3bIN THE CIRCUIT COURT IN AND FOR
MIAMI -DADE COUNTY, FLORIDA
APPEALS DIVISION
CASE NO:
SPECIAL MASTER CASE
NOS: 09 -445 AND 09 -446
CITY OF SOUTH MIAMI,
Petitioner,
V.
SOUTH MIAMI HOSPITAL
DEVELOPMENT FUND, INC.,
Respondent.
PETITION FOR CERTIORARI
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Petitioner, City of South Miami, pursuant to Fla.R.App.P. 9.030(c) and
Fla.R.App. 9.100(c)(2), invokes the jurisdiction of this Court and files this Petition for a
Writ of Certiorari directed to the Special Master for the City of South Miami.
STANDARD OF REVIEW
In reviewing the Special Master's decision, this Court must determine [1] whether
procedural due process was accorded, [2] whether the essential requirements of the law
were observed, and [3] whether the Special Master's Order is supported by competent
substantial evidence. Broward County v. G.B.V. Int'l, 787 So. 2d 838, 843 (Fla. 2001).
Petitioner does not contend that due process was not accorded, only that the essential
requirements of the law were not observed, and that the Special Master's Order is
unsupported by competent substantial evidence.
UNDERLYING CITATIONS
The City cited the hospital for violating Section 20 -3.2 (B) which provides that
"no building, structure, land or water areas shall be used or occupied, and no building or
structure or part thereof shall hereafter be erected, constructed, enlarged, reconstructed,
moved or structurally altered except in conformity with all the regulations specified for
the district in which it is located ". Respondent was also cited for violating Section 20-
5.12(F)(1), which provides that "any proposed change which would have the effect of
increasing densities or redistributing square footage or altering the height or use of a
development is a major change."
FACTS
Petitioner, the City of South Miami ( "City "), is a Florida municipal corporation
with jurisdiction to enforce its code of ordinances pursuant to Chapter 162, Fla. Stat. In
1985, the City approved the planned unit development ( "PUD ") for the construction of
South Miami Hospital ( "Hospital ") which is owned and /or operated by the Respondent.
During the December 3, 2002, City Commission meeting Resolution 188 -02 -11537 was
passed approving a major modification of the hospital's existing PUD to authorize the
construction of a medical office building and a parking garage. The site plan approved by
the City Commission at the time of the passage of the resolution showed that 2000 square
ft. on the south side of the garage was designated as retail, to be used as a restaurant, and
an additional 2000 square ft. was to be used for future retail space (hearing transcript,
page 14, lines 14 -24).t
' The Special Master concluded that the City's witness Mr. Youkilis did not testify about any personal
knowledge of this case (Order, pg. 3) and that the City failed to call any witnesses with direct knowledge of
the building of the parking garage (Order, pg. 4). There was no testimony concerning the lack of such
personal knowledge and the Special Master obviously overlooked the fact that Mr. Youkilis did have such
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A month later, on January 21, 2003, the hospital's site plan showing the same
4000 total square feet of retail space was approved by the City's Environmental Review
and Preservation Board. Prior to the approval by the Environmental Review and
Preservation Board the hospital submitted changes to the site plan showing a change in
the use of the ground floor of the parking garage showing the electrical, boiler and
mechanical room replacing 2000 square ft. of the retail space which had been approved
by the City Commission. Other than this submittal to the Environmental Review and
Preservation Board there is no record evidence of any request by the hospital to modify
the ground floor uses (hearing transcript, page 19, lines 14 -18 and page 63, line 24 - page
64, line 2). Most significantly, the Environmental Review and Preservation Board is a
City board which does not have the authority to modify a site plan approved by the City
Commission.
RELIEF SOUGHT
Petitioner, City, seeks an Order from this Court granting a Writ of Certiorari
quashing the decision of the Special Master.
ARGUMENT
Section 20- 5.12(F)(1) provides that any proposed change to a site plan which
would alter the use of the development is considered a major change. A major change
requires public hearings on the proposed change before the planning board and
subsequently the City Commission. Section 20- 5.12(F)(1)(b). If the change to a site plan
is considered minor, the City Manager may make a decision on the application for such
change and is required to provide the owner with a copy of that decision. Additionally, if
personal knowledge as having been with the City's planning department since 1999 (Hearing transcript, pg.
11, lines 14 -17).
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the City Manager approves the minor change he must submit a copy of the notice
approving the change to the City Commission.
The hospital never sought nor obtained the proper approval of the amendment to
the site plan either as a minor change or as a major change. Specifically, it is undisputed
that there were no hearings before the City Commission or the City's Planning Board to
approve the change to the hospital's site plan to authorize the replacement of retail space
with a boiler /mechanical room. Moreover, even if the change to the site plan could be
considered a minor change, the hospital presented no evidence that (1) it submitted any
application for a site plan change to the City Manager, (2) that the City Manager made a
decision on such application and provided the hospital with a copy of that decision, and
(3) that the City Manager approved the minor change and submitted a copy of the notice
approving the change to the City Commission. Virtually all of the City's records are
public records available to the hospital upon a mere request pursuant to Chapter 119, Fla.
Stat., and the hospital certainly could have submitted the aforementioned evidence of the
approval of any minor change to its site plan, if such approval existed, but the hospital
never submitted any such application or approval by the City Manager into evidence. In
fact, the reason that no such approval of a minor change was submitted is because no
such approval ever existed (hearing transcript, pg. 22, lines 3 -10). Thus, the hospital
cannot seriously contend that it either went through the approval process to obtain a
major change or a minor change to authorize the alteration of the site plan to permit the
replacement of retail space with a boiler /mechanical room.
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APPLICABLE LAW
The Respondent's arguments, accepted evidently by the Special Master, were that
various city officials approved and signed off on permits to construct the
boiler /mechanical room and that several years elapsed before the City discovered this
error and cited the hospital for improperly replacing retail space with a boiler /mechanical
room. However, neither one of these arguments provide grounds to uphold the Special
Master's decision.2
Specifically, as previously set forth above, the city code provides guidelines
which must be followed in order to obtain an approval of a PUD site plan amendment.
Neither the process to obtain a major change nor the process to obtain a minor change
was followed by the hospital. To avoid the clear requirements of the city code regarding
site plan changes, the hospital argues that various city officials signed off and/or made
inspections of the boiler /mechanical room and did not issue stop work orders for the
construction.
The hospital is obviously not a mom and pop operation and has competent
counsel. Furthermore, the law in general provides that one who deals with a municipality
is charged with knowledge of limitations and requirements in city ordinances and when it
takes action in violation of the city's code, as the hospital did in this instance, it does so at
its own peril. See Godson v. Town of Surfside, 8 So.2d 497, 498 -99 (Fla. 1942); City of
Hollywood v. Witt, 789 So.2d 1130 (Fla. 4`h DCA 2001); Town of Indian River Shores v.
Coll, 378 So.2d 53 (Fla. 4th DCA 1979).
' Ironically, the Special Master seemed to be headed in the right direction during the hearing when he stated
"I think there is no doubt that there was a change" (hearing transcript page 79, lines 7 -9)... "if its a major
change, it has to go back before the city commission, which it didn't. If it's a major (meant minor change)
change that could have been signed off by just the city manager" (hearing transcript page 79, lines 19 -23).
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In addition to the hospital not being able to rely legally upon any permits issued in
error by the city's officials, there is a well- established line of law which prohibits the
application of the doctrine of lathes against a city in cases such as the situation at hand.
See Montsdoca v. Highlands Bank and Trust Co., 95 So. 666, 668 (Fla. 1923). In Corona
Properties of Florida, Inc., v. Monroe County, 485 So.2d 1314 (Fla. 3rd DCA 1986), a
zoning official issued a building permit to a property owner based upon his determination
that the property owner's right to a second building permit had vested, despite the fact
that an amended ordinance decreased the density of permitted dwelling units on the
property. The owner originally applied for a permit under the old ordinance,' secured a
building permit, commenced work on the development and then abandoned the project.
The court held that where a zoning official did not have the authority to issue a building
permit, the county could not be estopped to revoke the permit.
The same rule applies even where a structure has been built relying upon the
approval of the city where the construction violates a city ordinance. See Town of
Lauderdale by the Sea v. Meretsky, 773 So.2d 1245 (Fla. 4th DCA 2000); Dade County
v. Gayer, 388 So.2d 1292 (Fla. 3rd DCA 1980). Moreover, the doctrine of estoppel
should be invoked against the government only in exceptional circumstances. North
American Co. v. Green, 120 So. 2d 603, 610 (Fla. 1959); Watson Clinic, LLP v.
Verzosa, 816 So.2d 832, 834 (Fla. 2nd DCA 2002). To invoke such doctrine, the hospital
was required to prove the City made a representation as to a material fact that is contrary
to the City's later position; that the hospital relied on that representation; and that it
changed its position detrimentally because of the City's representation and the hospital's
reliance on it. Dreamland Ballroom & Soc. Dance Club, Inc. v. City of Fort Lauderdale,
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789 So. 2d 1099, 1102 (Fla. 4`h DCA 2001). In the case at bar, the City mistakenly signed
off on permits and made inspections, but never affirmatively misled the hospital or gave
it any advice on the requirements for obtaining approvals for changes to PUD site plans.
CONCLUSION
Since the Respondent hospital did not show that the process for a major or minor
change was followed by it, the hospital was not entitled to build a boiler /mechanical
room in violation of the site plan approved by the City Commission. Therefore, the
Special Master's decision is contrary to the essential requirements of the law and is
unsupported by competent substantial evidence.
CERTIFICATE OF SERVICE
I certify that a copy hereof and the Appendix to this Petition were mailed to Ines
Marrero - Priegues, Esq., Holland and Knight, LLP, 701 Brickell Ave., Suite 3000, Miami,
FL 3 313 1, on February 8, 2010.
MARK GOLDSTEIN
Fla. Bar No: 882186
111 NE 1st St., Third Floor
Miami, Florida, 33132
(305) 390 -2341
Pl