Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 12, 2022. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D21-1398 & 3D21-1402 Lower Tribunal Nos. 2019-0095, 19-118 AP ________________ City of Coral Gables, Florida, Petitioner/Respondent, vs. Alliance Starlight III, LLC, Respondent/Petitioner. On Petitions for Writ of Certiorari from the Circuit Court for Miami-Dade County, Appellate Division, Lisa S. Walsh, Daryl E. Trawick, and Maria de Jesus Santovenia, Judges. Holland & Knight LLP, and Frances Guasch De La Guardia, and Anna Marie Gamez; Miriam Soler Ramos, City Attorney, for petitioner/respondent. Genovese, Joblove & Battista, P.A., and Alfredo Gonzalez, Richard Sarafan, and Joseph B. Isenberg, for respondent/petitioner. Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Dennis A. Kerbel and Cristina Rabionet, Assistant County Attorneys, for Miami-Dade County, as amicus curiae. Before FERNANDEZ, C.J., and LINDSEY, and BOKOR, JJ. LINDSEY, J. The City of Coral Gables and Alliance Starlight III, LLC petition for writs of certiorari to quash different parts of an opinion from the circuit court Appellate Division. The opinion granted Alliance’s petition under first-tier certiorari review and quashed Coral Gables City Resolution No. 2019-95, which ratified a settlement agreement. Because neither party disputes that the Resolution was properly quashed, we deny both petitions. I. BACKGROUND This case arose from a development dispute between three property owners on Coral Gables’ Valencia Avenue. In 2018, Biltmore Development, LLC applied to build an 11-story, 124-foot-tall residential condominium. The Board of Architects approved the development over the objection of abutting property owners, the David William Hotel Condominium Association and Alliance Starlight III, LLC, who argued that the proposed development violated the general zoning code’s height restrictions. See City of Coral Gables, Fla., Zoning Code, § 4-104(D)(8)(h) (2019) (restricting the Biltmore property (zoned residential multi-family high density) to a maximum height of 70 feet because its lot size is less than 20,000 feet). However, site-specific 2 regulations permitted developers to build up to 150 feet without mention of lot size. The David William appealed the Board’s approval to the City Clerk, who rejected the appeal as untimely. Afterwards, the David William filed a petition in circuit court for a writ of mandamus or, alternatively, for declaratory and injunctive relief, challenging the dismissal of its appeal as well as the Board’s approval of the development. The City, the Biltmore, and the David William subsequently entered into a settlement agreement under which the Biltmore agreed to reduce the size of its development to 75 feet, the City agreed to grant it a variance— a .7 increase in Floor Area Ratio (“FAR”), and the David William agreed to dismiss its petition. The City Commission held two hearings and approved the settlement agreement, which was ratified by Resolution No. 2019-95 (the “Resolution”). Alliance, which was not a party in the underlying action or to the settlement agreement, submitted a written objection to ratification but did not attend either hearing. After ratification, Alliance petitioned the circuit court Appellate Division for a writ of certiorari to quash the Resolution and set aside the settlement agreement. On first-tier certiorari, Alliance argued for the first time that the increase in FAR constituted impermissible spot zoning. 3 The circuit court granted Alliance’s petition and quashed the Resolution, holding that “the City violated its own zoning code in approving a settlement agreement without requiring proof or making findings that the developer suffered an inordinate or unfair burden.” 1 But the appellate division went further, holding that (1) the variance in FAR constituted impermissible spot zoning; and (2) the Biltmore was permitted to build up to 150 feet, regardless of lot size, because the site- specific regulations govern over general zoning ordinances.2 Neither party disputes that the Resolution was properly quashed; they only take issue with these two holdings. Dissatisfied, both parties moved for rehearing, which the circuit court denied. They then filed petitions for writs of certiorari with this Court, which have been consolidated. II. STANDARD OF REVIEW 1 On first-tier certiorari review, a circuit court “is limited to determining (1) whether due process was accorded, (2) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment were supported by competent, substantial evidence.” Wiggins v. Fla. Dep’t of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1170 (Fla. 2017). The circuit court determined that Alliance’s due process was not violated because it chose not to attend either Commission hearing. 2 Judge Santovenia dissented from the court’s holding that the Biltmore was permitted to build up to 150 feet, arguing it amounted to an advisory opinion because the settlement agreement did not provide that site-specific regulations governed and because the City’s Response did not address that issue. 4 On second-tier certiorari, our review is limited to “whether the circuit court [1] afforded procedural due process and [2] applied the correct law.” State, Dep’t of Highway Safety v. Brown, 179 So. 3d 547, 549 (Fla. 3d DCA 2015) (quoting Dusseau v. Metro. Dade Cnty. Bd. Of Cnty. Comm’rs, 794 So. 2d 1270, 1274 (Fla. 2001)). For our Court to grant second-tier certiorari where a petition for second-tier certiorari is premised on the failure of the circuit court to apply the correct law, “the circuit court’s decision must violate a ‘clearly established principle of law’ resulting in a miscarriage of justice. ‘Clearly established law’ can derive from a variety of legal sources, including controlling case law, rules of court, statutes, and constitutional law.” Id. (quoting Dep’t of Highway Safety & Motor Vehicles, Bureau of Admin. Review v. Fernandez, 114 So. 3d 266, 270 (Fla. 3d DCA 2015)). III. ANALYSIS A. City’s Petition for Writ of Certiorari The City challenges the portion of the opinion holding that the variance constituted impermissible spot zoning. It correctly argues that the circuit court failed to apply local law that gives the City the power to enter into settlement agreements and grant variances where a property owner is unfairly or disproportionately burdened. 3 3 The City’s zoning code provides that “if the City demonstrates that a settlement would avoid, mitigate, or remedy an unfair, disproportionate, or inordinate burden to a property owner, the City Commission may grant 5 But because the City does not dispute that the circuit court properly quashed the Resolution on first-tier certiorari, any error did not result in a miscarriage of justice justifying second-tier certiorari. B. Alliance’s Petition for Writ of Certiorari Alliance challenges the portion of the opinion holding that the Biltmore is permitted to build up to 150 feet regardless of lot size because site-specific regulations trump general zoning ordinances. Additionally, Alliance argues that the circuit court exceeded its jurisdiction by deciding this issue. Whether we agree that the circuit court’s language went beyond what was needed to resolve the petition is of no moment. This is because the circuit court granted the exact relief Alliance sought. Therefore, we deny Alliance’s petition for the same reason we deny the City’s petition. IV. CONCLUSION Because neither party challenges the ultimate result following first-tier certiorari, both parties’ petitions are beyond the scope of our review here. This is particularly true because the circuit court’s determinations here are not binding on future litigants. See Dep’t of Highway Safety & Motor Vehicles appropriate relief” including “[a]ny of the remedies listed in section 70.001(4)(c) of the Florida Statutes.” § 3-1703(A). Such a decision “rests in the sound discretion of the City Commission in the exercise of its inherent sovereign powers to settle legitimate disputes.” § 3-1703(B). 6 v. Alliston, 813 So. 2d 141, 145 (Fla. 2d DCA 2002) (“[A] circuit court [opinion] that is particularly fact-specific and fact-dependent . . . and therefore cannot act as precedent in future cases, will generally not merit certiorari review in the district court . . . . ”); see also Piquet v. Clareway Props. Ltd., 314 So. 3d 423, 428 (Fla. 3d DCA 2020) (“[T]his Court’s authority, on certiorari review, is limited to quashing the lower court’s order.”); Gulf Oil Realty Co.v. Windhover Ass’n, Inc., 403 So. 2d 476, 478 (Fla. 5th DCA 1981) (“[W]hen an appellate court reviews a lower court order, there is a procedural distinction between review by certiorari and review by appeal. On appeal, an appellate court has authority to reverse an order or judgment and remand with directions or instructions for the trial court to follow. However, after review by certiorari, an appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders.”). Petitions denied. 7