan Carlos WizelJoan Carlos Wizel (FBN 37903)

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