2015-10-19 Appendix To Response To Petition For Writ of Certiorari

IN THE THIRD DISTRICT COURT OF APPEAL
STATE 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-Tier
Petition 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.
APPENDIX TO WAL-MART STORES EAST, LPS
RESPONSE TO PETITION FOR A WRIT OF CERTIORARI
Joan Carlos Wizel
Mark A. Emanuele
Richard Lydecker
Manuel A. Diaz
LYDECKERDIAZ
1221 Brickell Avenue, 19th Floor
Miami, Florida 33131
(305) 416-3180
Counsel for Respondent
Wal-Mart Stores East, LP
OCTOBER 19, 2015
INDEX TO APPENDIX
Appendix
Content
Per Curiam Denial of Petitioners Petition for Writ of

Certiorari filed in case number 14-492 AP (August 24,
2015)
Opinion in Pfeffer 1 (filed October 15, 2014)
Mandate issued in Pfeffer 1 (October 31, 2014)
Crowdfunding campaign website to help fund Fight

Walmart in Midtown Miami
Resolution 13-01030ii
(December 2, 2013)
Transcript of de novo hearing before the City

Commission on remand from Pfeffer 1 (November 20,
2014)
Petitioners Petition for Writ of Certiorari filed in case

number 14-492 AP (December 16, 2014)
Petitioners Amended Petition for Writ of Certiorari filed

in case number 14-492 AP (January 30, 2015)
Wal-Marts Response to the Petition for Writ of

Certiorari filed in case number 14-492 AP (February 9,
2015)
City of Miamis Response to the Petition for Writ of

Certiorari filed in case number 14-492 AP (February 9,
2015)
Petitioners Reply to Wal-Marts and the City of Miamis

Responses to the Petition for Writ of Certiorari filed in
case number 14-492 AP (February 19, 2015)
of
the
City
Commission
Notice of Oral Argument on August 20, 2015
Class II Special Permit Extension (dated December 12,

2014)
Respectfully submitted this 19th day of October, 2015.

LYDECKER | DIAZ
Counsel for Wal-Mart Stores East, LP
Tel.: (305) 416-3180
Fax: (305) 416-3190
By: s/ Joan Carlos Wizel
Joan Carlos Wizel (FBN 37903)
E-mail: jcw@lydeckerdiaz.com
Mark A. Emanuele (FBN 541834)
E-mail: mae@lydeckerdiaz.com
Richard Lydecker (FBN 490555)
E-mail: rl@lydeckerdiaz.com
Manuel A. Diaz (FBN 310514)
E-mail: manny@lydeckerdiaz.com
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:
Paul C. Savage
E-mail: paul@savagelegal.com
Law Offices of Paul C. Savage, P.A.
100 Almeria Avenue, Suite 220
Coral Gables, Florida 33134
Victoria Mendez
John A. Greco
Kerri L. McNulty
E-mail: agreco@miamigov.com
E-mail: klmcnulty@miamigov.com
E-mail: slstubbs@miamigov.com
E-mail: tmickens@miamigov.com
44 S.W. 2nd Avenue, Suite 945
Samuel J. Dubbin
E-mail: sdubbin@dubbinkravetz.com
Dubbin & Kravetz, LLP
1200 Anastasia Avenue, Suite 300
Attorneys for Petitioners
Attorneys for Respondent City of Miami

APPENDIX
A
APPENDIX
B
APPENDIX
C
MANDATE
FROM CIRCUIT COURT
APPELLATE DIVISION
ELEVENTH JUDICIAL CIRCUIT
MIAMI-DADE COUNTY, FLORIDA
APPELLATE CASE #:14-004 AP
~
J,.
"'
vs.
,
...
"
CITY OF MIAMI, FLORIDA. et al.,
S.'
issu~~
This cause having been brought to this Court by appeal, and after due consideration the court having
its opinion; '
:;~
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance
with the opinion of this COURT attached hereto and incorporated as part of this order, and with the rules of
}:
procydure and laws of the STATE OF FLORIDA.
Lower Tribunal Case Number(s): 13-0103II

WITNESS t~e Honorable Abby Cynamon, Administrative Judge of the Appellate Division of the Circuit
Coutfofthe Eleventh Judicial Circuit of Florida and the seal of the said Circuit Court at Miami, this 318T day of
.~f.
Octoper, 2014.
,;
.,_.
l'
J.,
{ ... ,
...
,;
..
Mandafe rev. 10/22/2008
APPENDIX
D
APPENDIX
E
APPENDIX
F
Walmart Stores East.
CITY OF HIAHI
City Hall
3500 Pan American Drive
Hiami, FL 33133
Commission Chambers
Thursday, November 20, 2014
5
Previously, the Planning Director
Issued the perm it. Petitioners Jacob
Pfeffer, et al, appealed to PZAB, the
Planning and Zoning Appeals Board, which
denied the appeal, and also appealed to
this Commission, which denied the appeal
by Resolution R13-0471, on November 21,
2013.
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PZ.10
Class II Appeal - 3055 North Hiami Avenue
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Commission
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raising a number of arguments.
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Wilfreda Gort, Chairman

Keon Hardeman. Vice Chair
Hare Sarnoff
Frank Carollo
Francis Suarez
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Pfeffer, et al, appealed to the

appellate division of the circuit court,
The circuit court -- the appellate
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division of the circuit court ruled that
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the Planning Director was not bound by the
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recommendations of the NET office and the
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UDRB. The written findings of the
City Attorney's Office
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Commission were sufficient as a matter of
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law. The project met the 65% pedestrian
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use frontage requlrem ent. The project
On behalf of the Appellants
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complied with the liner uses requirement.
Paul Savage, Esq.
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The project was In com pllance with the
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setback requlrem ents for parking
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Victoria Hendez, City Attorney
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HIAtii-DADE COUNTY COURT REPORTERS. INC.
(305) 373-5600
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facilities.
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building continuity requirements.
And the project satisfied the
MIAMI-DADE COUNTY COURT REPORTERS, INC. (305) 373-5600

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CHAIRMAN GORT:
PZ.lO.
MR. GARCIA:
I'm going to Introduce briefly Item
Thank you, sir.
PZ.lO, and then very promptly yield to the
City Attorney's Office.
do that.
Or perhaps I will
I will simply note for the record
These rulings of the appellate
division of the circuit court are the law
of the case. They're outside the scope of
this CommIssion's review today. The
Com m isslon can rely on all the past
evidence on the record regarding this Item
and use that as a part of their decision
that Item PZ.lO Is related to-- and I'm
here today, along with the law of the
not even going to use the legal jargon,
case, as presented by the appellate
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which I'll defer to my colleague, the City
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division of the circuit court.
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Attorney on, but I will tell you that It
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is pertaining to the Class II Special
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Involved the number of loading berths.
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Perm It appeal relating to a site at 3055
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The permit Included more than three
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North Miami Avenue, which may-- you may
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loading berths. The Court Interpreted the
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otherwise have heard of as the Walmart In
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Code Section 627.215, In the appendices of
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Midtown.
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M lam I 21, to only allow three berths
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total.
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That said, I'll defer quickly to the
The only ruling against the project
So not five, not four, only three.
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City Attorney's Office, but I would like
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to make a couple of additional comments,
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provides for five berths, and the Code
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once she has completed her presentation.
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requires three berths total, this court
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Thank you.
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CHAIRMAN GORT:
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Yes, ma'am.
The court stated, since the project
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finds that the Commission's resolution
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finding the project complied with the
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requirements under the code is a departure
back before the City Com m lsslon on appeal
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from the essential requirements of the
of a Class II Special Perm it issued to
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MS. MENDEZ:
This matter Is brought
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For the above-stated reason, we

hereby quash the Commission's decision as
set forth in Resolution R13-0471, File
Number 13-0103ii, and remand this cause
for proceedings consistent therein.
Based on the ruling of the appellate
division of the circuit court, the case is
back now before this Commission on the
limited issue to consider the appeal as it
relates to the number of loading berths
only. So the amount of loading berths.
So the ...
CHAIRMAN GORT: They're appealing,
because they want to see the five instead
of the three by the Judge?
MS. MENDEZ: Well -CHAIRMAN GORT: They want to see the
five instead of three.
I don't understand, the Judge says
not five, but three, but they're appealing
the Judge's decision, which means they
want five then?
MS. MENDEZ: Well, it's back here,
because the Court has said to bring it
back, but, more importantly, I just want
but that's fine. I'll be very brief. I

appreciate the opportunity to say this.
And this goes directly to the question or
comment that Commissioner Gort made.
I, as your Planning and Zoning
Director, have to tell you that I have
found both the logic and the order of the
judges difficult to process, because, to
me -- and, again, this is my view as a lay
person, not an attorney, it is somewhat
counterintuitive.
That said, I am under the impression
that we have been directed by the court to
correct an error that was made in the
Class II Special Permit, which my
department issued and which I signed.
So I understand my choices to be very
limited today as your Planning and Zoning
Director. And my choices are basically
only to bring back to you a project that
has a total of three loading berths,
because the Court decided that total is to
be interpreted as meaning no more than, no
less than three loading berths. And this
is, in fact, what the applicants, the
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this Commission to know that the de novo

hearing, so the hearing from scratch that
you're going to listen to, is only
supposed to be on whether there should be
three berths or not.
CHAIRMAN GORT: Okay.
MS. MENDEZ: Nothing more, nothing
less.
I'm sure that Mr. Savage is going to
disagree with that.
CHAIRMAN GORT: The whole process.
Yes, you're recognized.
MR. SAVAGE: Thank you very much.
My name is Paul Savage with law
offices at 100 Almeria -MS. MENDEZ: I'm sorry, I'm sorry.
MR. SAVAGE: Yes, ma'am.
MS. MENDEZ: Thank you, Mr. Savage,
but that was what I needed to say on the
record, but the Planning Director still
has to give his presentation before you
start.
CHAIRMAN GORT: Go ahead.
MS. MENDEZ: Thank you. I apologize.
MR. GARCIA: I'll be very brief, no,
01/01/2015 06:57:35 PM
original applicants, have done.

They have presented to us, and you
will find in your packets, documents that
show that where there were once 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
that the document show are functional,
which is why you will see in some of the
drawings there are maneuvering diagrams.
So there are three functional loading
berths presently in this particular
establishment. By doing so, we believe
that we have complied with the court's
order. And we submit to you then that the
revised set of documents, and the analysis
and findings that are attached to those
documents are worthy of your approval and
corrective of the defect found by the
courts.
Thank you.
CHAIRMAN GORT: Thank you.
Yes, sir.
MR. SAVAGE: Thank you so much.
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Thank you, Commissioner -- Chairman.

My name is Paul Savage. I have
offices at 100 Almeria Avenue. I'm here
on behalf of the numerous objectors, who
are listed in both my appellate papers and
also on the preexisting appeals to the
PZAB and the Commission, all of which is
part of this record.
I just want to jump right in. I have
a very serious other view, or distinct
view, rather, of what the appellate court
did.
My arguments, as briefed up for the
PZAB, for this Commission and, again, in
front of the appellate court, was at all
times an argument about process. It was
not merely an argument about three versus
five loading berths.
The reason I was talking about those
loading berths was because, if you have a
variance, you have no business traveling
under the process of a Class II Special
Permit. A Class II Special Permit is a
special species that is purely
administratively approved.
that's not a variance.

But they got down to the loading
berths. And they said, yes, the code says
three berths total. We construe Florida
Statutes everyday of our lives. As
judges, we can read what total means. I
have three children total; my cholesterol
reading is so much total. I know what
total means. You don't get five without a
variance. You get three.
Because there's a variance, and all I
needed was one, and the Court said that my
most compelling argument is that the Class
II Special Permit improperly granted
variances, which are subject to a stricter
standard of review, notice and public
hearing process.
The court goes on to say, in other
words, Petitioners allege that a variance
from the code cancels the Class II Special
Permit and requires that the application
be resubmitted under other applicable
provisions governing variances.
So I was right, there was a variance.
It needed to go to another process. And
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And without additional hearings and

other proceedings that are required in a
Major Use Special Permit, where a
variance -- as a prime example, the last
matter before you was a variance. People
were talking about hardship standards.
It's another animal altogether.
So what I was arguing in front of all
tribunals was that this has variances. It
does not need to be -- it should not have
been treated as a Class II Special Permit.
We were robbed of those procedural points
of entry and public hearings and all of
those things that are there in a Major Use
Special Permit and that are not there in a
Class II Special Permit.
So the Court ultimately agreed with
me, granted many of the variances that I
identified. And I had a long list. The
court said, Mr. Savage, you're correct in
the law, but in the application of the law
to the facts, we disagree with you, that
was not a variance. Let's go to the next
one. All of the things that your City
Attorney enumerated, no, Mr. Savage,
3 of 33 sheets
to come back down and read this as -- and

pretend that it was only about those
loading berths, and slap a Band Aid on it
and say, oh, well, take out the berths,
I'm sorry, that is not bringing forth -those are not proceedings consistent with
the opinion of the court. That's an
oversimplified and facile reading of the
opinion.
For example, the NET referral that
happened in October 9, 2012, was with a
variance and thus is invalid.
The NET referral of February 13,
2013, to the Wynwood Allapatah NET
referral office, that had a variance.
That was not supposed to be handled that
way.
The UDRB hearing of February 4, 2013,
the UDRB hearing of February 20, 2013, the
Class II itself, which was issued on
August 12, 2013, all of that is void. We
cannot breathe life into this invalid
permit.
Moreover, only the director can issue
Class II's after certain referrals are
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made. None of that has been made here.

We basically had an argument all
along the way that this should be handled
a different way. The City believed the
other way. And the Court has come down
and ruled that, in fact, it should have
been handled in a variance.
If you want to take out your
variance, then resubmit a new Class II
application and let the citizens have a
proper application before them and make
the requisite referrals and the like.
Essentially, Your Honor-- I'm sorry,
essentially, Ladies and Gentlemen, or
Gentlemen on the Commission, the Court has
ordered a retrial, if you will, and not
just a little Band Aid fix. This has
always been a procedural argument. It
remains a procedural argument. To do it
in this hasty way and not require them to
go back and make a proper application, it
doesn't have a variance and get all of our
procedures in order, I believe will not be
in line with the mandate of the court,
which, by the way, says that you are
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commanded that such further proceedings be

had in such cause in accordance with the
opinion of this court attached hereto and
incorporated as part of the order.
And I'm available for any questions
that you may have.
VICE CHAIR HARDEMON: Thank you very
much.
I believe at this level, you will be
the Petitioner.
MR. LYDECKER: Yes.
VICE CHAIR HARDEMON: Will you
announce yourself for the record, please.
MR. LYDECKER: Richard Lydecker,
Lydecker & Diaz, representing my client
Walmart. We're at 1221 Brickell Avenue.
VICE CHAIR HARDEMON: Would you
like to (inaudible) for the record.
MR. LYDECKER: Thank you.
The Petitioner or Appellant is urging
for more hearings in this case. And
that's -- I'll be honest, that's very
remarkable. Probably one of the
remarkablest (sic) things I've ever heard,
because the appellate court has just ruled
in this case. The appellate court

considered all of these issues.
And I stood before you all about a
year ago, and I said this is the spaghetti
defense, where they throw up everything.
And we had a great big hearing and we
addressed every issue along the way,
right? It was in front of this
Commission. The Commission unanimously
ruled in favor of Walmart that, yes, we
met the design standards.
It went up on appeal. The appellate
court considered all these issues. And
said that the City Commission, this
Commission, in its unanimous decision got
it right. The process, 100/o right.
Virtually every decision in the case
right.
So the question as to whether or not
we met the design standard, or every
little thing they point at, the appellate
court has ruled, everybody got it right.
Now, they are the only people who
think that something went wrong, right?
They've argued the same thing. This
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variance, this theory of theirs, they

argued that at the UDRB. They ruled
against them. They argued that at the
Planning and Zoning Appeals Board. The
Planning Zoning Appeals Board, they all
ruled against them. This Commission ruled
against them. The appellate court ruled
against them. Everybody ruled against
them, but them.
And the truth of the answer is, they
just don't want a Walmart store there.
They just want to oppose it. And there's
this procedural stuff just becomes a
pretext for that.
Now, the appellate court -- let me
backup. The appellate court agreed with
everything. And the remand order actually
to the Commission, it verbatimly (sic)
states, and he says it right there, that
you are hereby commanded to take action in
accordance with this opinion. This
opinion supported everything that this
Commission found, right? You can't go
back and undo the decision that's already
been made by the appellate court.

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Now, the appellate court did make one

distinction. It made a legal distinction.
It looked at the City's code. And it said
the City has interpreted this code
provision to be a maximum versus a minimum
of three versus five berths.
Okay, so the legal opinion from the
court that says now it's three. Okay, so
I got the opinion. We looked at it. We
went back. I pulled out my eraser. And I
looked at the plans. I said, all right,
let's make it three. Let's conform our
plans to what the appellate court told us
to do, because they just told us,
everything is good except for make it
three berths. We said, all right, we'll
make it three berths. It's not a big
deal, actually. It actually works out
better for us. So we conformed to it and
made it three berths. Notwithstanding,
they want to have a debate and talk about
variances.
After the appellate court's ruling,
the discussion gets pretty simple. The
discussion becomes whether or not we want
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to have three loading berths, or do we

want to have three loading berths, or, on
the other hand, should we have three
loading berths, because the appellate
court just ruled thou shall have three
loading berths.
I asked my client, I said, Client,
how many loading berths do you want? They
looked at me and said, well, I'll have
three loading berths. That's it.
Nothing's changed in this case.
We are asking now that the resolution
be passed approving our Class II permit.
We have done all the hearings in this
case. That we pass our Class II permit.
And it's like any other condition, it just
-- and include the condition as part of
the resolution that we comply with the
appellate order specifically requiring
three loading berths. And to back that
up, we've actually provided plans,
turnability (sic) plans. Actually,
backing up our representation, we will
just have three loading berths.
So we would urge a simple resolution.
We have done this for almost four years.

We really do do a good job there.
And I will say this, too, on a
personal note. I like to close with this.
There was a dream called Midtown Miami.
It was to take some of the biggest
blighted area in the City of Miami,
hopelessly riddled with junk and crime,
and convert it into one of the most
successful urban design outdoor shopping
in residential area. It's beautiful.
It's a success we can all be happy with,
but that dream was only half completed.
My client is the other half of that dream.
And we're asking for your support so
that we can finish and move everything
forward. I thank everybody for their
time.
CHAIRMAN GORT: Thanks.
VICE CHAIR HARD EM ON: Mr. Lydecker,
and also-MR. SAVAGE: Yes, sir, Paul Savage.
VICE CHAIR HARD EM ON: Mr. Savage, no,
I appreciate both of you all's argument on
moving forward.
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And one of the things that I know

that we're tasked with is a de novo
review. And considering the fact that we
have a de novo review, in the opinion that
was laid down by the appellate court, it
laid down reasons that it was in your
favor, Mr. Lydecker, and reasons that it
was not in your favor, Mr. Lydecker, as
well as, Mr. Savage, reasons that was in
your favor and it was not in your favor.
And so I just want to ensure that at
this level we at least hear some fact that
you want to put on the record to support
your opinion, the opinion that the
appellate court made. So that when --as
we make our decisions here today that are
in -- how do I put -- I want to read this,
and remand this cause, proceedings
consistent herein, we want to make sure
that we do everything right, so that the
decision we make today is one that will
stand once appealed.
MR. SAVAGE: May I have-- that's a
great way to proceed, as long as I have a
chance to rebut, if that's okay through

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the Chair.
VICE CHAIR HARDEMON: You will have
one opportunity to rebut.
MR. SAVAGE: Thank you, sir.
MR. LYDECKER: Here's what I would
say. We have had a full hearing.
VICE CHAIR HARD EM ON: Yes.
MR. LYDECKER: As you may recall, we
did have a very spirited debate. We
chased -- we chased down every issue. We
would rest on our record in this case
based upon the prior hearings that we have
done.
VICE CHAIR HARD EM ON: Let me-- I'm
sorry to interrupt for one moment. And
I'm not asking you to give me another
hearing, that's not what I'm doing, but in
the opinion, there were very specific
statements that were made by the court
that sustained your position.
MR. LYDECKER: Right.
And we would say -- then I would draw
this Commission's attention to a. 2012
case. I think actually applies very well.
And it's a case involving Lucia Dougherty.
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It came up with the appellate court. And

there's just two phrases that I would read
into the record right now as well.
It says under the law of the case
doctrine, questions of law that actually
have been decided on appeal must govern
the case in the same court and in the
trial court through all subsequent
proceedings.
Second phrase, the City Commission's
de novo review -- this is when it came
back from remand from -- let me backup.
This was a case where it went up on
appeal. And it was remanded back for
certain actions. The City Commission did
an additional action than what was the
basis of the remand order.
And this is what the courts said, the
appellate courts. The City's
Commission -- this City's Commission. The
City Commission's de novo review deprived
Dougherty of previously successful
application without any legal basis and
allowed Respondents an additional bite of
the apple not contemplated under the
City's code, that's this City, or the

appellate pronouncement in this case.
And then I will also draw the
Commission's attention to the language of
the actual remand order. The court went
through the entire record, was brought up
there and it was all reargued. And they
only said, on a legal basis, five equals
three. So it was a numeric question, five
loading berths versus three. We said,
fine, we'll take three. We'll comply with
the law.
And then on the remand order, it
specifically says you are hereby commended
to take further proceedings in accordance
with this opinion. And the opinion
provides expressly we're right every which
way except five versus three. We
confirmed to-- we reformed it to three,
and that's what's before you right now.
And my esteemed colleague has argued
to you the same things that were argued
before. And, in effect, requested you,
this body, reverse the appellate court,
'cause that's what he's asking. He's
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saying I don't like the process. He's

saying we should not have done a Class II
permit.
Well, if he felt that way, he argued
in front of the appellate court and the
appellate court disagreed with him. And
he had another appellate opportunity, and
that was to take it to the Third DCA. And
you know what, they abandoned their
appeal. They abandoned it.
If they felt that the process was
wrong regarding a Class II permit, or
whether or not a variance was gone or
something that was wrong with that
appellate decision, they should have taken
the next appeal, but they chose to abandon
it. And they come back to you, this
Commission, and ask you to reverse the
appellate court. And that I would
respectfully suggest is something you just
cannot do.
COMMISSIONER SARNOFF: Mr. Chair.
VICE CHAIR HARDEMON: Yes, you're
recognized.
COMMISSIONER SARNOFF: So being the

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attorney -- I'm sorry, I wasn't the

attorney. Being the Commissioner that the
Court was speaking about in Dougherty
versus City of Miami, who then put on-and did not listen to the court based on
its previous ruling. And then I
investigated what the law of the case
really means, and it's to avoid piecemeal
litigation where the appellate courts has
made findings of facts.
I think there's only one thing we
have to do here. And they have submitted
a three-bay plan. The only evidence we
need to hear today is, can this building
operate with a three-bay plan. Once we
hear that, based on a case called Bueno
versus Bueno, which is a Third DCA, 677
So. 2nd 3 matter, citing the Supreme Court
decisions of Jacobson versus Humana, we
don't have choices here.
And having met my brethren Third DCA
judges, and having been told by them do
you not understand what proceedings
consistent herein mean, Mr. Sarnoff, and
I'm speaking to you as Commissioner
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Sarnoff, and I said I understand, Judge,

when you tell us to come back and do
something, we do what you tell us to do.
So I think the only thing we have to
hear, Mr. Chair, is does this building
operate.
VICE CHAIR HARD EM ON: And I want to
be very clear for the members that sit on
this Commission and the Board, there are
facts, though, that we need to hear in
reference to what you're stating.
So what I'm saying, is that we need
to be careful as the Commissioners that we
receive those facts before we make a
decision. If we make a decision without
having those facts, then there was no de
novo review.
MR. LYDECKER: I would suggest
respectfully that we have submitted drawn
plans showing the operational and the
maneuverability of how trucks would work
within the loading bay area.
COMMISSIONER SARNOFF: But I think
all we need to hear is the Planning
Director saying this building operates
satisfactorily.
MS. MENDEZ: Which he said that at
the beginning when he gave his
presentation.
COMMISSIONER SARNOFF: I'm sorry. I
apologize.
MS. MENDEZ: But we can just clear
for the record, Mr. Garcia, can you please
explain for the Commissioners, so there's
no doubt, the viability of three berths
with this project at this point.
MR. GARCIA: Thank you, yes, and I
would like to phrase it in the following
fashion.
Your Planning and Zoning department
has submitted and is on the record a
document called File Number 12-0054,
analysis for modifications to loading
berths for Class II Special Permit.
Within this document, which I signed
myself, dated the 15th of November of
2014, there are findings and comments,
specifically seven findings.
And our recommendation -- and also we
put that in there for the record. And our
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findings to summarize are as follows: The

modifications made to the plans render the
three remaining 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 be the -we understand to be the court's mandate,
to interpret the code to mean that, at
most, and at least three loading berths
shall be provided. So we are here to
verify that three loading berths, fully
compliant with the appropriate sizes and
dimensions provided by the zoning
ordinance, have indeed been provided.
Plans attached to show that is the case.
And, lastly, as the Commissioner
requires, and we have pointed out, this
particular establishment will function
just fine. It will function properly with
the three loading berths provided.
I'm happy to answer any additional
questions.
VICE CHAIR HARDEMON: Well, with that

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statement being made, Mr. Savage, I want

to give you an opportunity to differ in
opinion as to the facts that have just
been put on the record for your client's
sake.
MR. SAVAGE: Well, yeah, I have -absolutely, I'll put on the record. I
think that the proceeding is improper.
The court is clear that there was, in
fact, a variance, that the proceeding was
wrong. The proceeding was wrong. We went
through county court, if you will, instead
of going through circuit court. The
judges has ruled that we should have been
in another proceeding and they need to
resubmit their application.
But to answer your question, even
though I disagree with the whole
procedure, I will answer your question and
say, if you're having a de novo hearing on
-- and, by the way, this thing is framed
up by your existing resolution as we're
going back in time and hearing Mr.
Savage's appeal from PZAB. That's what
this resolution says right now.
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MIAMI-DADE COUNTY COURT REPORTERS. INC. (305) 373-5600
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And I'm standing on the -- I'm very

comfortably, by the way, standing on the
written opinion of three appellate court
judges. And I happen to know a little
bit-- a little something. Maybe I can't
do a floor area ratio calculation very
well, but I did clerk at the Third
District Court of Appeal in the beginning
of my career. I've drafted language that
now resides in the Florida Statutes. And
I know something about what an appellate
court is saying.
This Court set out my argument as the
most compelling argument. The part that's
missing, I will grant you, are the seven
reasons or more that they rejected all the
variances that I said. And I'm not
rearguing that.
But what it says at the end is, Mr.
Savage, you did, you found one. It's in
here. You're right, there should have
been another process. But, okay, so I'll
go down the rabbit hole with you, and I'll
say that this is what we're doing and
you're having a de novo hearing.
Well, a de novo hearing of that

appeal was, I was at that time complaining
that the PZAB got it wrong, because they
didn't find a variance. Well, guess what?
I'm standing on an appellate court opinion
that said, you know what, there was a
variance. So you're still going to deny
my appeal? I was right, there was a
variance.
I mean, I'm very comfortable taking
this record, and I'm very comfortable
having that decision about -- having that
discussion with the court about did you
follow our mandate.
And you want to make jokes, you think
it's funny, yeah, okay, fine, we can make
jokes. I mean, this is just -- you lost,
okay? You lost this case.
Now, we want to, you know, act like
Taylor Swift, and shake it off, and move
on, and slap on a Band Aid and keep on
trucking like it didn't really happen?
Okay, I know their address. I know where
to take it.
VICE CHAIR HARD EM ON: Thank you very
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much.
Commissioner Suarez.
MR. LYDECKER: Mr. Vice Chairman, I
also have my client here, who might be
willing to testify very briefly, if that's
helpful.
VICE CHAIR HARDEMON: I want to
recognize Commissioner Suarez before we
move to the next-COMMISSIONER SUAREZ: Thank you.
That's the first Taylor Swift reference
that I've been privy to si nee I've been
here as a Commissioner, so kudos to you
for that one.
I have a question in terms of
amplifying the record a little bit.
I just asked you a question
privately, and I want to ask it publicly,
which is, they reclassified the five
berths as three berths with a staging
area; is that correct?
MR. GARCIA: Yes, sir, as a result of
deleting the other loading berths. And
I'm going to clarify that. I'm calling
them loading berths, because the court

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calls them loading berths. That, in my

previous mind, was debatable. I will no
longer debate that. The court said there
were five-COMMISSIONER SUAREZ: You shouldn't
debate that.
MR. GARCIA: I understand, I
understand, but should the issue ever come
up, I just want to note for the record
that the one on the upper story perhaps
should not have been classified as loading
berth.
We had approved the project with four
loading berths. That said, five loading
berths have been turned into three. And
you are correct, Commissioner, as the
plans show, where there were previously
five loading berths, there are now three.
And the result of that is that there will
now be three properly dimensioned,
properly striped areas.
And I'll now use the loading berth
definition provided by the Appendix C of
Miami 21, which refers back for full
clarity to Zoning Ordinance 11000, as
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appropriate, to indicate that loading

berths in this context means that these
are the sole spaces where trucks or other
delivery vehicles may station themselves
so as to load and unload merchandise.
Because the number of loading berths
is now three, the area that was previously
set-aside for the other two loading berths
now function as additional space for
staging areas to be used as appropriate,
not for loading.
COMMISSIONER SUAREZ: And in your
opinion, that's in conformity with our
Code and with Miami 21? And that's an
acceptable -- and that's walled off?
That's not-- there's no viewing of that.
It's not viewed by the public, etcetera.
MR. GARCIA: These three loading
berths are fully contained within the
building, fully shielded from view and
protected by either walls or a gate, yes.
COMMISSIONER SUAREZ: And the other
question I asked you was whether or not
they had submitted a traffic management
plan and you told me that they had.
MR. GARCIA: The original Class II

Special Permit application addressed those
issues satisfactorily. And they were
reviewed by the CITP department, as well
as the Planning and Zoning Department as
well as Public Works Department, yes, sir.
COMMISSIONER SUAREZ: Okay. I think
it was important to amplify the record on
those issues, because when you delete
three berths or five berths and you make
it three berths, the natural question is,
well, what happened to the remaining area.
So I think it's important for the Planning
Director to specify that and put that on
the record very clearly.
I want to make a generic statement
about this, but I'm not so sure that I
should.
You know, I never fully -- I never -I never fully -- and I am the Midtown
chair, so I supposed I should somewhat
opine on this.
You know, Midtown has a great vibe.
And it was created in a way that is a mish
mash of a lot of eclectic things, whether
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it's restaurants, whether it's housing.

And it's kind of a mixture of the big box
concept with also very cool and innovative
restaurants. And, unfortunately, it seems
to clash right in that point, you know. I
think that's what really led people to
question whether Walmart was the best
property for that or the best use.
Unfortunately, in a democracy, in a
capitalistic democracy, you don't
necessarily always get to choose whether
it would be a Best Buy, whether it will be
some other sort of a big box store.
One thing that I think is important
is that it is lined along Northeast 1st
Avenue with what will ultimately be
hopefully a use that is much more
consistent with the kind of cool vibe that
we had along Northeast 1st Avenue.
And I think that's something that if
you're an opponent of this, that would be
hopefully something that would placate you
a little bit and would make you feel more
comfortable with the proposed development.
And that's something that I'm sure

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was hard negotiated and hard fought

through the competing elements that were
at war. And there were many for a long
period of time. This has taken a long
time to get to this point.
Again, this could be a Best Buy.
This could be anything else. I'm not so
sure why Walmart specifically is so
offensive to some people.
It does serve a lot of poor people in
our community. And that, to me, is
something that, you know --just like any
general store, any large commercial
general store -MS. HOLMES: Really?
COMMISSIONER SUAREZ: -- you know, we
can't -- Midtown cannot be just for one
class of person, I think.
And sorry for making all these kind
of generic statements that really have
nothing to do with the court case at
issue, but I wasn't here the first time
that this was heard. So it was kind of on
my mind and I kind of wanted to express my
thoughts on that.
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presented competent substantial evidence

establishing the project's compliance with
the requirements under the code."
And I read that, because the
statements that you skip in between your
presentation are important, 'cause in that
paragraph that we've just read, it does
not say that the application needs to be
resubmitted.
What it does go onto the next
paragraph, and it says, "The test is
whether there exists any competent
substantial evidence to support the
decision maker's conclusion." The
decision maker would be the City
Commission, sitting in its capacity.
And then it says, "Evidence
supporting a contrary decision is
irrelevant." So it's not considering
whether or not there's some contrary
evidence there, but whether or not there
is competent substantial evidence to
support the decision maker.
And so then it goes on to the facts
that that were laid out. And it said, in
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VICE CHAIR HARDEMON: Thank you,

Commissioner.
One thing, I want to assure Mr.
Savage that his arguments are not going on
deaf ears. I read what you've
highlighted. And it says, "Finally, the
most compelling argument," and it is an
argument, 0f the Petitioners is that the
Class II Special Permit is improperly
granted variances."
So what you've argued, that it was
not a permit, but a variance. It says,
"Which are subject to a stricter standard
of review and notice of public hearing
process. In other words, the Petitioners
allege that a variance from the code
cancels the Special II Permit and requires
the application to be resubmitted under
other applicable provisions governing
variances."
Now, it properly says that that is an
argument. It does not say in the next
sentence that you are correct in your
argument, but it does say that, "In
contrast, the Respondents argue that they
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01/01/2015 06:57:35 PM
fact -- in one of the paragraphs, "In

fact, she --" referring to Ms. Ana
Gelabert, ln fact, she testified that the
project exceeded this requirement." And
so, in that statement, it was giving
substantial -- competent substantial
evidence in support of the decision
maker's decision.
In the next paragraph, it goes on to,
"Ms. Gelabert's testimony appears
sufficient to uphold the Commission's
findings on the requirements for active
pedestrian usage frontage and linear uses
were met." So there, again, it fits
the -- it meets the test that was stated
earlier.
And then it goes on and says that,
"Consequently, Ms. Gelabert's testimony
finding that the setback requirements were
met because the parking spaces were
setback 85 feet is sufficient to establish
basis of fact from which the Commission
can conclude that Walmart's project
complied with this requirement."
So your argument where you say that
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it is a variance and not a Special Permit,

in which I used the correct words, I
believe I was right. It is a variance,
and not a Special Permit, in the way that
the court ruled was-- I won't say they
commented on your testimony. They
moreover commented on the -- at that level
the Respondent.
And let me finish.
MR. SAVAGE: Yes, sir, yes, sir.
VICE CHAIR HARD EM ON: Because it was
saying that everything that was put on the
record at the time met the test, but it
goes into, "Nevertheless" -- and this is
the part where you've hung your hat -"the off-street loading requirements shall
be as follows." And it goes into the
berths, the three berths total.
"At the hearing, Ms. Gelabert
testified that this provision has always
been interpreted as the minimum amount."
So she's saying that this is the minimum
amount. "Consequently, she testified that
the project provides for five loading
berths, which is in compliance with the
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request," so she's making an argument

here.
But the case law was very clear, and
the court ruled, as you've stated, that
when the statute or rule is unambiguous
and conveys a clear and ordinary meaning,
there's no need to resort to other rules
of statutory construction.
So in the past arguments, from the
way that I see it, and I would like my
Commissioners to consider, in the past
arguments, it's saying, we defer to the
Commission, and there were facts that were
provided that were sufficient to meet the
test.
In this case, they're saying they
don't defer to the Commission. They defer
to the unambiguous clear meaning of the
statute.
And the court was, as is usually is,
smart enough to say the plain meaning of
the word total were not permitted to be
read as minimum. You gave examples as far
as children.
They gave -- they say that -- the
court, meaning, it says the project

provides for five berths, and the code
requires three berths total. This finds
that the Commission resolution finding the
project complied with the requirements
under the code is a departure from the
essential requirements of the law. So
you're saying the essential requirements
of the law.
Now, it doesn't then say, because
they departed from the essential
requirements 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 hereby quash
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 said that the
applicant at the time must then resubmit
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their application in accordance --just as

the same way it mentioned resubmitted the
application in your argument, having said
that, I would think that then there would
need to be some re-submittance of the
application and that portion has to be
reconsidered. I don't see that.
What I see, from when I read this, is
that the -- everything was -- the process
was correct. It's just that in the last
consideration, when you're talking about
berths, that the City varied from the
plain reading of the word total, and
incorrectly allowed five, when it should
have been three, as a special class permit
would allow.
So here we are now deciding whether
or not three fits within the special class
permit, because that's the state that
we're back in now. We're deciding about
the special class permits. And the
special class permit, in the language that
was presented before us now requires
three. And I've heard sufficient evidence
from staff and from the applicant that

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three is what they've been provided.

Mr. Carollo.
MR. CAROLLO: Thank you, Mr.
Chairman.
And let me bring it down to layman's
terms. And, as you know, I'm not an
attorney, but I just want to put it in
layman's terms.
It seems to me that the court has
dictated that, yes, there was a variance,
that the variance is that there was five
instead of three. So fix it and then you
have no variance. Therefore, then you
allow the Special Class II Permit to
coexist.
The reason why it may not be allowed
is because we did find the variance. The
variance was you did five total instead of
three. Fix it. So you fix it. We do
three variance -- I'm sorry, three loading
berths, then you have no variance.
Therefore, it's allowed, 'cause the rest
of the process was correct. That's the
way I'm reading it or the way I'm
understanding it.
application process would be different.

And I don't see that happening today. I
mean, that's the way that I read it.
MR. LYDECKER: You've described it
better than I could. And wholeheartedly
agree. I would -- if I could just say one
quick word, Commissioner.
VICE CHAIR HARDEMON: You're
recognized, sure.
MR. LYDECKER: And in that process,
we're not moving one light switch. We are
not moving a wall. We are not moving a
thing. Not one paint swatch. Everything
stays the same. We're just going to have
three. Period.
VICE CHAIR HARD EM ON: I'm willing to
entertain any motion of the Commission.
COMMISSIONER SARNOFF: I'll take a
shot, Mr. Chair, if you'd like.
MS. MENDEZ: Well-COMMISSIONER SARNOFF: I would
move-VICE CHAIR HARDEMON: Oh, I'm sorry.
I apologize. I did not have the public
hearing. I need at this time to open the
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VICE CHAIR HARDEMON: And from what

Commissioner Carollo -MR. CAROLLO: And I'm putting it in
layman's terms.
VICE CHAIR HARDEMON: No, no, I think
in layman's term that was very well
stated.
MS. MENDEZ: Very articulated
layman's terms. Thank you.
VICE CHAIR HARDEMON: For lawyers, we
don't typically do that, right? We do it
for the record.
But I will say that -COMMISSIONER SARNOFF: But you're
hourly rate, because I got to tell you, if
you're a little lower than me, I may just
hire you.
VICE CHAIR HARDEMON: Now, had the
applicant come to us today and said, well,
they wanted five and not three, then there
would be a question of variance. And
then -MR. CAROLLO: Right, it would
trigger -VICE CHAIR HARDEMON: -- the
01/01/2015 06:57:35 PM
floor for public hearing. And I will

recognize those who are going to be called
by the City Clerk.
MR. SAVAGE: And, Mr. Chairman, can I
just say one thing. And I just want to
thank you for going through the opinion.
I do appreciate the extra time that you
took.
I respectfully do disagree with the
reading. I do think that the process is,
in fact, different and should have been
different and should start from scratch,
but I do want to thank you for reading the
opinion as carefully as you did.
And so with that, I will conclude my
remarks. Thank you.
much.
THE CLERK: The first speaker is
Peter Ehrlich.
MR. EHRLICH: Good evening, Mr.
Chair, Commissioners. Peter Ehrlich. My
address is 720 Northeast 69 Street.
This appeal has already been heard.
And the Commissioners voted 3-0 to deny
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the appeal.
The City Attorney stated the
Plaintiffs that were bringing this appeal
today, she mentioned the Plaintiff that
contradicts the Plaintiffs that were
mentioned in your item on PZ10.
On PZ10, the appellants are listed as
Grant Stern, Peter Ehrlich, Rosi Barrios.
Your City Attorney said the appellant
today was somebody named Jacob Pfeffer.
Jacob Pfeffer, who will be speaking later
today, he's one of the appellants that-or one of the Plaintiffs in the court case
that you have a copy of.
So there's a difference in -- the
Plaintiffs in the court case are slightly
different than the appellants. And that's
a contradiction that the City Attorney
might not have been aware of.
I would just like to say that we hope
you'll -- even though we didn't ask for
this appeal to be heard today, we weren't
notified that it was going to be heard, we
saw it on the agenda without any heads-up,
whether we'd be in town and able to show
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Attorney, if you want to clarify for the

record the differences between the
Respondents and the Petitioners on each
level.
MS. MENDEZ: Right, the information
that I stated at the beginning was the
court process, and how it went through the
process and when it went to the appellate
division of the circuit court.
Here, today, because it was remanded
back here before the Commission, it's
remanded in the same process that it came
up through this-- to the City Commission
originally and those appellants at that
point.
So that is the distinction, which
really does not make a difference, but I
just wanted to clarify that for the
record.
much.
Mr. Clerk.
THE CLERK: Jacob Pfeffer.
MR. PFEFFER: Good evening, Jacob
Pfeffer, 401 Biscayne Boulevard. I was
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up today.
We hope you'll affirm the appeal.
And if you do, we think it will lead to a
better project. You know, many times in
the past you've denied projects and asked
for projects to come back with changes.
We think that if it happens in this case,
you will see a better project. For a
handful -- for six or eight different
reasons, the project can come back far
better for the City and far better for the
neighbors in the Midtown Miami area. And
there's a few other people that will be
talking today.
Oh, one quick point. I don't know
how many of you remember JCPenney that
submitted an application for this site a
number of years ago, but their application
was for a store for a little over
100,000 square feet. This Walmart store
is over 200,000 square feet.
much, sir. I really appreciate your time.
MR. EHRLICH: Thank you very much.
VICE CHAIR HARD EM ON: And, Madam City
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actually the lead Plaintiff in the court

case, as we've corrected on the record
now.
It's been three years since we've
started this process. In that time,
Commissioner Suarez, I think you've had
your first child. So have I.
COMMISSIONER SUAREZ: Congrats.
MR. PFEFFER: Thank you.
Commissioner Sarnoff, you've grayed
your hair a little bit. We have a new
commissioner. So this process has been
long, but there's a reason it's been long,
because we're trying to get it right.
And I'd like to correct something
that was stated by the Planning Director,
or at least clarify.
You've stated earlier that a traffic
study was submitted as part of this Class
II Special Permit application. We've been
asking for that for years and it's never
been shown to us. As far as we know, that
has not been completed.
And when you ask why do we oppose a
Walmart, it's the scope of the store that
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we oppose, not the brand that's on the

wall -- on the facade.
This store and trade area that it
pulls from will create a significant
traffic impact into the area that is a
pedestrian area, and a bike friendly area
and in a connecting area from Design
District to Wynwood.
Furthermore, that Miami Avenue
traffic is already horrendous and bringing
in all the traffic from Miami Beach will
only exacerbate the problem.
COMMISSIONER SUAREZ: Can we get a
copy of that at some point, 'cause I think
it's a fair request. I mean, if it
exists, that will be -- it's a fair
request, if it's part of the public
record.
MR. PFEFFER: Well, I think that
would be irrelevant also for this process.
Furthermore, today we haven't
actually been shown, and I don't know if
you've seen it on the record, yet, we just
found it today on the web site, even
though it was only submitted five days ago
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on a Saturday, but the revised plans.

And when they've taken these five
berths and made them three, I'm not sure
if you've seen this, yet, I would love for
it to be placed on the screen, if
possible, all they did was with a red pen
mark it off and then call it a staging
area.
When I was a kid, I got an F on a
test once on a red pen, and all I did was
take a red pen, and drop a little line
down and all of a sudden that became an A.
And that's what they've done here, they've
taken an F and tried to turn it into an A,
but, ultimately, it's still an F, because
where will the enforcement be to make sure
that those berths -- those staging areas
won't still be used as berths. That when
trucks are stopped there, and when the
truck driver has a deadline, that they're
not going to use their lift gate to bring
merchandise down and load it in.
So the fact that you can just all of
a sudden change the vernacular and call it
a staging area doesn't mean that it
ultimately can't still be used as a

loading berth.
Finally -- and forgive me if I'm
running out of time, but I would
appreciate a little bit of leeway on this.
On October 22nd of 2006, in the
Coconut Grove Grapevine, a community
newsletter, a letter to the neighborhood
was written where Commissioner Sarnoff,
you wrote there, "There's still work to be
done, but all of you out there, please
take stock that Home Depot failed to
follow the law. Why? These reasons could
be anyone's guess." And you went on to
say, "When they began to retrofit, the
City failed to make them follow the law.
A Judge will easily find they failed to
follow the law and they will lose their
permit."
These circumstances are exactly the
same, they have not followed the law.
They should have gone through a Master Use
Special Permit. Judges have agreed with
them. And, unfortunately, we are wasting
City resources with this hearing, because,
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ultimately, we're going to take it back to

the court again and have them illuminate
what their decision was.
CHAIRMAN GORT: Thank you very much.
MR. PFEFFER: Thank you for your
time.
COMMISSIONER SUAREZ: Can you -VICE CHAIR HARD EM ON: Commissioner
Suarez, you're recognized.
COMMISSIONER SUAREZ: Yeah, I just -'cause I think I asked the question, and I
want to make sure that you answered it,
but he asked it again. And he asked it in
a slightly different way, so I want to
make sure you answer it again, which has
to do with the difference between a
loading berth and a staging area.
Can you describe why it is not
simply, you know, just as he described,
changing the letter from F to an A?
Can you describe why that is a
difference that is significant versus
something that is not?
MR. GARCIA: I am happy to do so,
sir. And should I forget, which I don't

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expect to, please remind me to go back to

the traffic study -COMMISSIONER SUAREZ: Yes.
MR. GARCIA: -- question, which is
also relevant.
So I think the best way I can
hopefully put this issue to rest regarding
what is a loading berth and what is a
loading berth is to be very factual and to
read into the record the definitions,
which I alluded to previously, although I
paraphrased.
Put into the record verbatim the
definitions for loading berth provided by
Zoning Ordinance 11,000, which in this
case applies, since this is in Appendix C
of Miami 21. This makes sense for the
record. And I know a number of people are
following me, but these are the rules that
apply, suffice to say.
There are four terms involved.
First, I will read the definition for
berth. It says, see stall/berth or
loading facility. Off-street or loading
space, off-street. Period.
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Then that refers us to loading

facility off-street. I'll read the
definition for that. "A building
structure. An area used in the operation
of terminal facility. See also loading
space, off-street and berth/stall." Not
very helpful. I'll read on.
Loading space off-street. "An area
in which goods and products are moved on
or off a vehicle, including the stall, or
berth, and the apron or maneuvering room
incidental thereto." A little more
helpful.
Lastly, "Stall/berth defined as the
space within which vehicles are placed
during actual loading or unloading
operations." It is this last definition
that I think is most helpful. It is
certainly, at least to me as the ultimate
signer of the document, and I think is the
one that's most easily -- easy to explain.
In the end, Commissioners, the plans
that are submitted to receive approvals of
Class II Special Permits are, yes, in
fact, lines on a piece of paper. That is
what they are. Those lines and those

pieces of paper have meaning. And when we
approve a set of plans, lines on paper,
and we stamp and sign our names on it,
that's what we mean to approve.
This is the appropriate method to
correct the defect that the Court found,
when it found that there were five loading
berths and there should have been three,
the correct way -- the correct way to
address that is to, in fact, strike out,
delete, erase, otherwise remove the two
excess loading berths that the court found
defective and replace those with other
uses that are not loading berths.
We thought, and we recommended to the
applicant and we find in full compliance
that to have staging areas to support the
loading and unloading of wares from these
trucks that will be parked on these three
spaces, that that, in and of itself, would
be helpful, and, therefore, we have
approved it.
The corrections are satisfactory.
And we think that it is not going to have
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any impact whatsoever in the proper

functionality of the store as proposed and
as submitted to you in the plans on the
record.
I'm happy to add to that if someone
wants to ask additional questions.
Other than that, I will say as it
pertains to traffic impact studies,
operational studies, et cetera, and I'll
be a little clearer than I was perhaps the
last time for everyone's sake, the Class
II Special Permit process is a very
intensive review process. Someone else,
some other speaker alluded to the fact
that it took two years in this particular
case. It certainly took two years and
many meetings.
And so as part of that process, we
refer it -- this is on the record -- to
many departments, many agencies, but, in
particular, we refer to the capital
improvements program, which Is
transportation office within it, to the
Public Works Department and part of the
review of the plans submitted precisely

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delves into how this store is going to

function or the particular building is
going to function. And they give us
recommendations as to whether it is in
compliance or not.
It is that kind of study, it is that
kind of review, intensive as it is, that I
am referring to when I say that, yes, it
has been vetted, it has been reviewed and
it was found to be in compliance.
Those reviews were done certainly
with the experts that the applicant
brought to explain whatever issues were
attendant to the application, and they
were discussed in many public meetings and
public hearings. And, again, we have
found those and make reference to those in
finding the plans that have been proposed
satisfactory and worthy of approval.
MR. STERN: Thank you, Chair. My
name is Grant Stern.
VICE CHAIR HARDEMON: You're
recognized, Mr. Stern.
MR. STERN: Thank you.
I've got some handouts for everybody,
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so if you'll indulge me for a second.

What you're receiving is two packets.
One packet contains Walmart's 11-page
legal brief arguing why the five berths
depicted in the prior design that Walmart
admits has not changed even one iota were
five berths. Now they're simply drawing
some red lines on a piece of paper and
claiming that these five berths are now
three.
And I posit to you, sirs, if it walks
like a duck, and it quacks like a duck, it
is, in fact, a duck.
Now, there's a second packet that
you're going to receive in a moment that
contains some information that you may
turn a stone ear to considering that you
believe this may not be a de novo review,
but it contains evidence of one major
variance and one probable variance as
well.
To return to my opponent's words, he
clearly said to you just a few minutes ago
that the UDRB found unanimously against
us. Well, that's a complete
mischaracterization of the truth. They

found unanimously against Walmart. They
named only two conditions, but they named
many things in their oral arguments that
were not named in the resolution. And had
they been named in the resolution would
have been already resolved.
Now, it is true the court found in
favor of us.
And one thing that nobody has
mentioned tonight is that the court
awarded us quashal. Quashal is the
highest remedy. And I would like to play
30 seconds of the oral argument where the
judges and counsel Paul Savage discuss
what does quashal mean, because this is
key, quash and remand for proceedings
consistent herein. Let's listen to the
proceedings. This is 30 seconds.
(Thereupon, the audio was played and
the following was heard:)
"MR. SAVAGE: This was a matter that
had variances. It was put through as a
matter of administrative approval. It was
the improper procedure. And that's the
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legal question that I'm asking your Honor

to consider under the case law.
"UNIDENTIFIED JUDGE 1: And what
you'd like us to do is quash the
resolution and send it back and have -"UNIDENTIFIED JUDGE 2: And go
through the variance procedure.
"MR. SAVAGE: Yes, I did attend a
local government seminar in Orlando
recently. And I learned from a professor,
someone smart there, who said quashal is
the only remedy on --"
{Thereupon, the audio concluded).
MR. STERN: So the judges believed
when we asked for quashal that we were
asking to nullify the permit and send them
into the variance procedure forthwith, if
they wished to continue. If they wish to
withdraw their special application after
the final decision that was issued last
August, they're also welcome to do so.
And Article, I believe, 1311 would apply
and a 12-month waiting period, for a
substantially similar application does
exist. So you can understand why they're

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trying to force this through the wrong

way.
This is a miscarriage. This permit
has been nullified by the court system.
To hear it today, without the proper
referrals, without going to the PZAB, it's
not right.
And the documents that I gave you,
that I know you may turn a stone ear to
show that there is a very important
requirement central to Midtown Miami's
functioning as a pedestrian-friendly area.
It's a lot of pages, but it's not a lot of
information.
And I apologize for not bringing the
monitor, so I can show it on the
television, but it's called -- it just
says corner entrance on open space
interpretation guide. And what it says
is, all ground level space intended
designed for pedestrian-oriented uses
shall have external entrances directly
accessible from public sidewalk space. At
least one external entrance shall be
located along the frontage of the primary
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street, or on the corner intersection of

the primary street and any other street
or -- and this is the important part, or
the frontage of public open space.
Well, there is a tract on the west
side of this property that is a six-foot
wide private park owned by the COD that -Mr. Suarez, you chair the COD as well?
No, just the CRA. But the Community
Development District declared under
Chapter 190 of Florida law and ratified by
Miami-Dade County, owns the six feet west
of the Walmart application. Their garage
entrance should be a store entrance. It
says very clearly it should be glass.
If you look at every other corner
that meets the criteria in this packet,
they are all store entrances, even if
there's no road.
much for your time. I really do
appreciate it. Your time has expired.
MR. STERN: Thank you very much, Mr.
Hardemon.
VICE CHAIR HARD EM ON: You're welcome.
And I do have a question for- Madam

City Attorney can answer it; counsel, Mr.
Lydecker; or even, Mr. Savage. If you
have any response, that will be great.
The argument that the speaker just
before just elevated, was basically the
fact that where we are now, the
quashing -- and I believe you made this
argument, the quashing of it makes it that
a new application for even the special
permit needs to be put before this body,
at least hear about PZAB, et cetera, et
cetera.
Now, so my question specifically is,
do you have any case law that indicates
that anytime something is quashed, if a
special use permit or a special permit is
quashed by, say, the Third DCA, if their
decision is quashed, that they must go
back then through a full process? Do you
have any case law that states that?
MR. SAVAGE: Well, the case law -- I
only need -- well, there are rules of
appellate procedure and many cases that
say that you must follow the mandate of
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the appellate court.

VICE CHAIR HARDEMON: I understand
the argument, because you made that
argument earlier, but, specifically, I
want to know -- and I believe that,
Commissioner Sarnoff, you understand where
I'm going with this. If there's any case
law that exists that says that anytime in
this situation, with these types of facts,
that there is a quashal, that it's been
quashed, that there must be now a new
application that goes in that means that
we need to make a decision on or whether
or not we just, as it's stated in the
opinion of the Third DCA, that we remand
this cause for proceedings consistent
therein.
Because that word proceedings, I
believe that becomes the phrase that we're
now concerned about. Proceedings, is it
just a matter-- are we saying that it is
this proceeding, or we're considering
everything de novo or is it proceedings as
far as a new application being submitted
for the special permit?

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MR. LYDECKER: From me?

VICE CHAIR HARDEMON: Yes.
MR. LYDECKER: Thank you.
There's been no -- we've done a lot
of research, there's no such case law that
we've seen.
And it's one of those areas where I
think you look at, and you say, well,
there's probably no case law on that,
because it just doesn't make sense.
Think about it. We are to do
proceedings consistent with the opinion.
The opinion just went on for 10, 12 pages
saying that we did everything right. So
you're going to send this back to the UDRB
to decide what?
Either it's waived or it's already
been decided by the appellate court, been
decided by the Commission, in which case
you're asking a committee to overrule the
appellate court.
MS. MENDEZ: And if I may just
briefly, and I think this will resolve
most questions and we can just hone in on
the three issue -- three berths' issue,
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"For the above-stated reason, we hereby

quash the Commission's decision as set
forth in Resolution R13." It doesn't say
quash everybody's decision. It doesn't
say all decisions. It doesn't say start
all over.
And more so, we are already having a
de novo hearing today on the one issue
that they disagreed with. So we're really
beating a dead horse today.
much, Madam City Attorney. I think what
you just stated, in addition with having
no case law that would go towards Mr.
Savage's point, I'm satisfied with the
response.
So what I'd like to do is continue
the public hearing. So there's no further
persons that would like to speak on the
record for public hearing?
You're recognized, ma'am.
MS. HOLMES: Madam Holmes for the
public.
And I've watched this, even beginning
with you, Commissioner Suarez not here
when $33 million was spent that was

supposed to be spent on the other side of
town to do economic opportunity for a
community. So I can understand starting
all over again and then losing.
But as I read, according to
proceedings, and you asked the question,
asked answered, if this has been quashed,
and anything else was quashed and any
other applicant decided that they wanted
to modify, or remand or change anything on
this local level, or where it's been given
you back the authority to decide what is
fair, what is reasonable and to reconsider
data according to our fine administrator
for the City, anyone else, whether it be
JCPenney, me, your mama, they got to
reapply.
And when I look at a Walmart over
here in an area that's doing very well in
my community from a personal note and I
see one over here that's adjacent to a
residential community, that has issues
with traffic impacts, that talks about
environmental, which I hardly get an
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answer for even in my previous inquiry,

Mr. Chair, then I think we have to
reconsider something, what is it to not
give information now to the community,
because some what if's and some partial
things have been said here that I'm not
clarified as the public.
And it was the administrator that
stated that it is a public process. And
in all fairness, which is what law here or
rule here, all fairness is to make sure
that everyone within the Commission's
charge receives rightful information,
equal opportunity and to hear the
modifications and the impact reports.
I leave you with that. What does it
harm? We've invested ourselves to argue
to stay in place, because it's an economic
opportunity, but In regards to what the
community, and you represent one, I have
not heard all of the true answers about
the berth, the frontage, the west, the
east.
And I have not been given the
opportunity to say that I want this to set

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precedence as the way when people say one

thing and it turns out that it's not so
clear, that when they come back and
clarify without giving it to the public-VICE CHAIR HARDEMON: Madam.
MS. HOLMES: --that I'm being
represented.
And thank you so much, sir.
much for your time.
Seeing no other persons here for
public hearing, I'm going to close the
public hearing.
MR. STERN: Sir, may I request
respectfully two minutes, please, just two
minutes?
VICE CHAIR HARDEMON: And I will say
this to you, we granted you two minutes.
Another young woman from the community
gave you another two minutes. So at this
time procedurally I'm not going to allow
you for another two minutes unless there's
some objection from my Commissioners. And
I don't see any.
So at this point, I'm going to close
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the public hearing at this point.

COMMISSIONER SUAREZ: Give him two
minutes. What's two minutes? Give him
two minutes.
MR. STERN: Thank you, Commissioner,
I appreciate it.
Look, I would like just to point out
one more thing -- and I appreciate your
leeway very much, Chair -- in the brief
that I provided from Lydecker, where they
spent 11 pages arguing that there were, in
fact, five bays in the exact same design
before you today, minus the markings,
claiming that they were accessory loading
berths, or whatever the heck they want to
makeup from the code, this is 11 pages
claiming that there were five berths in
the project, my opponent just said they
did not even change anything, not a single
thing.
And, further, within the conclusion
on Page 11, they did not request a quash
and remand. They requested a remand. And
they requested remand for additional
findings by the Commission, written
findings, in other words.

They did not request a remand to
change the number of loading berths. They
did not request quashal. They would have
requested quashal, if that was the thing
for them. They requested a straight
remand. They did not get it.
Why would they leave the Planning
Director's final decision open in a Class
II Special Permit? It's very simple.
From here, they can only proceed into the
variance procedure or withdraw, because a
final decision has already been created
and you cannot amend the final decision.
Final is final. And we will have to
define final in our appeal. I'm sure you
will disagree on the -- that final means
not final, but they did not request
quashal. We received quashal as our
relief for all of our efforts. The City
is wasting its time. It's wasting legal
staff time.
And, lastly, they have denied the
traffic study to us for three years. I've
made repeated requests, in violation of
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Chapter 119 of the Sunshine Law.

And I'm very disappointed that the
City approved this plan on Saturday, days
after the notice was given. We were
noticed and then the approval was given to
Walmart. Approval on the 15th. Notice on
the 9th. How wrong is that?
Thank you very much for your leeway.
much, sir.
I'm going to close the public hearing
at this time. Open up the f1oor for
discussion amongst the Commissioners.
Commissioner Suarez, you're
recognized.
COMMISSIONER SUAREZ: Yeah, I mean,
I'll just say, look, you know, if this
goes back for judicial review, which I
suspect it might, the question that's
going to -- the judges are going to look
at is -- which is why I asked you that
specific question, which is if you
re-categorize the berths in some other
way, is that a legally justifiable
re-categorization. It's your expert

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opinion that it is. A judge may or may

not agree. And certainly they have every
legal right to exhaust their legal
remedies as they have effectively.
You know, again, Walmart just did I
think the first store in the City of Miami
in my district. I was actually very happy
that they did. It was a substantial
improvement over what was there. And they
did it very quickly, very efficiently and
they were good partner. They did hiring
out of the area. I mean, they did a lot
of things.
Again, it's a commercial use of a
commercial structure. Maybe if I had, as
Commissioner Sarnoff would say, my
drudgers, maybe I would put something else
there, but, you know, they have control of
that site through their arrangements with
DDR.
And, you know, I think there have
been many efforts to try to make it as
appealing as humanly possible, given the
constraints. And I think that they have,
you know, in fairness to them, been
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somewhat reasonable in that.

Whether ultimately they are -- you
know, the case turns on the issues that
you guys feel, you know, we'll see, but I
think the court, in its ruling, was very
specific. And said essentially that
everything was done properly with the
exception of the number of berths that
were approved. That's it. And if the
number of berths approved are in
conformity with the ruling, then it's an
acceptable application.
much.
And the Chair is willing to accept a
motion at this time.
COMMISSIONER SARNOFF: Mr. Chair, let
me just say two things.
There are two occasions that, as a
Commissioner I sat up here, did not listen
to the City Attorney's advice, happened to
be Maria Chiaro, and I decided that I knew
better than the court of appeal. And that
was in something called Eisenberg versus
City of Miami and then Dougherty versus
Eisenberg versus City of Miami. Both

times it came back, because the court said
you just don't follow our instructions,
essentially, in the way Carollo would like
to hear it.
And you want to know why? Chiaro
said to me you're going to get sanctioned
by the court or you're going to get in
trouble with the court, Commissioner. And
I just didn't listen. And you know what I
did? I wasted City time. I wasted City
services. I wasted taxpayer dollars,
because I used our City Attorney, because
I refused to listen to the court of
appeal.
So now here's my motion. I move to
deny the appeal, because the doctrine of
the law of the case this matter is before
the Commission on a limited issue.
Simply stated, that doctrine is that
those points of law adjudicated in a prior
appeal are binding in order to promote
stability of judicial decisions and to
avoid piecemeal litigation. That happens
to be Bueno versus Bueno, 677 So.2nd 3,
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Florida Third DCA, 1996 opinion. I've

already cited to you Dougherty 1. I
already cited you Dougherty 2.
When this cause was before the City
Commission on November 2013, the
Commission approved the Class II Special
Permit. There was an appeal. And the
circuit court entered a written opinion
and affirmed on all but one of the issues.
That circuit court, sitting in its
appellate capacity, ruled that, one, the
planning director was not bound by the
recommendations of NET office and UDRB.
Two, the written findings of the
Commission were sufficient as a matter of
law.
Three, the project met the 65/o
pedestrian use frontage requirement.
Four, the project complied with the
liner use requirement.
Five, the project was in compliance
with the setback requirement for parking
facilities.
Six, the project satisfied the
building continuity requirements.

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The court also found that the number

of loading berths could not exceed three,
because of the doctrine -- the language of
the zoning ordinance. The doctrine of the
law of the case says points of law
adjudicated in a prior appeal are binding.
Questions of law actually decided on
appeal must govern the case in the same
court in the same trial through all
subsequent stages of the proceedings.
Under the law of the case, the
Commission has no authority to change
these rulings.
For the reasons stated by the circuit
court, sitting in its appellate capacity,
the City's code requires no more than
three loading berths for this project.
Based on the record evidence
presented at this hearing and the previous
hearing on November 21, 2013, including
the modified plans of the applicant, and
recommendation of the Planning Director
that this project, as modified, is in
compliance with the City's zoning code and
zoning ordinance, I move to affirm the
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Class II permit as modified to reflect

three loading berths, in compliance with
the City code and zoning ordinance and the
decision of the circuit court sitting in
its appellate capacity.
CHAIRMAN GORT: Second.
VICE CHAIR HARD EM ON: And to clarify,
for the record, so we have a motion to
deny the appeal and affirm the Class II
permit; is that correct?
Yes.
And I'm -- I'll yield to you, sir,
please.
MR. GARCIA: Thank you for allowing
me to make a brief statement. And I think
it is important, and perhaps appropriate,
to hopefully clarify something that may be
confusing. And it is this.
I, as your Planning and Zoning
Director, stand corrected by the court. I
want to assure this Commission that the
mistake made by your Planning and Zoning
Department is not to have overlooked a
variance. That is a rather significant
issue. And I'm here to tell you that has
never happened and it will never happen,

at least under my watch. I'm 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.
I'm humbled. I, my predecessors, had
always opined that that meant three was a
minimum, and we could certainly exceed it.
It turns out, as the court says, that the
plain meaning of the word total makes it
so that it cannot be interpreted
reasonably as being more than three. We
stand corrected. We're humbled by it.
I'm here to tell you, though, and
this is the important thing, that had this
been correctly interpreted to mean that
only three loading berths were required,
you would have had before you, one year
ago, exactly the project that you are
affirming today. That's all I have.
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MR. STERN: The public record, as I

understand it, is reopened after he
speaks?
VICE CHAIR HARDEMON: Sir, I will not
-- I will not allow you to speak. You're
not recognized at this time.
MR. STERN: Yes, sir.
VICE CHAIR HARDEMON: The public
hearing has been closed. Right now we're
on a matter of discussion for the
Commissioners to consider whether they
will vote yea or nay.
Commissioners.
No further -- I think the question
has been called.
COMMISSIONER SUAREZ: I think
Francisco just -- you know, that was
actually the most poignant statement you
made the whole entire tire.
VICE CHAIR HARDEMON: It was
beautiful, but that's what the courts are
for, but the question has been called.
City Clerk.
THE CLERK: Would you like to call
the question or a roll call?

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VICE CHAIR HARD EM ON: The question

was called.
COMMISSIONER SUAREZ: He wants a roll
call.
VICE CHAIR HARD EM ON: It was called
by Commissioner -- needs a roll call vote.
THE CLERK: Sure.
Commissioner Sarnoff?
COMMISSIONER SARNOFF: Yes.
THE CLERK: Commissioner Hardeman -or Vice Chair Hardeman?
VICE CHAIRMAN HARD EM ON: For.
THE CLERK: Chair Gort?
CHAIRMAN GORT: Yes.
THE CLERK: Commissioner Suarez?
COMMISSIONER SUAREZ: Yes.
THE CLERK: And Commissioner Carollo?
COMMISSIONER CAROLLO: Yes.
THE CLERK: The resolution passes
5/0.
i
VICE CHAIR HARDEMON: Meeting
adjourned.
(Thereupon, at 9:06 p.m., the meeting
was adjourned).
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CERTIFICATE OF REPORTER
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I, Lorena Ramos, National Registered

Professional Reporter and Florida Professional
Reporter, do hereby certify that I was
authorized to and did report the foregoing
proceeding, held before the City Commission on
the 20th day of November 2014; and that the
transcript, pages 1 through 85, is a true and
correct record of my stenographic notes.
DATED this 1st day of January 2015, at
Miami-Dade County, Florida.
u~~<LLORENA RAMOS, RPR & FPR

COURT REPORTER
25
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APPENDIX
G
IN THE CIRCUIT COURT OF THE

IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
APPELLATE DIVISION
CASE No.
-------
Lower Tribunal No.:

ResolutionIFile 13-01 030iia
JACOB PFEFFER,
CATALINA GUTIERREZ,
MONIKA POBOG-MALINOWSKA,
VINTAGE LIQUOR
AND WINE BAR II, ROSI
BARRIOS, BLO DRY BAR
FLORIDA, LLC NIKJA HEAD
KANDI, LLC, SANDIROSE
MADGER, YASMINE GARATE,
AND ANTHONY DAVIDE,
DAVID LE BATARO, LEBO STUDIOS,
Petitioners,
v.
CITY OF MIAMI, FLORIDA,
a political subdivision of the State of
Florida, and WAL-MART STORES
EAST, LP, a Delaware LP,
Respondents.
PETITION FOR WRIT OF CERTIORARI
SAVAGE
'
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Petitioners Jacob Pfeffer, Catalina Gutierrez, Monika Pobog-Malinowska,

Vintage Liquor and Wine Bar II, Rosi Barrios, Blo Dry Bar Florida, LLC NIKJA
Head Kandi, LLC, Sandirose Madger, Yasmine Garate, Anthony Davide, David Le
Batard and Lebo Studios ("Petitioners") petition this Court for a writ of certiorari
to review and quash ResolutionIFile No. 13-01030iia. This is the second time that
this matter has been before this Court.
This case involves the issuance of a Class II Special Permit by the Director
of Planning and Zoning, dated August 12, 2013. The Petitioners appealed the
Class II Penn it to the Planning and Zoning Appeals Board ("PZAB"). The PZAB
denied the appeal, and the PZAB' s decision was appealed to the City Commission
(the "Commission"), resulting in a hearing before the Commission on November
21, 2013. The Commission voted to uphold the decision of the PZAB and the
Commission's Resolution was appealed to this Court.
After full briefing, oral argument and supplement authority submissions, this
Court issued a nine-page Opinion, wherein it agreed with the argument of the
Petitioners that the subject Class II Special Permit contained an unlawful variance.
The Court accordingly quashed the subject resolution of the Commission, and
remanded the matter for "proceedings consistent" with the Court's Opinion.
Petitioners come back to the Court because upon remand, the Commission
again upheld the decision of the PZAB (even though this Court expressly ruled that
1
SAVAGE
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the basis of the appeal to the PZAB and the Commission was correct) without
following the proper process that would be implicated by a faithful application of
this Court's Mandate. Specifically, if the applicants seek an application with
additional loading berths or other variances, then the applicants must submit a new
application under the governing MUSP procedure. If the applicants seek a Class II
Special Permit with no variances, then they must apply for a Class II Special
Permit with no variances (and not seek to rely on erroneous prior proceedings now
found to be infected with an unlawful variance).
INTRODUCTION
The administrative appellate proceedings below at all times and at every
stage argued that the project included improper variances. Importantly, the crux of
all of the appellate proceedings, both in administrative proceedings and before this
Court, was not merely the presence of the variance itself, but that the presence of a
variance has a distinct legal and jurisdictional impact, to-wit: an application for a
Class II Special Permit has by definitions no variances and proceeds under Section
1305 of the Zoning Ordinance, while the presence of a variance requires a different
procedural tract (an application for a Major Use Special Permit under Article 17 of
the Zoning Ordinance).
Petitioners live and work within the Midtown Special District and adjacent
Wynwood community and appeared at the City commission meeting in person or
2
SAVAGE
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through counsel and are thereby impacted by the issuance of the Class II Special
Permit to a greater extent that the public at large. They again come to this Court to
direct the City to correctly apply its own Code and require that the proper
application process be followed as is required with a variance, or that the proper
application process be followed as is required without a variance, but not the
hybrid, unauthorized hodge-podge procedural track that was effectuated by the
Resolution now under review.
JURISDICTION
This Court has jurisdiction to issue writs of certiorari as set forth in Article
V, Section 5(b) of the Florida Constitution. This Court's certiorari jurisdiction is
properly invoked for review of final orders of local governmental boards. E.g.,
Florida Power & Light Co. v. City o/Dania, 761 So. 2d 1089, 1092 (Fla. 2000);
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Certiorari
review of quasi-judicial zoning decisions is a matter of right and constitutes firstlevel appellate review of such decisions. E.g., Broward County v. G.B. V. Int '/,
Ltd., 787 So. 2d 838, 843 (Fla. 2001); and see, Fla. R. App. P. 9.030(c).
3
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STATEMENT OF THE FACTS

1.
Midtown Miami Special District and the Property.

The Midtown Miami Special District is an infill development area within the
City of Miami. The site at issue in this case is located at 3055 North Miami
Avenue. (A:l at 2) (Mandate and Opinion of this Court, dated October 31,2014,
referred to herein as "A: 1" or "Opinion").
2.
Wal Mart's Application for a Class II Special Permit and the Governing
Code.
Wal-Mart submitted its application on August 21,2012 for a Class II Special
Permit. (A: 1 at 2). The Application sought approval for a Super Wal-Mart that
will include traditional retail merchandise with a full service grocery, garden
center, and liner space on the first and second floors. Id. (A: 1 at 1).
A Class II Special Permit is an administrative approval, and does not
implicate the public hearings that are required for a variance or Major Use Special
Permit (MUSP). Because of this, great power is vested in the Director in the
granting of a Class II Special Permit. The Code provides certain checks and
balances to counter and measure this power, such that: The Class II Special Permit
can only be granted if there is full compliance with all the applicable Code
provisions (with no variances).
The applicable provision of Miami 21 provides:
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627.2.3. Class II Special Permit.

Section 627.2.3.1. When required.
A Class II Special Permit shall be required prior to approval of any
permit (except special permits pursuant to Article 13) affecting the
height, bulk, location or exterior configuration of any existing
building or the construction of a new building.
Section 627.2.3.2. Considerations in making Class II Special Permit
determinations.
The purpose of the Class II Special Permit shall be to ensure
conformity of the application with the expressed intent of this district,
with the general considerations listed in section 1305, and with the
special considerations contained in the Design Standards.
Any variances (as defined in Article 19) soughtfrom the provisions

of the SD 27 regulations shall require such deviation to be
considered within the process for a Major Use Special Permit as
defined in Article 17 and the increased development thresholds as set
forth above shall not apply.
(A:2) (emphases added).
Importantly, Wal-Mart's application for a Class II Special Permit contained
a variance. Opinion at 9 (A: 1 at 9). Specifically, the application provided for five
loading berths, yet the applicable Code allowed for only three berths "total." Id. at
9-10. Thus, under the governing Code, the application should have been processed
and should have proceeded under the Major Use Special Permit (or "MUSP")
procedural Tract under Article 17 of the Code.
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The procedural process and track under Article 17 of the Code (for a MUSP)
is entirely different from the process and procedural track under Article 13 of the
Code (Class II Special Permit). The most important difference is that a Class II
Special Permit under Article 13 (Section 1305) is administratively approved by the
Director, and a formally noticed public hearing occurs only if interested persons
timely lodge an appeal and bear the burden of establishing error, as was done in the
first case brought before this Court.
Article 17 governing a MUSP, however, requires that the Director and the
City set down a hearing before the Planning Advisory Board (now the PZAB) that
will be noticed and held as olright (without the necessity of interested persons
lodging and presenting an appeal). 1702.6 through .8 (A:3 at 5). Importantly,
the matter is then also set down for a hearing before the Commission (without the
necessity of interested persons lodging and presenting an appeal), as ofright, with
the City and the applicant bearing all burdens, after all appropriate public notice.
Id.
3.
The Urban Development Review Board (UDRB).

The governing Design Standards for the Class II Special Permit mandate that
that: "All architectural design plans will be reviewed by UDRB as part of the
Class II permitting process, for compliance with these standards." (A:4). Despite
the fact that the application contained a variance, the application travelled as a
6
SAVAGE ,,~ LEGAL
Class II Special Permit and two meetings were held before the UDRB in February,
2013. Opinion at 2 (A:l at 2).
At the second UDRB meeting on February 20,2013, Chairman Behar asked
City Staff if it had asked the City Attorney whether any variances would be
required for the project. (A:5 at 24). Assistant Planning and Zoning Director
Carmen Sanchez reassured the UDRB Board that this was not the case. (A:S at 2425).
The applicants also assured the UDRB by answering in the affinnative when
they were asked by the Board to confirm that they were "supplying the required
number of berths for the Walmart." (A:5 at 41-42).
4.
The Appeal to the Planning and Zoning Appeals Board (PZAB).

On August 27,2013, the Appellants and Objectors filed an appeal of the
Class II Special Permit to the PZAB. (A: 10).
The appeal explained that the Class
II Special Permit had failed to meet Section 1305 of the Zoning Ordinance or
Section 627.2.3.2 of Appendix C to Miami 21, and failed to comport with the
requirements of Section 1903 of the Zoning Code because it approved variances
that did not meet Code standards, including:
627.1.115 SD 27.2: Variance From Maximum Number of

Loading Berths. Section 627.2.15 of the governing Code makes
perfectly clear that for "non-residential floor area up to two hundred
fifty thousand (250,000) square feet, three (3) berths total."
(emphasis added). As stated earlier, the Wal-Mart Project is 184,370
7
SAVAGE - LEGAL
square feet in size. Thus, the three berth maximum applies. Yet the
Class II Permit approves four (4) adjacent loading bays with no
mention or condition addressing this deviation which amounts to
nothing less than a variance.
(A:6 at 3-5). Most importantly, the written appeal to the PZAB made clear that:
This Appeal will explain that the Permit is in non-conformity with the
governing Code and law for several reasons, including: (1) the Permit
unlawfully grants variances, and by doing attempts an end-run around
the additional Board review and public input that occur when the
normal variance or Major Use Special Permit process is followed ...
(A:6 at 2) (emphasis added).
5.
The Hearing Before the PZAB.

The City of Miami Planning, Zoning and Appeals Board (PZAB) heard the
neighbors' appeal on October 2, 2013. (A:l at 2). At the conclusion of the

hearing, the PZAB voted to deny the appeal of the Class II Special Permit by a
vote of 6 to 4, with no findings. [d.
6.
The November 17,2013 Commission Hearing.

The Appellant Neighbors filed their appeal of the PZAB Resolution to the
City Commission on October 17,2013. (A:7). The City Commission's de novo

hearing was held on November 21,2013. (A:l at 3). The City Stafrs Fact Sheet
and package included the same materials as were provided by City Staff to the
PZAB, with the same recommendation, that the Commission deny the appeal and
uphold the approved special permit as issued.
8
SAV AGE - LEGAL
Counsel for the Appellants argued that the PZAB approval was an end-run
around the City's variance requirements. (A: 1 at 3). At the close of the
proceedings, the City Commission voted 3-0 (with two members absent) to deny
the appeal and approve the Class II Special Permit. Id.
The City's Resolution recited the same findings as set out in the Class II
Special Permit, and specifically stated that the application was reviewed according
to Section 1305 and the Midtown regulations and found to be sufficient. (A:8).
7.
The "Appeal" to this Court and this Court's Opinion.
The Petitioners lodged their Petition For Writ of Certiorari with this Court,
and the matter was briefed by the Petitioners, the applicants and the City. Oral
argument, supplemental authority, and supplemental briefs were submitted. This
Court issued a detailed nine-page Opinion, with the Mandate issuing on October
31,2014. (A:l).
With its Opinion, this Court agreed with the identification of the governing
law, City Code, and applicable procedures as identified and argued by the
Petitioners. (A: 1). The Court did not agree, however, with the Petitioners'
application of those Code provisions and procedures to the facts of the case,
holding that the findings by the City were sufficient under Section 1305, and
holding that the Court did not agree with the Petitioners on many of the variances
alleged by them. Id.
9
SAV AGE
<>.'
LEGAL
But importantly, the Court recognized, understood and held in favor of the
Petitioners on two critical points:
(1) Section 1305 and the administratively approved Class II Special Permit
is not the proper procedure in the presence of any variance; and
(2) the Director and the Commission did not follow the City's own
procedures and requirements when they allowed a variance in the Class II Special
Permit in the form of five loading berths instead of three berths "total." Id.
The foregoing two points are made clear by the plain text of the Opinion
where this Court stated and held as follows:
"The Petitioners argued that the PZAB approval was an end-run
around the City'S variance requirements." Opinion at 3.
"Petitioners present several grounds for quashing the City
Commission's Resolution, including that the Commission departed
from the essential requirements of the law by: ... (3) granting
variances under the guise of the Special Permit." Opinion at 4.
"Finally, the most compelling argument of the Petitioners is that the
Class II Special Penn it improperly granted variances, which are
subject to a stricter standard of review and notice and public hearing
process. In other words, Petitioners allege that a variance from the
Code cancels the Class II Special Permit and requires that the
10
SAVAGE "'~ LEGAL
application be resubmitted under other applicable provisions

governing variances." Opinion at 7.
"Since the Project provides for five (5) berths and the Code requires
three (3) berths total, this Court finds that the Commission's
Resolution finding that the Project complied with the requirements
under the Code is a departure from the essential requirements of the
law." Opinion at 10.
"For the above-stated reason, we hereby QUASH the Commission's
decision as set forth in Resolution R-13-0471 (File No. 13-0103ii),
and REMAND this cause for proceedings consistent herein." Opinion
at 10.
"YOU ARE HEREBY COMMANDED that such further proceedings
be had in said cause in accordance with the opinion of this Court
attached hereto and incorporated as part of this order, and with the
rules of procedure and laws of the STATE OF FLORIDA." (A:l at
Mandate page).
8.
Proceedings on Remand Before the City Commission and Resolution.

Despite the fact that this Court expressly held that the Class II Special
Permit contained a variance and thus the wrong process was used, on remand the
City of Miami issued a Resolution denying the appeal from the PZAB (the grounds
11
SAV AGE ..,.. LEGAL
of which had been held to be correct by this Court), and approving the decision of
the PZAB and the Class II Special Pennit. (A:9).
This is what the applicant and the City did to purport to comply with this
Court's Opinion: submit a document published only three days prior to the hearing
with revised plans that placed a small "x" and shading over one of the loading
berths, and labeling it a "staging area," with no actual substantive or structural
changes to the plans. (A: 10 and A: 11).
The Class II Application process was not initiated anew with new plans, and
a new Class II Special Permit process was not conducted. Nor was a new
application with the variance on the loading berths submitted under the MUSP
process, and MUSP proceedings were not conducted. Instead, the City and the
applicant sought to give as little import as possible to the Opinion by modifying
the Class II application after-the-fact with a small notation on the existing plans,
and relied (improperly) on all of the prior proceedings (which had been infected
with an unlawful variance) as a quick and easy way to "cure" all of the procedural
infirmities.
ARGUMENT
1.
Standard of Review.
On review of a zoning decision of a local governmental board, the Court
applies three-part standard set forth in City ofDeerfield Beach v. Vaillant, 419 So.
12
SAV AGE ~~ LEGAL
2d 624 (Fla. 1982). Board o/County Comm 'rs o/Brevard County v. Snyder, 627
So. 2d 469, 476 (Fla. 1993). The appellate court must determine: (i) whether the
administrative tribunal accorded due process of law; (ii) whether the administrative
tribunal applied the correct law, i.e., whether the essential requirements of law
were observed in the administrative proceedings; and (iii) whether the decision of
the administrative tribunal is supported by competent substantial evidence. E.g.,
Florida Power & Light Co. v. City ofDania, 761 So.2d 1089, 1092 (Fla. 2000);
Haines City Cmty. Dev. v. Heggs" 658 So. 2d 523, 530 (Fla. 1995); Vaillant, 419
So. 2d at 426.
In determining whether the City Commission followed the essential
requirements of law the Court must determine that the City followed the
procedural requirements imposed by the Code and did not renege on its promise to
its citizens to uphold the Code. E.g., Gulf & Eastern Development Corporation v.
City ofFort Lauderdale, 354 So. 2d 57 (Fla. 1978). Failure of a local government
to adhere to its own regulations constitutes a departure from the essential
requirements of the law. Rosa Hotel Developers, Inc. v. City ofDelray Beach, 10
Fla. L. Weekly Supp. 600b (Fla. 15 th Cir. Ct. 2003).
In applying the third prong of the Vaillant standard, this Court is obligated to
review the record to determine whether the administrative tribunal's decision was
supported by competent substantial evidence. E.g., Broward County v. G.B. V. Int'l
SAV AGi ~ LEGAL
Ltd., 787 So. 2d 838, 845 (Fla. 2001). If the Court finds that the City departed
from the essential requirements of law, it is axiomatic that there is no competent
substantial evidence in the record to support the decision made by the City
Commission.
2.
The City Again Refused to Follow Its Own Regulations.

A city is bound by the procedural requirements imposed by its own charter
and ordinances. E.g., Gulf & Eastern Development Corporation v. City ofFort
Lauderdale, 354 So. 2d 57, 61 (Fla. 1978).
This Court expressly held that the Director and the Commission departed
from the essential requirements of the law by approving a variance within the Class
II Special Permit process, contrary to the Code. (A: 1). This improper action
allowed the administrative approval of a problematic Class II Permit that otherwise
would be subjected to the strict scrutiny in a public forum that accompanies a
zoning variance application under the MUSP procedures in Article 17 of the Code.
This Court agreed with the Petitioners that the Director and the Commission
exceeded their authority by approving a Class II Special Permit that allowed a
variance from the provisions of the Zoning Code, which bypassed the PZAB' s and
Commission's exclusive jurisdiction over the grant of zoning variances under
governing Code sections.
This Court agreed with the Petitioners' identification of the governing Code
provisions, and quoted Article 13 of Ordinance 11000, stating: "The Director of

the Department of Planning and Zoning shall be solely responsible for review
compliance and consideration of applications for Class II Special Pennits."
Opinion at 4 (emphasis in original).
Moreover, the Court agreed with the Petitioners, and quashed the City'S
Resolution for allowing a Class II Special Permit process to proceed with an illegal
variance embedded therein. Id. The City Code expressly provides that if an
application features a variance, it must proceed under the MUSP process and
Article 17 (and not the Class II process under Article 13). (A:2; 627.2.3). Article
17 is substantively and procedurally different from Article 13, providing for public
hearings, public notice, and presentations by the City Staff, all of which is in stark
contrast to the appellate process that must be initiated by affected persons under
the Class II Special Permit process under Article 13 (with those persons bearing
the burden of lodging and prosecuting the appeal). (A:3; 1702.6 through .8).
Thus the distinction between the two procedural tracts is substantive and
procedural. They cannot be interchanged or combined in a hybrid manner.
The governing Code in this case imposes ajurisdictional switch in the
procedural track: if there is a variance in an application, then the applicant must
submit an application for a MUSP and proceed under the MUSP procedures. If
there is no variance, then the applicant must submit an application for a Class II
SAVAG~ ~ LEGAL
Special Permit (with no variance unlawfully buried therein). Never the twain shall
meet. Indeed the Code makes clear that "a variance is not a special permit."
1901 of the Zoning Ordinance.

As stated above, the authority to issue a Class II Special Permit lies
exclusively with the Director, according to the Class II Special Permit process.
Opinion at 4. This Court even recognized and recited the exclusive nature of the
jurisdiction of the Director over Class II Special Permit compliance review. Id.
On the other hand, the authority to issue a MUSP lies with the PZAB and the
Commission, after recommendations and submissions by the Director.
(A:3;
1702.5 through .8).

This Court recognized and collected the citations for the axiomatic rule that
failure of the City to follow its own regulations "constitutes a departure from the
essential requirements of the law." Opinion at 6.
Because the original application featured an unlawful variance buried in the
Class II Special Permit, as this Court expressly held, then it follows that:
The Zoning Director had no jurisdiction to review the application and
act on it as he did (as a proper Class II Special Permit application).
The Director was without jurisdiction to make referrals to the
Neighborhood Enhancement Team (NET) Offices as he did.
The Director was without jurisdiction to refer and convene
proceedings of the UDRB.

The Petitioners were unlawfully forced to challenge the wrong Permit
in the wrong process, since, had the application been correctly
traveling under Article 13, then the City would have had to convene a
hearing before the PZAB and the Commission, with appropriate
notice and submissions. The Petitioners would not have been
required to prosecute their appeal under the Class II Special Permit
regime.
Upon appeal to the City Commission on the grounds that a variance
infected the Class II Permit proceedings, the City Commission would
be required to grant the appeal, and not do what it did here, uphold the
permit as somehow proper.
The foregoing infected and incorrect proceedings cannot be cured by
slipping in a mark and notation to the plans and the very end of a long and flawed
Class II Special Permit process. If the original application did include a variance,
as this Court has expressly held, then the Petitioners and indeed all of the citizenry
were entitled to the hearings, notice and proceedings required by Article 13 and the
MUSP process. If an original application is to be submitted without a variance,
then the Petitioners and indeed all of the citizenry are entitled to the hearings,
notice and proceedings required by the Class II Special Permit process, without the
SAV AGt
ZLEGAL
presence of an illegal variance (as was present below).

The Court is again respectfully urged to require the City"to follow its own
procedures in connection with this permit application, under the unbroken line of
decisional law requiring this. See Opinion at 6-7 (stating: "It is well established
that "[fJailure of an agency to adhere to its own regulations constitutes a departure
from the essential requirements of the law." Dougherty v. City ofMiami, 13 Fla.
L. Weekly Supp. 959a (Fla. 11 th Cir. Ct. July 14, 2006), cert. denied, 944 So. 2d
370 (Fla. 3d DCA 2006) (emphasis added); citing to Rosa Hotel Developers, Inc. v.
City ofDelray Beach, 10 Fla. L. Weekly Supp. 600b (Fla. 15 th Cir. Ct. 2003).").
This Court has over the years noted and collected several case authorities
reiterating that enactments are invalid without strict compliance with procedural
code provisions:
The Court takes note of a number of cases which support the principle
that an ordinance which fails to comply with mandatory procedural
requirements is invalid. Gulf and Eastern Development Corporation v.
City ofFt. Lauderdale, 354 So.2d 57 (Fla. 1978) (rezoning ordinance
invalid where city failed to comply with procedural requirements
imposed in its charter and ordinances); O'Connor v. Dade County, 410
So.2d 605 (Fla. 3d DCA 1982) (rezoning vacated and set aside where
county failed to seek recommendation of its developmental impact
committee as mandatorily required by ordinance): Save Brickell
Avenue, Inc. v. City of Miami, 396 So.2d 146 (Fla. 3d DCA 1981)
(affected citizen has standing to attack zoning resolution on ground
that it is void or invalid by reason of departure from any essential
procedure preceding its enactment).
Hialeah Citizens Alliance v. City of Hialeah, 2 Fla. L. Weekly Supp. 44a (Fla. 11 th
Jud. eire Dec. 10, 1993).

The City must process the application in this case as is contemplated and
required by its own Code. E.g., Town ofLongboat Key v. Island Property Owners
Coalition, 95 So. 3d 1037, 1042-43 (Fla. 2d DCA 2012) ("As the wording of its
laws binds a legislature, the Town is bound by the wording of its Code.").
Otherwise, the approval memorialized in the Commission's Resolution is void.
E.g., Gulf & Eastern Development Corporation v. City of Fort Lauderdale, 354 So.
2d 57, 61 (Fla. 1978) (a city is bound by the procedural requirements imposed by
its own charter and ordinances); 0 'Conner v. Dade County, 410 So. 2d 605, 606
(Fla. 3d DCA 1982) (county commission required to obtain recommendation of
development impact committee per code); Webb v. Town Council ofHilliard, 766
So.2d 1241, 1244 (Fla. 15t DCA 2000) ("Attempts of local government to grant
zoning changes without compliance with procedural requirements have been
deemed invalid and void."); 0 'Conner, 410 So. 2d at 606; City ofMiami Beach v.
Consolo, 279 So. 2d 76, 79 (Fla. 3d DCA 1973); Florida Tallow Corp. v. Bryan,
237 So. 2d 308, 310 (Fla.
4th
DCA 1970).
SAV AG~ ~ LEGAL
CONCLUSION
Based upon the foregoing reasons and legal authority, certiorari is both
necessary and justified to quash the City's denial of the appeal of the Class II
Special Permit. The approval of the Class II Special Permit by the City
Commission is contrary to the governing Code in Section 627, Appendix C, Miami
21 Zoning Code as well as applicable provisions of Zoning Ordinance 11000. This
unwarranted and erroneous approval ignored the express procedural process
required by City Code, in a clear departure froln the essential requirements of law.
Respectfully sublnitted,
Paul C. Savage, Esq.
Florida Bar No. 088587
The Law Offices of Paul C. Savage, P.A.
100 Almeria Avenue
Suite 220
Telephone: (305) 444-7188
Facsitnile: (305) 444-7188
I celtify that a copy of this Appendix to Petition for Writ of Certiorari was
served by elnail and/or U.S. Mail on January 2, 2013 to: Victoria Mendez, Esq.,
law@lnialnigov.coln 44 S. W. 2nd Avenue, Suite 945, Miami, Florida 33130 and
Richard 1. Lydecker, Esq., 1221 Brickell Avenue, Floor 19, Miami, Florida 33131
(rl@lydeckerdiaz.com).
CERTIFICATE OF COMPLIANCE
I hereby certi fy that this petition was prepared in Times New Roman, 14point font, in cOlnpliance with Rule 9.100(1) of the Florida Rules of Appellate
Procedure.
APPENDIX
H

COUNTY, FLORIDA
APPELLATE DIVISION
CASE No. 14-492-AP
Resolution/File 13-01 030iia
JACOB PFEFFER,
CATALINA GUTIERREZ,
MONIKA POBOG-MALINOWSKA,
VINTAGE LIQUOR
AND WINE BAR II, ROSI
BARRIOS, BLO DRY BAR
FLORIDA, LLC NIKJA HEAD
KANDI, LLC, SANDIROSE
MADGER, YASMINE GARATE,
AND ANTHONY DAVIDE,
DAVID LE BATARD, LEBO STUDIOS,
Petitioners,
v.
Respondents.
AMENDEDt PETITION FOR WRIT OF CERTIORARI
This Amended Petition for Writ of Certiorari is submitted to accommodate the

transcript of the subject proceeding, which became available after the
submission of the original Petition. The parties have conferred and have
submitted to an agreed-upon revised briefing schedule that allows for the
Amended Petition, but also tracks as near as possible to the original briefing
schedule.
SAVAGE .".~ LEGAL
CASE No. 14-492-AP

Petitioners Jacob Pfeffer, Catalina Gutierrez, Monika Pobog-Malinowska,
Vintage Liquor and Wine Bar II, Rosi Barrios, Blo Dry Bar Florida, LLC NIKJA
Batard and Lebo Studios ("Petitioners") petition this Court for a writ of certiorari
to review and quash Resolution/File No. 13-01 030iia. This is the second time that
this matter has been before this Court.
This case involves the issuance of a Class II Special Permit by the Director
of Planning and Zoning, dated August 12, 2013. The Petitioners appealed the
Class II Permit to the Planning and Zoning Appeals Board ("PZAB"). The PZAB
denied the appeal, and the PZAB's decision was appealed to the City Commission
(the "Commission"), resulting in a hearing before the Commission on November
21, 2013. The Commission voted to uphold the decision of the PZAB and the
Commission's Resolution was appealed to this Court.
After full briefing, oral argument and supplement authority submissions, this
Court issued a nine-page Opinion, wherein it agreed with the argument of the
Petitioners that the subject Class II Special Permit contained an unlawful variance
and thus travelled under the wrong procedural process. The Court accordingly
quashed the subject resolution of the Commission, and remanded the matter for
"proceedings consistent" with the Court's Opinion.
2
SAVAGE ~~ LEGAL
CASE No.
14-492-AP
Petitioners come back to the Court because upon remand, the Commission
again upheld the decision of the PZAB (even though this Court expressly ruled that
the basis of the appeal to the PZAB and the Commission was correct), without
following the proper process that would be implicated by a faithful application of
this Court's Mandate. Specifically, Petitioners at all times maintained that the
Class II contained a variance and thus was on the wrong procedural track. This
Court agreed. On remand the Commission took the approach that if they removed
the item that caused the variance then the proceedings below would be "fixed."
The Petitioners bring this matter back to the Court because if the application
had a variance, as this Court has ruled, it needed to go through a different
procedural process. The City and Wal-Mart cannot take the shortcut of relying
upon the erroneous prior proceedings that were found by this Court to be infected
with an unlawful variance.
INTRODUCTION
The administrative appellate proceedings below at all times and at every

stage argued that the project included improper variances. The crux of Petitioners'
argument during all of the appellate proceedings, both in administrative
proceedings and before this Court, was not merely pointing out the presence of the
variance itself, but also that the presence of any variance has a distinct legal and
3
SAVAGE ....~ LEGAL
CASE No. 14-492-AP

jurisdictional impact. An application for a Class II Special Permit has by
definition no variances, and proceeds under Article 13, Section 1305 of the Zoning
Ordinance, while the presence of a variance requires a different procedural tract
(an application for a Major Use Special Permit under Article 17 of the Zoning
Ordinance or a Variance under Article 19 of the Zoning Ordinance).
Petitioners live and work within the Midtown Special District and adjacent
Wynwood community and appeared at the City commission meeting in person or
through counsel and are thereby impacted by the issuance of the Class II Special
Permit to a greater extent that the public at large. They again come to this Court to
direct the City to correctly apply its own Code, and require that the proper
application process be followed as is required with a variance, or that the proper
application process be followed as is required without a variance, but not the
hybrid, unauthorized hodge-podge procedural track that was effectuated by the
Resolution now under review.
JURISDICTION
This Court has jurisdiction to issue writs of certiorari as set forth in Article
V, Section 5(b) of the Florida Constitution. This Court's certiorari jurisdiction is
properly invoked for review of final orders of local governmental boards. E.g.,
Florida Power & Light Co. v. City a/Dania, 761 So. 2d 1089, 1092 (Fla. 2000);
4
SAVAGE ~~ LEGAL
CASE No. 14-492-AP
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Certiorari
review of quasi-judicial zoning decisions is a matter of right and constitutes firstlevel appellate review of such decisions. E.g., Broward County v. G.B. V Int'l,
Ltd., 787 So. 2d 838, 843 (Fla. 2001); and see, Fla. R. App. P. 9.030(c).
STATEMENT OF THE FACTS

1.
Midtown Miami Special District and the Property.

The Midtown Miami Special District is an infill development area within the
City of Miami. The site at issue in this case is located at 3055 North Miami
Avenue. (A:l at 2) (Mandate and Opinion of this Court, dated October 31,2014,
referred to herein as "A: 1" or "Opinion").
2.
Wal Mart's Application for a Class II Special Permit and the Governing
Code.
Wal-Mart submitted its application on August 21, 2012 for a Class II Special
Permit. (A: 1 at 2). The Application sought approval for a Super Wal-Mart that
will include traditional retail merchandise with a full service grocery, garden
center, and liner space on the first and second floors. Id. (A: 1 at 1).
A Class II Special Permit is an administrative approval, and does not
implicate the public hearings that are required for a variance or Major Use Special
Permit (MUSP). Because of this, great power is vested in the Director in the
5
SAV AGE ~,~ LEGAL
CASE No. 14-492-AP
granting of a Class II Special Permit. The Code provides certain checks and
balances to counter and measure this power, such that: The Class II Special Permit
can only be granted if there is full compliance with all the applicable Code
provisions (with no variances).
The applicable provision of Miami 21 provides:
627.2.3. Class II Special Permit.

Section 627.2.3.1. When required.
A Class II Special Permit shall be required prior to approval of any
permit (except special permits pursuant to Article 13) affecting the
height, bulk, location or exterior configuration of any existing
building or the construction of a new building.
Section 627.2.3.2. Considerations in making Class II Special Permit
determinations.
The purpose of the Class II Special Permit shall be to ensure
conformity of the application with the expressed intent of this district,
with the general considerations listed in section 1305, and with the
special considerations contained in the Design Standards.
Any variances (as defined in Article 19) soughtfrom the provisions

of the SD 27 regulations shall require such deviation to be
considered within the process for a Major Use Special Permit as
defined in Article 17 and the increased development thresholds as set
forth above shall not apply.
(A:2) (emphases added).
Importantly, Wal-Mart's application for a Class II Special Permit contained
a variance. Opinion at 9 (A: 1 at 9). Specifically, the application provided for five
6
SAVAGE .:..' LEGAL
CASE No. 14-492-AP
loading berths, yet the applicable Code allowed for only three berths "total." Id. at
9-10. Thus, under the governing Code, the application should have been processed
and should have proceeded under the Major Use Special Permit (or "MUSP")
procedural Tract under Article 17 of the Zoning Code and or under the Variance
procedures in Article 19 of the Zoning Code.
The procedural process and track under Article 17 of the Code (for a MUSP)
is entirely different from the process and procedural track under Article 13 of the
Code (Class II Special Permit). The most important difference is that a Class II
Special Permit under Article 13 (Section 1305) is administratively approved by the
Director, and a formally noticed public hearing occurs only if interested persons
timely lodge an appeal and bear the burden of establishing error, as was done in the
first case brought before this Court.
Article 17 governing a MUSP, however, requires that the Director and the
City set down a hearing before the Planning Advisory Board (now the PZAB) that
will be noticed and held as of right (without the necessity of interested persons
lodging and presenting an appeal). 1702.6 through .8 (A:3 at 5). Importantly,
the matter is then also set down for a hearing before the Commission (without the
necessity of interested persons lodging and presenting an appeal), as of right, with
7
SAV AGE .:-.' LEGAL
CASE No. 14-492-AP

the City and the applicant bearing all burdens, after all appropriate public notice.
Id.
3.
The Urban Development Review Board (UDRB).

The governing Design Standards for the Class II Special Permit mandate that
that: "All architectural design plans will be reviewed by UDRB as part of the
Class II permitting process, for compliance with these standards." (A:4). Despite
the fact that the application contained a variance, the application travelled as a
Class II Special Permit and two meetings were held before the UDRB in February,
2013. Opinion at 2 (A: 1 at 2).
At the second UDRB meeting on February 20, 2013, Chairman Behar asked
City Staff if it had asked the City Attorney whether any variances would be
required for the project. (A:5 at 24). Assistant Planning and Zoning Director
Carmen Sanchez reassured the UDRB Board that this was not the case. (A:5 at 2425).
The applicants also assured the UDRB by answering in the affirmative when
they were asked by the Board to confirm that they were "supplying the required
number of berths for the Walmart." (A:5 at 41-42).
8
SAVAGE ~-.:- LEGAL
CASE No. 14-492-AP
4.
The Appeal to the Planning and Zoning Appeals Board (PZAB).

On August 27, 2013, the Appellants and Objectors filed an appeal of the
Class II Special Permit to the PZAB. (A:6).
The appeal explained that the Class
II Special Permit had failed to meet Section 1305 of the Zoning Ordinance or
Section 627.2.3.2 of Appendix C to Miami 21, and failed to comport with the
requirements of Section 1903 of the Zoning Code because it approved variances
that did not meet Code standards, including:
627.1.115 SD 27.2: Variance From Maximum Number of

Loading Berths. Section 627.2.15 of the governing Code makes
perfectly clear that for "non-residential floor area up to two hundred
fifty thousand (250,000) square feet, three (3) berths total."
(emphasis added). As stated earlier, the Wal-Mart Project is 184,370
square feet in size. Thus, the three berth maximum applies. Yet the
Class II Permit approves four (4) adjacent loading bays with no
mention or condition addressing this deviation which amounts to
nothing less than a variance.
(A:6 at 3-5). Most importantly, the written appeal to the PZAB made clear that:
This Appeal will explain that the Permit is in non-conformity with the
governing Code and law for several reasons, including: (1) the Permit
unlawfully grants variances, and by doing attempts an end-run around
the additional Board review and public input that occur when the
normal variance or Major Use Special Permit process is followed ...
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CASE No.
5.
14-492-AP
The Hearing Before the PZAB.

The City of Miami Planning, Zoning and Appeals Board (PZAB) heard the
neighbors' appeal on October 2, 2013. (A: 1 at 2). At the conclusion of the

hearing, the PZAB voted to deny the appeal of the Class II Special Permit by a
vote of 6 to 4, with no findings. ld.
6.
The November 17, 2013 Commission Hearing.

The Appellant Neighbors filed their appeal of the PZAB Resolution to the
City Commission on October 17,2013. (A:7). The City Commission's de novo

hearing was held on November 21,2013. (A:l at 3). The City Staffs Fact Sheet
and package included the same materials as were provided by City Staff to the
PZAB, with the same recommendation (that the Commission deny the appeal and
uphold the approved special permit as issued).
Counsel for the Appellants argued that the PZAB approval was an end-run
around the City's variance requirements. (A: 1 at 3). At the close of the
proceedings, the City Commission voted 3-0 (with two members absent) to deny
the appeal and approve the Class II Special Permit. ld.
The City's Resolution recited the same findings as set out in the Class II
Special Permit, and specifically stated that the application was reviewed according
to Section 1305 and the Midtown regulations and found to be sufficient. (A:8).
10
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CASE No. 14-492-AP
7.
The Petition for Writ of Certiorari to this Court and this Court's
Opinion.
The Petitioners lodged their Petition For Writ of Certiorari with this Court,
and the matter was briefed by the Petitioners, the applicants and the City. Oral
argument, supplemental authority, and supplemental briefs were submitted. This
Court issued a detailed nine-page Opinion, with the Mandate issuing on October
31, 2014. (A: 1). The Opinion is now reported at Pfeffer v. City of Miami, 22 Fla.
L. Weekly Supp. 424b (Fla. 11th Cir. October 14,2014) (Attachment A).
With its Opinion, this Court agreed with the identification of the governing
law, City Code, and applicable procedures as identified and argued by the
Petitioners. (A: 1). The Court did not agree, however, with the Petitioners'
application of those Code provisions and procedures to the facts of the case,
holding that the findings by the City were sufficient under Section 1305, and
holding that the Court did not agree with the Petitioners on many of the variances
alleged by them. Id.
The Court, however, did hold in favor of the Petitioners on two critical
points:
(1) Section 1305 and the administratively approved Class II Special Permit
is not the proper procedure in the presence of any variance; and
11
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CASE No.
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(2) the Director and the Commission did not follow the City's own
procedures and requirements when they allowed the application to proceed as a
Class II Special Permit when it was infected with a variance in the form of five
loading berths instead of three berths "total." ld.
The foregoing two points are made clear by the plain text of the Opinion
where this Court stated and held as follows:
"The Petitioners argued that the PZAB approval was an end-run
around the City's variance requirements." Opinion at 3.
"Petitioners present several grounds for quashing the City
Commission's Resolution, including that the Commission departed
from the essential requirements of the law by: ... (3) granting
variances under the guise of the Special Permit." Opinion at 4.
"Finally, the most compelling argument of the Petitioners is that the
Class II Special Permit improperly granted variances, which are
subject to a stricter standard of review and notice and public hearing
process. In other words, Petitioners allege that a variance from the
Code cancels the Class II Special Permit and requires that the
application be resubmitted under other applicable provisions
governing variances." Opinion at 7.
12
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CASE No. 14-492-AP

"Since the Project provides for five (5) berths and the Code requires
three (3) berths total, this Court finds that the Commission's
Resolution finding that the Project complied with the requirements
under the Code is a departure from the essential requirements of the
law." Opinion at 10.
"For the above-stated reason, we hereby QUASH the Commission's
decision as set forth in Resolution R-13-0471 (File No. 13-0103ii),
and REMAND this cause for proceedings consistent herein." Opinion
at 10.
"YOU ARE HEREBY COMMANDED that such further proceedings
be had in said cause in accordance with the opinion of this Court
attached hereto and incorporated as part of this order, and with the
rules of procedure and laws of the STATE OF FLORIDA." (A:1 at
Mandate page).
8.
Proceedings on Remand Before the City Commission on November 20,

2014, and the City's Resolution.
Despite the fact that this Court expressly held that the Class II Special
Permit contained a variance and thus the wrong process was used, on remand the
City of Miami issued a Resolution denying the appeal from the PZAB (the grounds
13
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CASE No. 14-492-AP
of which had been held to be correct by this Court), and approving the decision of
the PZAB and the Class II Special Permit. (A:9).
This is what the applicant and the City did to purport to comply with this
Court's Opinion: submit a document published only three days prior to the hearing
with revised plans that placed a small "x" and shading over one of the loading
berths, and labeling it a "staging area," with no actual substantive or structural
changes to the plans. (A:I0 and A:ll).
The Class II Application process was not initiated anew with new plans, and
a new Class II Special Permit process was not conducted. Nor was a new
application with the variance on the loading berths submitted under the MUSP
process, and MUSP proceedings were not conducted. Instead, the City and the
applicant sought to give as little import as possible to the Opinion by modifying
the Class II application after-the-fact with a small notation on the existing plans,
and relied (improperly) on all of the prior proceedings (which had been infected
with an unlawful variance) as a quick and easy way to "cure" all of the procedural
infirmities.
At the hearing before the City Commission occurring on November 20,
2014, the undersigned argued as followed before the Commission:
My arguments, as briefed up for the PZAB, for this Commission and,
again, in front of the appellate court, was at all times an argument
14
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CASE No.
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about process. It was not merely an argument about three versus five
loading berths.
The reason I was talking about those loading berths was because, if
you have a variance, you have no business traveling under the process
of a Class II Special Permit. A Class II Special Permit is a special
species that is purely administratively approved.
And without additional hearings and other proceedings that are
required in a Major Use Special Permit, where a variance -- as a prime
example, the last matter before you was a variance. People were
talking about hardship standards. It's another animal altogether.
So what I was arguing in front of all tribunals was that this has
variances. It does not need to be -- it should not have been treated as a
Class II Special Permit.
We were robbed of those procedural points of entry and public
hearings and all of those things that are there in a Major Use Special
Permit and that are not there in a Class II Special Permit.
So the Court ultimately agreed with me, [but rejected] many of the
variances that I identified. And I had a long list. The court said, Mr.
Savage, you're correct in the law, but in the application of the law to
the facts, we disagree with you, that was not a variance. Let's go to the
next one. All of the things that your City Attorney enumerated, no,
Mr. Savage, that's not a variance.
But they got down to the loading berths. And they said, yes, the code
says three berths total. We construe Florida Statutes everyday of our
lives. As judges, we can read what total means. I have three children
total; my cholesterol reading is so much total. I know what total
means. You don't get five without a variance. You get three.
Because there's a variance, and all I needed was one, and the Court
said that my most compelling argument is that the Class II Special
Permit improperly granted variances, which are subject to a stricter
standard of review, notice and public hearing process.
15
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CASE No.
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The court goes on to say, in other words, Petitioners allege that a

variance from the code cancels the Class II Special Permit and
requires that the application be resubmitted under other applicable
provisions governing variances.
So I was right, there was a variance. It needed to go to another
process. And to come back down and read this as - and pretend that it
was only about those loading berths, and slap a Band Aid on it and
say, oh, well, take out the berths, I'm sorry, that is not bringing forth -those are not proceedings consistent with the opinion of the court.
That's an oversimplified and facile reading of the opinion.
Attachment B at 9-14.
Counsel for Wal-Mart responded and argued to the Commission as follows:
Okay, so the legal opinion from the court that says now it's three.
Okay, so I got the opinion. We looked at it. We went back. I pulled
out my eraser. And I looked at the plans. I said, all right, let's make it
three. Let's conform our plans to what the appellate court told us to
do, because they just told us, everything is good except for make it
three berths. We said, all right, we'll make it three berths. It's not a big
deal, actually. It actually works out better for us. So we conformed to
it and made it three berths. Notwithstanding, they want to have a
debate and talk about variances.
Attachment B at 17.
While the inquiry, discussion and argument at the City Commission hearing
understandably centered on the correct scope and meaning of the Court's Opinion
and instructions on remand, Counsel for Wal-Mart inexplicably argued that the
Petitioners were seeking to have the Commission "overrule" the appellate Court:
And my esteemed colleague has argued to you the same things that
were argued before. And, in effect, requested you, this body, reverse
16
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CASE No.
14-492-AP
the appellate court, 'cause that's what he's asking. He's saying I don't
like the process. He's saying we should not have done a Class II
permit.
Well, ifhe felt that way, he argued in front of the appellate court and
the appellate court disagreed with him. And he had another appellate
opportunity, and that was to take it to the Third DCA. And you know
what, they abandoned their appeal. They abandoned it.
If they felt that the process was wrong regarding a Class II permit, or
whether or not a variance was gone or something that was wrong with
that appellate decision, they should have taken the next appeal, but
they chose to abandon it. And they come back to you, this
Commission, and ask you to reverse the appellate court. And that I
would respectfully suggest is something you just cannot do.
When the discussion turned to the correct current procedural posture of the
matter following this Court's quashal, Counsel for the Petitioners argued:
Well, a de novo hearing of that appeal was, I was at that time
complaining that the PZAB got it wrong, because they didn't find a
variance. Well, guess what? I'm standing on an appellate court
opinion that said, you know what, there was a variance. So you're still
going to deny my appeal? I was right, there was a variance.
Attachment B at 3 1.
Whi Ie working to construe the Court's Opinion and meaning upon remand,
Vice Chair Hardemon remarked:
Now, it doesn't then say, because they departed from the essential
requirements 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.
17
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CASE No.
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What it goes on to say is that for the above stated reasons, we hereby
quash 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 said
that the applicant at the time must then resubmit their application in
accordance -- just as the same way it mentioned resubmitted the
application in your argument, having said that, I would think that then
there would need to be some re-submittance of the application and
that portion has to be reconsidered. I don't see that.
Also struggling with the proper course following the Court's Opinion and
remand, Commissioner Carollo noted:
It seems to me that the court has dictated that, yes, there was a
variance, that the variance is that there was five instead of three. So
fix it and then you have no variance. Therefore, then you allow the
Special Class II Permit to coexist.
The reason why it may not be allowed is because we did find the
variance. The variance was you did five total instead of three. Fix it.
So you fix it. We do three variance -- I'm sorry, three loading berths,
then you have no variance.
Therefore, it's allowed, 'cause the rest of the process was correct.
That's the way I'm reading it or the way I'm understanding it.
Attachment B at 45.
When the proceedings were opened for public comment, an interested
member of the public, Grant Stem, sought to explain the effect of the Court's
18
SAVAGE ~,~ LEGAL
CASE No.
14-492-AP
quashal of the City's Resolution by taking the unusual step of playing back a part
of the Oral Argument held before the Court:
And one thing that nobody has mentioned tonight is that the court
awarded us quashal. Quashal is the highest remedy. And I would like
to play 30 seconds of the oral argument where the judges and counsel
Paul Savage discuss what does quashal mean, because this is key,
quash and remand for proceedings consistent herein. Let's listen to the
proceedings. This is 30 seconds.
(Thereupon, the audio was played and the following was heard:)
"MR. SAVAGE: This was a matter that had variances. It was put
through as a matter of administrative approval. It was the improper
procedure. And that's the legal question that I'm asking your Honor to
consider under the case law.
"UNIDENTIFIED JUDGE 1: And what you'd like us to do is quash
the resolution and send it back and have "UNIDENTIFIED JUDGE 2: And go through the variance procedure.
"MR. SAV AGE: Yes, I did attend a local government seminar in
Orlando recently. And I learned from a professor, someone smart
there, who said quashal is the only remedy on --"
(Thereupon, the audio concluded).
Attachment B at 63. Mr. Stem went on to argue:
This is a miscarriage. This permit has been nullified by the court
system.
To hear it today, without the proper referrals, without going to the
PZAB, it's not right.
19
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CASE No.
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Attachment B at 65.
When asked if the Court's Opinion or case law expressly required a new
application, counsel for the Petitioners responded: "Well, the case law - I only
need -- well, there are rules of appellate procedure and many cases that say that
you must follow the mandate of the appellate court." Attachment B at 67-68.
Commissioner Hardemon asked: "Because that word 'proceedings,' I
believe that becomes the phrase that we're now concerned about. Proceedings, is it
just a matter -- are we saying that it is this proceeding, or we're considering
everything de novo or is it proceedings as far as a new application being submitted
for the special permit?" Attachment B at 68.
The City Attorney instructed the Commission as follows:
And if I may just briefly, and I think this will resolve most questions
and we can just hone in on the three issue -- three berths' issue, "F or
the above-stated reason, we hereby quash the Commission's decision
as set forth in Resolution R13." It doesn't say quash everybody's
decision. It doesn't say all decisions. It doesn't say start all over.
Commissioner Sarnoff then moved to deny the appeal from the PZAB as
follows:
So now here's my motion. I move to deny the appeal, because the
doctrine of the law of the case this matter is before the Commission
on a limited issue.
20
SAVAGE = LEGAL
CASE No.
14-492-AP
Simply stated, that doctrine is that those points of law adjudicated in a

prior appeal are binding in order to promote stability of judicial
decisions and to avoid piecemeal litigation.
Attachment at 80.
Commissioner Sarnoff also noted: "Questions of law actually decided on
appeal must govern the case in the same court in the same trial through all
subsequent stages of the proceedings." Attachment B at 81.
Near the end of the City Commission hearing, the Planning and Zoning
Director testified as follows:
I, as your Planning and Zoning Director, stand corrected by the court.
I want to assure this Commission that the mistake made by your
Planning and Zoning Department is not to have overlooked a
variance. That is a rather significant issue. And I'm here to tell you
that has never happened and it will never happen, at least under my
watch. I'm 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.
I'm humbled. I, my predecessors, had always opined that that meant
three was a minimum, and we could certainly exceed it. It turns out,
as the court says, that the plain meaning of the word total makes it so
that it cannot be interpreted reasonably as being more than three. We
stand corrected. We're humbled by it.
I'm here to tell you, though, and this is the important thing, that had
this been correctly interpreted to mean that only three loading berths
were required, you would have had before you, one year ago, exactly
the project that you are affirming today.
21
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CASE No. 14-492-AP

Attachment B at 83.
Thereafter the Commission voted to deny the Petitioners' appeal from the
PZAB, and grant the Class II Special Permit by Resolution (A:9).
ARGUMENT
1.
Standard of Review.
On review of a zoning decision of a local governmental board, the Court
applies three-part standard set forth in City of Deerfield Beach v. Vaillant, 419 So.
2d 624 (Fla. 1982). Board of County Comm'rs of Brevard County v. Snyder, 627
So. 2d 469, 476 (Fla. 1993). The appellate court must determine: (i) whether the
administrative tribunal accorded due process of law; (ii) whether the administrative
tribunal applied the correct law, i.e., whether the essential requirements of law
were observed in the administrative proceedings; and (iii) whether the decision of
the administrative tribunal is supported by competent substantial evidence. E.g.,
Florida Power & Light Co. v. City ofDania, 761 So. 2d 1089, 1092 (Fla. 2000);
Haines City Cmty. Dev. v. Heggs" 658 So. 2d 523, 530 (Fla. 1995); Vaillant, 419
So. 2d at 426.
In determining whether the City Commission followed the essential
requirements of law the Court must determine that the City followed the
procedural requirements imposed by the Code and did not renege on its promise to
22
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CASE No. 14-492-AP

its citizens to uphold the Code. E.g., Gulf & Eastern Development Corporation v.
City of Fort Lauderdale, 354 So. 2d 57 (Fla. 1978). Failure of a local government
to adhere to its own regulations constitutes a departure from the essential
requirements of the law. Rosa Hotel Developers, Inc. v. City ofDelray Beach, 10
Fla. L. Weekly Supp. 600b (Fla. 15 th Cir. Ct. 2003).
In applying the third prong of the Vaillant standard, this Court is obligated to
review the record to determine whether the administrative tribunal's decision was
supported by competent substantial evidence. E.g., Broward County v. G.B. V Int'l
Ltd., 787 So. 2d 838, 845 (Fla. 2001). If the Court finds that the City departed
from the essential requirements of law, it is axiomatic that there is no competent
substantial evidence in the record to support the decision made by the City
Commission.
2.
The City Departed from the Essential Requirements of the Law by

Requiring an Express Direction from this Court to Grant the
Petitioner's Appeal on Remand.
The transcript of the proceedings before the Commission illustrates the
City's misunderstanding of this Court's quashal Order and requirement to conduct

"proceedings consistent" with the Opinion. For example, Commissioner
Hardemon and the City Attorney both emphasized that this Court did not expressly
direct the City to grant the Petitioners' appeal of the Class II Special Permit from
the PZAB. Attachment B at 43-44 and 69-70.
SAV AG:t~ LEGAL
CASE No.
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But as was noted at the Oral Argument before this Court (attachment B at
63) and has been since confirmed by examination of the case authorities, quashal is
the only remedy available on certiorari review, and the Court is in fact prohibited
from directing a certain outcome on remand proceedings. See, e.g., Broward
County v. G.B. V Int'l Ltd., 787 So. 2d 838, 844 at fn. 18 (Fla. 2001) (collecting
case authorities that explain that a court's certiorari review power does not extend
to directing that any particular action be taken, but is limited to quashing the order
reviewed).
Thus, the City erred by refusing to grant the appeal because the Court did
not expressly order this outcome when this Court could not have issued such an
explicit instruction under the law. E.g., G.B. V at 844.
"When the order is quashed, as it was in 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 ..
." G.B. V. at 844 (quoting Tamiami Trail Tours v. Railroad Commission, 174 So.
451, 454 (1937.
Thus the procedural posture of the case was where it stood at
the time of the last Commission hearing, to-wit: an appeal of the PZAB's denial of
the Petitioner's appeal of the Class II Special Permit, lodged on the grounds that
the Permit contained unlawful variances and was on the wrong procedural tract.
SAVAG~1 LEGAL
CASE No.
14-492-AP
Faced with this Court's Opinion holding that the Class II Special Permit did
in fact contain an unlawful variance, the City inexplicably ruled the exact same
incorrect way it did previously and denied the appeal. (cf. A:8 with A:9).
This Court has ruled that the Class II Special Permit (which cannot by
definition be processed with a variance) in fact had a variance. Merely removing
the variance after-the-fact does not cure the improper proceedings already held.
The following general analogies are provided for the Court's consideration:
If an appellate court rules that a juvenile criminal defendant should have

been tried as an adult, removal of the charge that required the different
proceedings after-the-fact will not sanitize the prior proceedings.
If an appellate court rules that a case should have been tried in federal court,
removal of the federal claims that required proceedings in federal court
after-the-fact will not cure the prior proceedings.
If an appellate court rules that a jury trial should have been convened,
removal of the claims that required trial by jury after-the-fact will not
validate the proceedings.
Why? Because the legal standards, evidentiary or appellate burdens,
procedures, and procedural posture of the proceedings are different, and there is no
way to know how the proceedings would have turned out had they been handled
properly from the beginning.
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CASE No.
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The City interpreted this Court's mandate incorrectly by looking for an

express requirement to rule a certain way, something this Court could not explicitly
enumerate under the law prohibiting that kind of detailed instruction on certiorari
review. The ruling that the Class II contained a variance (and thus could not travel
as a Class II Special Permit) was, however, quite clear in this Court's Opinion.
The City ignored this part of the Court's ruling, and again the denied the appeal
from the PZAB, leaving the PZAB's determination that the Class II did not have a
variance undisturbed.
The City also confounded the doctrine of law of the case by using it as
reason why it could not grant the appeal, when the exact opposite was true. The
law of this case is that the Class II Special Permit application had an unlawful
variance, thus destroying its status as a Class II Special Permit, and nullifying
those proceedings convened in its name while it was masquerading as a lawful
instrument.
3.
The City Departed from the Essential Requirements of the Law by

Refusing to Follow Its Own Regulations.
A city is bound by the procedural requirements imposed by its own charter
and ordinances. E.g., Gulf & Eastern Development Corporation v. City ofFort
Lauderdale, 354 So. 2d 57, 61 (Fla. 1978).

This Court expressly held that the Commission departed from the essential
requirements of the law when the Commission denied the Petitioners' appeal,
CASE No. 14-492-AP

which appeal was grounded on allowing the Class II Special Permit travel through
the Class II process while containing a variance. (A: 1). This improper action
allowed the administrative approval of a problematic Class II Permit that otherwise
would be subjected to the stricter scrutiny in a public forum that accompanies a
zoning variance application under the MUSP procedures in Article 17 of the Code
and the Variance procedures in Article 19.
This Court agreed with the Petitioners that the Commission exceeded their
authority by approving a Class II Special Permit that allowed a variance from the
provisions of the Zoning Code, which bypassed the PZAB's and Commission's
exclusive jurisdiction over the grant of zoning variances under governing Code
sections.
This Court agreed with the Petitioners' identification of the governing Code
provisions, and quoted Article 13 of Ordinance 11000, stating: "The Director of
the Department of Planning and Zoning shall be solely responsible for review
compliance and consideration of applications for Class II Special Permits."
Opinion at 4 (emphasis in original).
Moreover, the Court agreed with the Petitioners, and quashed the City's
Resolution for allowing a Class II Special Permit process to proceed with an illegal
variance embedded therein. ld. The City Code expressly provides that if an
application features a variance, it must proceed under the MUSP process and
SAVAGt7~ LEGAL
CASE No. 14-492-AP

Article 17 (and not the Class II process under Article 13). (A:2; 627.2.3).
The governing Code provisions of Article 17 provide:
1702.6 Applications involving zoning changes, Special Exceptions,

and/or variances; process.
For applications involving zoning changes, Special Exceptions and/or
variances the Director of the Department of Planning and Zoning shall
submit his/her recommendations first to the Zoning Board and then to
the Planning Advisory Board at properly noticed regularly scheduled
public hearings of the boards. Upon consideration of the application,
the Zoning Board and the Planning Advisory Board may recommend
approval or denial of the application and further concur or disagree
with any or all of the recommendations of the Director of the
Department of Planning and Zoning, and such actions of the board
shall be included as part of the record for transmission to the City
Commission.
Critically, had the correct process been used, the Petitioners would not have
borne the appellate burden of lodging and arguing an appeal in order to challenge
the subject Permit. The proceedings before the PZAB and the City Commission
concerning the PZAB would have occurred as ofright, and without the Petitioners
carrying the burden of establishing error (but rather with the applicants bearing the
burden of advancing their application).
The governing Code provision requires:
1702.8. Application; hearing by City Commission.

Upon transmission to the City Commission of the recommendations
of the Director of the Department of Planning and Zoning, the Zoning
Board and/or the Planning Advisory Board, the hearing boards
division shall set a date or dates for public hearing on the application,
SAVAGt~ LEGAL
CASE No. 14-492-AP

in the manner set out in Section 62-55(1), (2), (3), and (4) of the Code
of the City of Miami, and any amendments. If the approval of the
application involves a change in the adopted Miami Comprehensive
Neighborhood Plan, notice shall also be given in accord with the
applicable provisions of Sections 163.3184 and 163.3187, Florida
Statutes, as amended, and any amendments or revisions. If the
proposed development is one of regional impact under Chapter 380,
Florida Statutes, as amended, notice shall also be given as required by
Section 380.06, Florida Statutes, as amended, and any amendments or
reVISIons.
(A:3 at 6-7) (emphasis added).
Article 17 is substantively and procedurally different from Article 13,
providing for public hearings, public notice, and presentations by the City Staff
that must occur as of right, and with the onus on the City to make sure these
proceedings are noticed; all of which is in stark contrast to the appellate process
that must be initiated by affected persons under the Class II Special Permit process
under Article 13 (with those persons bearing the burden of lodging and prosecuting
the appeal). (A:3; 1702.6 through .8; and see A:6 and A:7, the written appeals
submitted by Petitioners).
Thus the distinction between the two procedural tracts is substantive and
procedural. They cannot be interchanged or combined in a hybrid manner.
The governing Code in this case imposes a jurisdictional switch in the
procedural track: if there is a variance in an application, then the applicant must
submit an application for a MUSP and proceed under the MUSP procedures. If
there is no variance, then the applicant must submit an application for a Class II
CASE No. 14-492-AP
Special Permit (with no variance unlawfully buried therein). Never the twain shall
meet. Indeed the Code makes clear that "a variance is not a special permit."
1901 of the Zoning Ordinance. See Attachment C.
As stated above, the authority to issue a Class II Special Permit lies
exclusively with the Director, according to the Class II Special Permit process.
Opinion at 4. This Court even recognized and recited the exclusive nature of the
jurisdiction of the Director over Class II Special Permit compliance review. Id.
On the other hand, the authority to issue a MUSP lies with the PZAB and the
Commission, after recommendations and submissions by the Director.
(A:3;
1702.5 through .8).

This Court recognized and collected the citations for the axiomatic rule that
failure of the City to follow its own regulations "constitutes a departure from the
essential requirements of the law." Opinion at 6.
Because the original application featured an unlawful variance buried in the
Class II Special Permit, as this Court expressly held, then it follows that:
The Zoning Director had no jurisdiction to review the application and
act on it as he did (as a proper Class II Special Permit application).
The Director was without jurisdiction to make referrals to the
Neighborhood Enhancement Team (NET) Offices as he did.
The Director was without jurisdiction to refer and convene
SAVAGi~~ LEGAL
CASE No.
14-492-AP
proceedings of the UDRB.

The Petitioners were unlawfully forced to challenge the wrong Permit
in the wrong process, since, had the application been correctly
traveling under Article 13, then the City would have had to convene a
hearing before the PZAB and the Commission, with appropriate
notice and submissions. The Petitioners would not have been
required to prosecute their appeal under the Class II Special Permit
regIme.
Upon appeal to the City Commission on the grounds that a variance
infected the Class II Permit proceedings, the City Commission would
be required to grant the appeal, and not do what it did here, uphold the
permit as somehow proper.
The foregoing infected and incorrect proceedings cannot be cured by
slipping in a mark and notation to the plans and the very end of a long and flawed
Class II Special Permit process. If the original application did include a variance,
as this Court has expressly held, then the Petitioners and indeed all of the citizenry
were entitled to the hearings, notice and proceedings required by Article 13 and the
MUSP process. If an original application is to be submitted without a variance,
then the Petitioners and indeed all of the citizenry are entitled to the hearings,
notice and proceedings required by the Class II Special Permit process, without the
CASE No. 14-492-AP

presence of an illegal variance (as was present in the proceedings below).
This Court has over the years noted and collected several case authorities
reiterating that enactments are invalid without strict compliance with procedural
code provisions:
The Court takes note of a number of cases which support the principle
that an ordinance which fails to comply with mandatory procedural
requirements is invalid. Gulf and Eastern Development Corporation v.
City of Ft. Lauderdale, 354 So.2d 57 (Fla. 1978) (rezoning ordinance
invalid where city failed to comply with procedural requirements
imposed in its charter and ordinances); O'Connor v. Dade County, 410
So.2d 605 (Fla. 3d DCA 1982) (rezoning vacated and set aside where
county failed to seek recommendation of its developmental impact
committee as mandatorily required by ordinance): Save Brickell
Avenue, Inc. v. City of Miami, 396 So.2d 146 (Fla. 3d DCA 1981)
(affected citizen has standing to attack zoning resolution on ground
that it is void or invalid by reason of departure from any essential
procedure preceding its enactment).
Hialeah Citizens Alliance v. City of Hialeah, 2 Fla. L. Weekly Supp. 44a (Fla. 11 th
Jud. Cir. Dec. 10, 1993).
The Planning and Zoning Director's testimony at the Commission hearing
was quite telling. He assured the Commission and the public that had he been
applying the correct interpretation of the Code concerning the loading berths (as
determined by this Court)from the beginning of the application process, the project
would have been "exactly the project that you are affirming today." Attachment B
at 83. As notable as the Director is, neither he, nor any mortal human, can possibly
say what the project would have looked like if the application would have been
CASE No. 14-492-AP

handled correctly and traveling under the MUSPNariance process. There is no
way to tell now what the public input, modifications, determinations, rulings or
outcomes would have been had those different public hearings conducted under
different procedural burdens and standards been held.
The City simply must process the application in this case as is contemplated
and required by its own Code. E.g., Town of Longboat Key v. Island Property
Owners Coalition, 95 So. 3d 1037, 1042-43 (Fla. 2d DCA 2012) ("As the wording
of its laws binds a legislature, the Town is bound by the wording of its Code.").
Otherwise, the approval memorialized in the Commission's Resolution is void.
E.g., Gulf & Eastern Development Corporation v. City ofFort Lauderdale, 354 So.
2d 57, 61 (Fla. 1978) (a city is bound by the procedural requirements imposed by
its own charter and ordinances); O'Conner v. Dade County, 410 So. 2d 605, 606
(Fla. 3d DCA 1982) (county commission required to obtain recommendation of
development impact committee per code),' Webb v. Town Council of Hilliard, 766
So. 2d 1241, 1244 (Fla. 1st DCA 2000) ("Attempts of local government to grant
zoning changes without compliance with procedural requirements have been
deemed invalid and void."); 0 'Conner, 410 So. 2d at 606; City of Miami Beach v.
Consolo, 279 So. 2d 76,79 (Fla. 3d DCA 1973); Florida Tallow Corp. v. Bryan,
237 So. 2d 308, 310 (Fla. 4th DCA 1970).
SAVAGi~~ LEGAL
CASE No. I4-492-AP

The Court is again respectfully urged to require the City to follow its own
procedures in connection with this permit application, under the unbroken line of
decisional law requiring this. See Opinion at 6-7 (stating: "It is well established
that "[fJaiIure of an agency to adhere to its own regulations constitutes a departure
from the essential requirements of the law." Dougherty v. City of Miami, 13 Fla.
L. Weekly Supp. 959a (Fla. 11 th Cir. Ct. July 14, 2006), cert. denied, 944 So. 2d
370 (Fla. 3d DCA 2006) (emphasis added); citing to Rosa Hotel Developers, Inc. v.
th
City of Delray Beach, 10 Fla. L. Weekly Supp. 600b (Fla. 15 Cir. Ct. 2003).").
SAV AG~~ LEGAL
CASE No. 14-492-AP
CONCLUSION
Based upon the foregoing reasons and legal authority, ce rtiorari is both
necessa ry and justified to quash the City ' s denial of the appea l of the C lass II
Special Permit. The approva l of th e C lass II Special Permit by the City
Commission is contrary to th e governing Code in Section 627, Appendix C, Miami
21 Zoning Code as well as applicabl e pro visions of Zo nin g Ord inance 11000. This
un wa rranted an d e rron eo us approval ran afo ul o f thi s Court ' s Op inion which
emphasized the ex press procedural process required by C ity Code, as well as
constituted a cl ear departure from the esse ntial requirements of law.
Respectfully submi tted,

Florida Ba r No. 088587
T he Law O ffices oF Paul C. Savage, P.A.
100 Almeri a Aven ue
Suite 220
Cora l Ga bles, Florida 33134
Telephone: (305) 444-7188
Facsimile: (305) 444-7 188
Counsel fo r Petitioners
~5
SA VAGI? .,. LEGAL
CASE No . 14-492-AP
certitY that a copy of thi s Amended Petition for Writ of Certiorari was
served by e mai l on January 30, 2015 to the offices of: Victoria Mendez, Esq. , the
City
Attorney,
44
S. W . 2 nd
Avenue,
Suite
945 ,
Miami,
Florida 33 J30
(Iaw@ miamigov .com; jagreco@ miamigov.com) and Richard J. Lydecker, Esq.,

1221 Brickel l Avenue, Floor 19, Miami , Florida 33131 (rl@ lydeckerdiaz .com).
I hereby certify that thi s petition was prepared in Times New Roman , 14point font , in compliance w ith Rule 9 .1 00(1) of the Florida Rules of Appellate
Procedure .
~6
SA VAGE .,. LEGAL
APPENDIX
I
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA
Appellate Division Case No. 14-492 AP
______________________________________________________
On Petition for a Writ of Certiorari from a Resolution of the City of
Miami Commission
(File No. 13-01030iia)
______________________________________________________
JACOB PFEFFER, et al.,
Petitioners,
v.
CITY OF MIAMI, FLORIDA and WAL-MART STORES EAST, LP,
Respondents.
WAL-MART STORES EAST, LPS

RESPONSE TO AMENDED PETITION FOR A WRIT OF CERTIORARI
Joan Carlos Wizel

Mark A. Emanuele
Richard Lydecker
Manuel A. Diaz
LYDECKERDIAZ
(305) 416-3180
Counsel for Respondent
Wal-Mart Stores East, LP
FEBRUARY 9, 2015
Respondent, Wal-Mart Stores East, LP (Wal-Mart), responds to the

Amended 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
This case comes before this Court after this Court already approved WalMarts Class II Permit (the Permit) with respect to every appellate issue
previously raised by Petitioner, save only the one (1) very narrow and limited issue
regarding the legal interpretation of the City of Miamis Zoning Code 11000 (the
Code) requirement of three (3) interior loading berths. On remand from the first
appeal, the Permit was simply reduced to three (3) interior loading berths pursuant
to this Courts remand Order; everything else previously upheld on appeal by this
Court remains exactly the same, and not so much as one light switch or wall was
altered in the Permit plans. The law of the case has been established by this Court,
and has been followed on remand by Wal-Mart, the City, and the Commission,
and, frankly stated, there is nothing to decide that has not already been decided.
The first appeal resulted in the opinion issued on October 15, 2004, in
Pfeffer v. City of Miami, et al., case number 14-004 AP (Pfeffer 1), in which this
Court found that Section 627.2.15 of the Code required an absolute number of
three (3) loading berths, and the Citys long-standing interpretation of this section
as establishing a minimum requirement but allowing it to call for a higher number
of berths for any given project was incorrect. On remand, Wal-Mart conformed its
project to meet this Courts holding on Section 627.2.15s requirement by reducing
the off street loading berths from five (5) to three (3). The City of Miami
Commission (the Commission) on remand from this Court then considered
Petitioners appeal in accordance with this Courts opinion. Based upon its de novo
review of the project and with the recommendation of the Planning Director, the
Commission (on a unanimous vote) issued Resolution number 13-01030iia on
November 20, 2014, affirming the decision of the Planning, Zoning and Appeals
Board (the PZAB) to deny the appeal of the Permit and approving the Permit
with only three (3) loading berths.
Having obtained what they asked for in the first appeal (that the project
contain only three (3) loading berths), this second appeal can only be presumed to
be a tactic to delay the construction allowed by the Permit, based on Petitioners
ideological objections to Wal-Martwhich have no place in consideration of the
issues. The argument advanced by Petitionersthat the Commission had no
jurisdiction to entertain the application on remand because before Pfeffer 1 the
project contained five loading berths, and that the Commission was required to
force Wal-Mart to either re-submit an application for a Class II Special Permit

anew and start the (now over two-year long) process all over again or submit an
application for a Major Use Special Permit (MUSP) requesting a variance for the
five loading berths that Wal-Mart does not want or seekhas no legal support
whatsoever (either in the Code or case law); in fact, it is patently contrary to the
Code, the law of the case established in Pfeffer 1, and historical practice evidenced
in Florida case law.
The Petition should be denied.
STATEMENT OF THE ISSUE PRESENTED
Whether the Commission departed from the essential requirements of the
law by approving the Permit for the Project, which, as conformed to meet the
loading berth requirement announced in Pfeffer 1, was in full compliance with the
Code.
STATEMENT OF THE CASE AND FACTS1
This Court is well familiar with the lengthy factual and procedural history of
this case, as it has been previously and fully addressed in Wal-Marts Response to
the Petition filed in case number 14-004 AP and in this Courts opinion in Pfeffer
References to the Appendix to this Response will be made using R.

App. __ at __ denoting the Tab and page number.
3
1. Rather than restating it in this brief, we will simply summarize it, referring the
Court to Pfeffer 1 and Wal-Marts prior brief.2
Over two years ago, on August 21, 2012, Wal-Mart submitted its
application to the Department of Planning and Zoning for a Class II Special Permit
to allow construction of a Wal-Mart store (the Project) in the property located at
3055 North Miami Avenue. See Pfeffer 1, App. A at 2; App. B at 3-5. This location
is zoned for a big box retail facility as Midtown Miami West under the City of
Miami Zoning Code. See id. 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
Transportationthe Planning Director conditionally approved the Permit in his
final decision. Pfeffer 1, App. A at 1-2; App. B at 5-7.
Petitioners then appealed the Directors decision to the PZAB on August 27,
2013. After a public hearing was held before the PZAB on October 2, 2013, the
PZAB denied the appeal of the Class II Special Permit. Pfeffer 1, App. A at 2;
App. B at 7-9. Petitioners then appealed the PZABs decision to the Commission
on October 17, 2013. App. B at 9. After holding a de novo, quasi-judicial public
For the Courts convenience, this Courts opinion in Pfeffer 1 is included as

Appendix A and Wal-Marts brief filed in case number 14-004 AP is included as
Appendix B to this Response.
4
hearing on November 21, 2013, the Commission unanimously denied the appeal
and approved the Permit. Id. Pfeffer 1, App. A at 3; App. B at 9-14.
On January 2, 2014, Petitioners then filed a Petition for Writ of Certiorari in
this Court, challenging the Resolution of the Commission. After full briefing, oral
argument, and supplemental briefing, this Court rejected six (6) of the seven
arguments Petitioners presented in challenging the Permit.3 The 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
3
Specifically, this 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 final
decision was affected and limited by those reports (Pfeffer 1, App. A 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 satisfy
Section 1305 as a matter of law (Pfeffer 1, App. A at 6-7);
(3)
since the Commission made its own findings and determination, Petitioners
challenge to the Directors findings was moot (Pfeffer 1, App. A 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 on
the experts interpretation that continuous in design refers to architectural
elements, not style (Pfeffer 1, App. A at 8-9);
(5)

decision that the Project met the requirements for active pedestrian usage
frontage (Pfeffer 1, App. A at 8-9); and
(6)

decision that the Project met the requirements for liner uses and setbacks
based on the expert testimony finding that parking spaces were setback 85
feet (Pfeffer 1, App. A at 8-9).
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, App. A at
8-10. The 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) loading berths. Id. Thus, the Court quashed
the Commissions Resolution and remanded the case to the Commission for further
proceedings consistent with that ruling. Pfeffer 1, App. A at 10; see also App. C
(Mandate issued on October 31, 2014) at 1.
Heeding to this Courts decision, in anticipation of appearing before the
Commission on remand from this Court, Wal-Mart and the Citys Department of
Planning and Zoning agreed to conform the plans for the Project to provide only
for three (3) (instead of five (5)) loading berths. A de novo, quasi-judicial public
hearing was then held on remand before the Commission on November 20, 2014.
At the hearing, the Planning 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 II
Special Permit, which my department issued and which I
signed.
So I understand my choices to be very limited today as
your Planning and Zoning Director. And my choices are
basically only to bring back to you a project that has a
total of three loading berths, because the Court decided
that total is to be interpreted as meaning no more than, no
less than three loading berths. And this is, in fact, what
the applicants, the original applicants, have done.
They have presented to us, and you will find in your
packets, documents that show that where there were once
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 that
the document show are functional, which is why you will
see in some of the drawings there are maneuvering
diagrams.
So there are three functional loading berths presently in
this particular establishment. By doing so, we believe
that we have complied with the courts order. And we
submit to you then that the revised set of documents, and
the analysis and findings that are attached to those
documents are worthy of your approval and corrective of
the defect found by the courts.
App. D (Tr. of Nov. 20, 2014 Commission Hearing) at 7:128:21. He assured:
The modifications made to the plans render the three
remaining 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 be
the -- we understand to be the courts mandate, to
interpret the code to mean that, at most, and at least three
loading berths shall be provided. So we are here to verify
that three loading berths, fully compliant with the
appropriate sizes and dimensions provided by the zoning
ordinance, have indeed been provided. Plans attached to
show that is the case.
App. D at 28:117. The Planning Director concluded,
I think it is important, and perhaps appropriate, to
hopefully clarify something that may be confusing. And
it is this.
I, as your Planning and Zoning Director, stand corrected

by the court. I want to assure this Commission that the
mistake made by your Planning and Zoning Department
is not to have overlooked a variance. That is a rather
significant issue. And Im here to tell you that has never
happened 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 OffStreet 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 certainly
exceed it. It turns out, as the court says, that the plain
meaning of the word total makes it so that it cannot be
interpreted reasonably as being more than three. We
stand corrected. Were humbled by it.
Im here to tell you, though, and this is the important
thing, that had this been correctly interpreted to mean
that only three loading berths were required, you would
have had before you, one year ago, exactly the project
that you are affirming today.
App. D at 82:1583:25.
As in their Petition, despite their caricatured representation of the revisions
made to the planswhich were adequately addressed by the Director at the
hearing on remand (see App. D at 58:2259:24)Petitioners did not present any
argument to challenge the plans conformed to provide for only three (3) loading
berths. The only issue Petitioners raised at the hearing was the authority of the
Commission to approve the Permit based on the Project that was conformed to
provide the three (3) loading berths they themselves had previously requested.
Petitioners claimed (similar to their argument in this Court) that, even though the
Project now conformed to the three loading berths requirement in alignment with
Pfeffer 1, because (based on the Citys interpretation of the Code) the original
application provided for five loading berths, the Commission was now required to
force Wal-Mart to either re-submit an application for a Class II Special Permit and
restart the entire process anew or submit an application for a MUSP requesting a
variance for the two additional loading berths that Wal-Mart does not want. The
Commission thoroughly rejected Petitioners position, and, expressly relying on
this Courts opinion in Pfeffer 1, voted unanimously to affirm the decision of the
PZAB to deny the appeal and to approve the Permit with only three berths.
This second Petition was then filed on December 16, 2014.
STANDARD OF REVIEW
The Courts review of local agency action is deliberately circumscribed out
of deference to the [local] agencys technical mastery of its field of expertise,
Broward County v. G.B.V. Intl Ltd., 787 So. 2d 838, 843 (Fla. 2001). In
reviewing the decision of quasi-judicial action of an administrative body, the
circuit court must determine whether the decision is supported by competent
substantial evidence, whether the essential requirements of the law have been
observed, and whether due process has been accorded. Pfeffer 1, App. A at 3-4
(citing City of Deerfield Beach v. Valiant, 419 So. 2d 624, 626 (Fla. 1982); Florida
Power & Light Co. v. City of Dania Beach, 761 So. 2d 1089, 1092 (Fla. 2000); and
Broward Cnty. v. G.B. V. Intl, Ltd, 787 So. 2d 838, 843 (Fla. 2001)). Petitioners
only argument, however, is that the Commission departed from the essential
requirements of the law by considering modifications to the Project that
extinguished the only impediment to issuance of a Class II Special Permit pursuant
to Pfeffer 1.
The required departure from the essential requirements of law means
something far beyond legal error. Jones v. State, 477 So. 2d 566, 569 (Fla. 1985)
(emphasis added). To find that the Commission did not adhere to the essential
requirements of law, the 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. Id. (emphasis added); 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 essential requirements of law when it amounts to a violation
of a clearly established principle of law resulting in a miscarriage of justice
(citing Tedder v. Florida Parole Commn, 842 So. 2d 1022, 1024 (Fla. 1st DCA
2003) (quoting Combs v. State, 436 So. 2d 93, 96 (Fla. 1983)); see also Haines
City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) (same).
10
ARGUMENT
The Petitioners argument is based on one fatal flaw: the assumption that an
application for a Class II Special Permit must at its inception be fully compliant
with all requirements of the Code, and once the Director approves the Class II
Special Permit, the application cannot be modified to conform to Code
requirements. Petitioners claim that if any aspect of the application does not
conform to the Code requirements, it constitutes a variance and the application
must be denied, at which time the applicant must be required to either submit an
application for a Major Use Special Permit or re-submit the Class II Special Permit
application anew. This conceptualization of such a patently incompetent process
for approval of a Class II Special Permit is simply wrong. Specifically, the Petition
lacks merit and should be denied because, as more fully explained below, it has
been decisively established by both the law of the case and by precedent of the
Third District Court of Appeal that, in issuing its decision to ultimately approve the
Class II Special Permit, the Commission was well within its authority to conduct a
de novo review and to hear new evidence on remand.
I.
Section 1305 and its application to the Commissions

review pursuant to the law of the case established in
Pfeffer 1 definitively bars Petitioners challenge to the
Commissions authority in its review on remand.
Section 1305 of the Code wholly undercuts Petitioners argument. That

provision states:
11
The City agent, board, or commission that is

charged with decisions concerning each of the special
permits shall review the proposal before them and shall
make, or cause to be made, written findings and
determinations in accordance with the established
applicable criteria set forth in this zoning ordinance and
the City Code. Such findings shall be used to approve,
approve with conditions, or deny the pending
application.
Approvals shall be issued when such application
complies with all applicable criteria.
Conditional approvals, shall be issued when such
applications require conditions in order to be found in
compliance with all applicable criteria.
Denials of applications shall be issued if after
conditions and safeguards have been considered, the
application still fails to comply with all applicable
criteria.
(Emphasis added.) See also Section 2004 of the Code (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.) (emphasis added).
The highlighted text patently invalidates Petitioners position in this appeal,
which, in contrast to Section 1305, posits that,
The governing Code . . . imposes a jurisdictional switch
in the procedural track: if there is a variance in an
application, then the applicant must submit an application
for a MUSP and proceed under the MUSP procedures. If
there is no variance, then the applicant must submit an
application for a Class II Special Permit (with no
12
variance unlawfully buried therein). Never the twain

shall meet.
Petition at 15-16. That argument is plainly wrong, because the plain language of
Section 1305 allows the Commission to review applications that in some aspect did
not originally comply with Code requirements and require modifications or
conditions to comply with such Code requirements and approve the Class II
Special Permit application with those modificationsprecisely what the
Commission did in this case on remand.
Moreover, Petitioners cannot challenge Section 1305s application to the
Commissions review of the PZAB determination, because the law of the case
established in Pfeffer 1 bars any such challenge. 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 the case in the same court and the trial
court, through all subsequent stages of the proceeding. Dougherty ex rel. Eisenberg
v. City of Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009) (collecting cases). See
also Dougherty ex rel. Eisenberg v. City of Miami, 89 So. 3d 963, 966 (Fla. 3d
DCA 2012) (same) (quoting State, Dept of Revenue v. Bridger, 935 So. 2d 536,
538 (Fla. 3d DCA 2006)); Engle v. Liggett Grp., 945 So. 2d 1246, 1266 (Fla. 2006)
(same) (citing Fla. Dept of Transp. v. Juliano, 801 So. 2d 101, 105-06 (Fla.
2001)). The purpose of the doctrine is to lend stability to judicial decisions and
the jurisprudence of the state, as well as to avoid piecemeal appeals and to bring
13
litigation to an end as expeditiously as possible. Strazzula v. Hendrick, 177 So. 2d

1, 3 (Fla. 1965); see also Bridger, 935 So. 2d at 538-39 ([P]oints of law
adjudicated in a prior appeal are binding in order to promote stability of judicial
decisions and to avoid piecemeal litigation.) (quoting Bueno v. Bueno d Khawly,
677 So. 2d 3, 4 (Fla. 3d DCA 1996)). Moreover, the doctrine of law of the case
applies to rulings of the circuit court sitting in its appellate capacity on review from
a resolution of the city commission. Dougherty ex rel. Eisenberg, 23 So. 3d at 15758 (holding that the decision made by the circuit court in a first appeal on the
issues which were necessarily presented and decided in a first-tier certiorari
petition were the law of the case, and therefore, both the commission and the
circuit court were obligated to follow those rulings in subsequent proceedings on
remand and in a second appeal). Thus, the rulings of this Court in Pfeffer 1 became
the law of the case for proceedings on remand before the Commission and for this
appeal.
In Pfeffer 1, this Court ruled, among other things, that: (1) Section 1305
applies to the facts in this case, such that its provisions are applicable to the
Commissions appellate review (Pfeffer 1, App. A at 6), and (2) the Commission is
required to conduct a de novo review on appeal, and since the Commissions
review is de novo and it makes its own findings and determination, any error by the
Director would be irrelevant and moot (Pfeffer 1, App. A at 5, n.2, n.3). Both of
14
these issues, dispositive of this petition, were necessarily presented and decided in
Pfeffer 1.4 These rulings became the law of this case. Petitioners are therefore
barred from revisiting these issues. Any argument that Section 1305 did not apply
to the Commissions review below fails as a matter of law. So too, any argument
that the Commission could not conduct a de novo hearing in which it could
consider the plans that were revised to conform to this Courts ruling in Pfeffer 1
4
On the first issue, Wal-Mart contended that procedures governing the

decision made by the Commission in its appellate capacity are governed by Miami
21, not Section 1305 of the Code. Thus, it argued that the Commission was not
required to issue the written findings required by Section 1305.4 Pfeffer 1, App. A
at 5-6; App. B at 26-28. In response, Petitioners argued that Miami 21 changed
from the legacy boards of the Zoning Board or Planning Advisory Board to the
PZAB . . . [but] does nothing to change the requirement for findings by the
Director under section 1305 or the City Commission in connection with Class II
Special Permits. Petitioners Reply Brief filed in case number 14-004 AP at 8.
Indeed, they asked that the Court follow: the text of the Code; the text of the
Permit [that said it was issued in accordance with Section 1305]; the text of the
Resolution [stating it was issued in accordance with Section 1305]; the Petitioners
brief; the decision in Dougherty; the City in its brief; and reject the argument in
Wal-Marts brief. Id. Ultimately, this Court held that Section 1305 is applicable to
the facts of this case and govern the Commissions appellate review. Pfeffer 1,
App. A at 6.
On the second issue, in Pfeffer 1, Petitioners raised a challenge to the
sufficiency of the Directors written findings in approving the Permit. See Pfeffer
1, App. A at 5, n.3. Both Wal-Mart and the City argued that the challenge to the
Directors findings was futile or harmless because the issues were considered de
novo by the PZAB and the Commission, and the Court could also evaluate the
evidence to determine its sufficiency. App. B at 31-32; City of Miamis Brief filed
in case number 14-004 AP at 20-23. Ultimately, this Court held that the
Commission is required to conduct de novo review of the proceedings below, and
since the Commissions review is de novo and it makes its own findings and
determination, any error by the Director would be irrelevant and the issue was
moot. Pfeffer 1, App. A at 5, n.2, n.3).
15
by providing only for three loading berths and make its own determination fails as
a matter of law. Without those arguments, the petition in this case is stripped of
any substance and rendered baseless.
The Commission adhered to the essential requirements of the law in its
review of the issues on remand pursuant to this Courts decision in Pfeffer 1. The
Petition should therefore be denied.
II.
Petitioners argument is further exposed meritless by

historical application of remand proceedings in Florida.
Petitioners position implies, without citation to any authority, that the case
was not properly before the Commission on remand. In stark contrast to
Petitioners claim, Florida case law illustrates that decisions from this Court
quashing resolutions of the Commission are to be remanded to the Commission for
it to consider and address the matters resolved by this Courts (or the Third District
Courts) opinion in the 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).
In Hernandez-Canton, the Commission enacted a zoning resolution granting
approval for a development proposed by a developer/applicant. 971 So. 2d at 831.
The objectors of the project sought certiorari review in this Court, which denied
certiorari. Id. On second-tier review, the Third District concluded that the
16
Commission and the circuit court had applied the incorrect law and quashed the
ruling of the appellate division of the circuit court required that [t]he matter [ ] be
remanded by the Circuit Court to the Commission for further proceedings
consistent with this courts opinion. Id. (emphasis added). Id.
On remand, as required, the Commission held a hearing in which there was a
disagreement about how to interpret the Third Districts opinion, and in the end it
enacted a new zoning resolution accepting the view of the opinion suggested by the
City Attorney. Id. The objectors sought certiorari review in this Court, which was
denied. Id. They then sought second-tier certiorari review in the Third District,
which ruled that its prior opinion had been misinterpreted in the proceedings on
remand. Id. The Third District therefore granted certiorari and quashed; it vacated
the prior two zoning resolutions of the Commission, and instructed:
We remand this matter to the circuit court
appellate division, with directions to remand the matter
to the City Commission for a new hearing and
determination by the City Commission whether the
proposed project does, or does not, comply with Section
1305 as amended in 2004.
At the new hearing, the developer has the burden
of demonstrating compliance with the new version of
Section 1305. The City Commission must reopen the
record and afford the developer and the objectors an
opportunity to present new evidence if they so choose.
Alternatively, the developer and the objectors are free to
rely on the existing record if they so choose.
17
Id. at 831-32 (emphases added). See also Dougherty, 89 So. 3d at 964-66

(evidencing the remand to the Commission on three separate occasions following
certiorari review of the same special permit application); and Jesus Fellowship,
Inc., 752 So. 2d at 711 (quashing the circuit courts order and remanding the case
with instructions to the circuit court to direct the Commission to address the
issues ruled upon by the court).
Like in Hernandez-Canton, the first Resolution of the Commission was
quashed in Pfeffer 1 and this Court required that the matter be remanded to the
Commission for further proceedings consistent with this Courts opinion. As
required in Hernandez-Canton, on remand, the Commission properly conducted a
de novo hearing to make a determination of whether the proposed project does, or
does not, comply with the three (3) loading berth requirement of Section 627.2.15
consistent with Pfeffer 1. At that hearing, as the Third District explained, the
Commission was required toand did in factreopen the record and afford[ed]
[Wal-Mart] and the objectors an opportunity to present new evidence . . . .
Hernandez-Canton, 971 So. 2d at 832. Upon reviewing the new evidence, i.e., the
plans of the Project conformed to provide for only three (3) loading berths
consistent with Pfeffer 1, the Commission followed the law and approved the
Permit.
18
The issue of the proper scope of the Commissions review on remand from a
decision of this Court after certiorari review was also extensively addressed by
Judge Wells in her special concurrence in Dougherty v. City of Miami, 23 So. 3d
156 (Fla. 3d DCA 2009). Judge Wells agreed with the majority that the
Commission (on remand) and the circuit court (in a second appeal) were bound by
the doctrine of the law of the case to follow the incorrect ruling first issued by the
circuit in a prior appeal in that case in which the circuit court had found that the
Commission had improperly exceeded its appellate jurisdiction by considering new
evidence at a de novo hearing and finding that it was instead required to conduct a
review limited to . . . the record received from the Zoning Board. Dougherty v.
City of Miami, 23 So. 3d 156, 157-58 (Fla. 3d DCA 2009). In her special
concurrence, however, she explained why that first rulingwhich advanced the
very same erroneous argument that Petitioners would like this Court to accept
incorrectly stated the law. Id. at 160-63.
As the concurrence explained, nothing in the Code constricted the
Commissions review of the Zoning Appeals Boards decision. Id. at 161.
Moreover, it noted,
It is, of course, well accepted that local government
decisions regarding building permits are quasi-judicial in
nature and are subject to de novo review. See Broward
County v. G.B.V. Intl, Ltd., 787 So. 2d 838, 842 n. 4
(Fla. 2001) (confirming that local government decisions
on building permits, site plans, and other development
19
orders are quasi-judicial in nature). Such proceedings, as

we have stated, are those at which at least the parties
must be allowed to present evidence and cross-examine
witnesses. See Jennings v. Dade County, 589 So. 2d
1337, 1340 (Fla. 3d DCA 1991).
Id. Thus, the concurrence explained that there was no basis for determining that the
Commission was limited on remand to conducting an appellate review similar to
that conducted by the courts and as contemplated by the rules of appellate
procedure when reviewing administrative actions from other agencies like the
Zoning Appeals Board, and that the Commission was well within its authority to
conduct a de novo review and to hear new evidence in making its own
determination. Id. at 163-64.
Like in Dougherty, nothing in the Code or Miami 21 limits the manner in
which the Commission may review decisions of the PZAB (either in the course of
an appeal on first instance or on remand from certiorari review). Quite the
opposite, as this Court found in Pfeffer 1, under the Code and Miami 21, the
Commission conducts a de novo review and makes its own determination on the
application for a permit. Pfeffer 1, App. A at 5, n.2. See also MIAMI 21, Art. 7,
7.1.2.4(e) (The ruling of the Planning, Zoning and Appeals Board may be further
appealed to the City Commission, de novo . . . .); Section 1305 (requiring the
Commission to make its own determination); Section 2004 (mandating that upon
any appeal, [t]he city commission shall conduct a hearing de novo as a body of
20
original jurisdiction, at which [n]ew evidence or materials may be received . . .

[and] may hear the testimony of witnesses and/or any other evidence offered, and
affirming that the commission has the full power to affirm, reverse, modify, in
whole or in part, with or without conditions.). Thus, as in Dougherty, the
Commission was well within its authority to conduct a de novo review, to hear new
evidence in making its determination, including plans conformed to provide only
three (3) loading berths consistent with Pfeffer 1, and approve the application that
complied with all requirements of the Code.
Unable to provide any case law in support of their position that Wal-Mart
was required to re-submit a permit application and start the process anew (and
despite this Courts Opinion in Pfeffer 1 approving the process and the Permit in
all but one limited respect), Petitioners attempt to persuade this Court with three
(3) inadequate analogiesnone supported with citations to any authoritytwo of
which are simply irrational, and the last one unsubstantiated and unsound.
Petitioners first analogy offers an imaginary world where an appellate court
ruled that a juvenile criminal defendant should have been tried as an adult, and
suggests that in such a case the removal of the charge that required the juvenile to
be tried as an adult would not sanitize the prior proceeding. Petition at 25. The
analogy is illusory, as it is based on an unconstitutional proposition; the scenario
posed would be precluded by the Double Jeopardy Clause of the Fifth Amendment.
21
See Breed v. Jones, 421 U.S. 519, 531 (1975) (holding that the juvenile criminal
defendant was put in jeopardy at the juvenile court adjudicatory hearing, and
therefore, his subsequent prosecution as an adult violated the Double Jeopardy
Clause of the Fifth Amendment, as applied to the States through the Fourteenth
Amendment).5
The second analogy is just as bad. Here, Petitioners pose an irrational
scenario where an appellate court rules that a case should have been tried in
federal court, and suggest that in such a case the removal of the federal claims
that required proceedings in federal court after-the-fact will not cure the prior
proceedings. Petition at 25. It is nearly impossible to conceive of such a case
because (a) removal to federal court is automatic upon filing of a notice of removal
pursuant to 28 U.S.C. 1446 within the strict time constraints of the statute, (b) a
motion to remand is governed by 28 U.S.C. 1447(c) and is generally due within
Moreover, Petitioners analogy would be similarly misguided if it proposed the

more realistic inverse scenario, where an appellate court ruled that there was a
procedural defect in the adjudication requiring a juvenile criminal defendant to be
tried as an adult. Even in that scenario, the defect may be curable on remand, and
in any event, there is no support for the proposition that the entire proceedings
would have to start anew. See Kazakoff v. State, 642 So. 2d 596 (Fla. 2d DCA
1994) (holding that even though the trial court erred in failing to comply with
statutory requirements governing the procedure to impose adult sanctions on a
juvenile, the error did not render all proceedings null and void; the evidence was
sufficient for the court to make findings as to omitted factors as well as to support
transfer of juvenile for adult prosecution, and the juveniles conviction in adult
court could be upheld upon entry of the corrected order). Cf. State v. Griffith, 675
So. 2d 911 (Fla. 1996); State v. King, 462 So. 2d 12, 14 (Fla. 1982).
22
30 days after the filing of the notice of removal (and in any event, before entry of
final judgment), and (c) courts of appeal generally lack jurisdiction to review a
district courts order granting a motion for remand, and even in the narrow
circumstances in which such orders are reviewable on appeal, the appeal is from
the district courts remand order (i.e., an appeal must be filed within 30 days of
rendition of such an order). All this makes it virtually impossible for preservation
of an objection to a remand order raised in a plenary appeal following a trial in
state court, thus rendering the analogy unworkable. Even if that situation existed,
it would not mean a new complaint would have to be filed and the proceeding
would have to start anew in federal court. Cf. Salery v. U.S., 373 Fed. Appx. 29, 30
n. 1 (11th Cir. 2010) (quoting Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248,
1252 (11th Cir. 1988) (As a general rule, when a case is removed to federal
district court under original jurisdiction, the federal court treats everything done in
the state court as if it had in fact been done in the federal court. Therefore,
assuming an error occurred in the state court, a federal district court may dissolve
or modify injunctions, orders, and all other proceedings which have taken place in
state court prior to removal.) (citations and quotations omitted). See also Savell v.
Southern Ry. Co., 93 F.2d 377 (5th Cir. 1937); Parry v. Bache, 125 F.2d 493 (5th
Cir. 1942).6
Moreover, reconstructing the hypothetical to present a more realistic analogy is of

23
Petitioners third and final analogy is also unsound. They propose that [i]f
an appellate court rules that a jury trial should have been convened, removal of the
claims that required trial by jury after-the-fact will not validate the proceedings.
Petition at 25. However, a decision, judgment, or conviction will not always be
invalidated, and thus all prior proceedings will stand, if there is a determination
that an issue should have been submitted to a jury trial. See Washington v.
Recuenco, 548 U.S. 212, 222 (2006) (Sixth Amendment Blakely error from failure
to submit a sentencing factor to jury, like failure to submit an element to jury, is
no help to Petitioners. In a case removed to federal court in which the district court
denies a motion to remand and the case proceeds to trial in federal court, a finding
by the appellate court that the order denying remand was erroneous does not
necessarily void the proceedings. Even when an objection to an improper removal
is preserved, once a case has been tried, considerations of finality, efficiency, and
economy become overwhelming. Caterpillar Inc., 519 U.S. at 75 (reasoning that
remanding to state court after years of litigation would impose unnecessary and
wasteful burdens on the parties, judges, and other litigants waiting for judicial
attention); see also In re Carter, 618 F.2d 1093, 1099 (5th Cir. 1980) (An order
of remand after entry of final judgment no longer fosters prompt resolution of the
merits of the case, but serves instead only to delay final resolution by subjecting
the litigants to a second, and the state court to a possibly duplicative, trial of the
same matter.). Cf. NewmanGreen, Inc. v. AlfonzoLarrain, 490 U.S. 826 (1989);
Knop v. McMahan, 872 F.2d 1132, 1139 n. 16 (3rd Cir. 1989). Thus, in fact, quite
contrary to Petitioners suggestion, removal of the defectsuch as dismissal of a
nondiverse party that destroyed federal jurisdictioncould be accomplished by the
district court after trial or even by the appellate court on appeal from the trial. See
Caterpillar Inc. v. Lewis, 519 U.S. 61, 71-76 (1996); see also American Fire &
Casualty Co. v. Finn, 341 U.S. 6 (1951); and Finn v. American Fire & Casualty
Co., 207 F.2d 114 (5th Cir. 1953). And even where an appellate court reverses the
final judgment and remands to state court, there is no support for the proposition
that the plaintiff is required to re-file the action and start the case anew (as opposed
to a remand for the state court to conduct the trial alone).
24
not structural error that will always invalidate conviction.); see also Fleming v.
State, 88 So. 3d 288 (Fla. 1st DCA 2012). Moreover, even if an appellate court
determines that a case should have been submitted to a jury, the only logical
conclusion is that the proper procedure on remand would be to re-try the case to a
jury, without the need to restart the entire case. Ultimately, there is no authority for
the proposition that in such a case, the voluntary dismissal of the claim for which a
jury trial was required would not render the issue moot and keep undisturbed the
verdict entered after a bench trial on the claim that was properly tried.
None of these analogies actually support Petitioners position and none
overcome the analysis of the application of Section 1305, the law of the case, and
the exposition of the cases confirming the propriety of the proceedings before the
Commission on remand from this Courts opinion in Pfeffer 1.
CONCLUSION
Wal-Mart did not seek a variance on remand. It did not request the
Commission to approve plans with the five (5) loading berths originally
contemplated (pursuant to the Citys longstanding legal interpretation of the Code,
which was invalidated by this Court in Pfeffer 1). Rather, as it has throughout the
extended life of this process, it accommodated its Project to fit within the confines
of the requirements for obtaining a Class II Special Permit by conforming the plans
to provide for only three (3) loading berths, consistent with the Courts opinion in
25
Pfeffer 1. The Commission on remand did precisely as it should have and as was
commanded by this Court. At the de novo hearing on remand, it considered that the
Project was conformed to provide only three (3) loading berths (which the
Commission surely would have required as a condition in approving the Permit if
the plans had not been conformed to so provide by that time) and carefully
examined and adhered to the findings of this Court rejecting all other challenges to
Wal-Marts application (see, e.g., App. D at 38:145:1; 78:1782:5). It thus
approved the Permit that complied with all requirements of the Code under the law
of the case established in Pfeffer 1.
For these reasons, the Petition must be denied.
Respectfully submitted this 9th day of February, 2015.
LYDECKER | DIAZ
Counsel for Wal-Mart Stores East, LP
Tel.: (305) 416-3180
Fax: (305) 416-3190
E-mail: jcw@lydeckerdiaz.com
Mark A. Emanuele (FBN 541834)
E-mail: mae@lydeckerdiaz.com
Richard Lydecker (FBN 490555)
E-mail: rl@lydeckerdiaz.com
Manuel A. Diaz (FBN 310514)
E-mail: manny@lydeckerdiaz.com
26
I hereby certify that on this 9th day of February, 2015, a copy of the
foregoing was sent via e-mail to:
Paul C. Savage
E-mail: paul@savagelegal.com
Law Offices of Paul C. Savage, P.A.
100 Almeria Avenue, Suite 220
Attorney for Petitioners
Victoria Mendez
John A. Greco
Kerri L. McNulty
E-mail: agreco@miamigov.com
E-mail: klmcnulty@miamigov.com
E-mail: slstubbs@miamigov.com
E-mail: tmickens@miamigov.com
44 S.W. 2nd Avenue, Suite 945
Attorneys for Respondent City of Miami
I HEREBY CERTIFY that the foregoing brief complies with all the
requirements set forth in Florida Rule of Appellate Procedure 9.100.
27
APPENDIX
J
APPENDIX
K

COUNTY, FLORIDA
APPELLATE DIVISION
CASE No.
14-492-AP
Resolution/File 13-01 030iia

JACOB PFEFFER,
et aI.,
Petitioners,
v.
Respondents.
REPL Y TO RESPONSES TO PETITION FOR WRIT OF CERTIORARI

Petitioners, Jacob Pfeffer, Catalina Gutierrez, Monika Pobog-Malinowska,
Vintage Liquor and Wine Bar II, Rosi Barrios, Blo Dry Bar Florida, LLC NIKIA
Batard and Lebo Studios ("Petitioners") reply to the response briefs filed with this
Court by Respondents City of Miami (the "City") and Wal-Mart Stores East
("Wal-Mart").
SAVAGE ~~ LEGAL
CASE No.
14-492 AP
INTRODUCTION
The governing City Code goes to great lengths to set out distinct procedural
tracts for non-variance applications that can be administratively approved (Class II
Special Permit) under Chapter 13, versus variance-containing applications (Major
Use Special Permit or MUSP) under Chapter 17. The Petitioners appealed at each
juncture by arguing not only that a variance was present, but, more importantly and
emphatically, that the presence of the variance had a procedural and substantive
legal impact, to-wit:
the presence of the variance required different action by
professional staff, different standards for approval, and most critically of all, public
hearings as of right, instead of by appeal with all evidentiary and legal burdens on
Petitioners.
The Respondents, stinging from this Court's quashal, sought to save face by
treating the Opinion of the Court as having the least meaning and impact as
possible.
With a red pencil, they changed a loading berth to a "staging area,"
quickly scheduled a re-hearing before the City Commission, and that was that.
Respondents put much faith in the de novo standard of review applicable to
the proceeding below, framed procedurally as an appeal from the Planning, Zoning
and Appeals Board (PZAB) to the City Commission.
This faith is misplaced,
however, because while "de novo" is the lowest standard of review, (which by
definition means that no deference must be afforded to the tribunal below), the
2
SAVAGE ~..., LEGAL
CASE No.
14-492 AP
applicable standard of review (however low) does not change the role of the
appellate body or the nature of the proceeding:
it was an appeal and not an
original proceeding (such that a new application or kind of application could be

entertained with one hearing before the Commission, and thereby nullifying the
entire Code-based process governing Class II Special Permit processing).
While new evidence may be presented in a de novo proceeding, all the
evidence in the world could not change the following two points of facts and law:
(1) the application throughout the proceedings had contained a variance (as this
Court held); and (2) the application and all of the proceedings in connection with it
had been handled under the non-variance process. The City Commission departed
from the essential requirements of law when it refused again to enforce its own
procedures as they have been published to the citizenry.
Put another way, if the Court ignores for a moment the entire previous
appellate case and quashal that creates the present procedural posture, and
imagines that this case is coming before it now for the first time, this Petition
would be equally valid for pointing out that the City allowed a Class II Special
Permit with a variance to travel all the way up through the non-variance process,
identified a variance at the very end, and merely removed it, thus blessing all of the
prior illegality.
SAVAGE 3~~ LEGAL
CASE No. 14-492 AP
I.
Standard of Review.
The three-prong standard applicable to a petition, such as this one, is well-
established. The Respondents, however, would have the Court believe that a kind
of "super error" is required to constitute a departure from the essential
requirements of the law. But this Court, construing this Code, and reviewing this
Commission, approving this kind of permit, has made clear that:
The City is bound by the procedural requirements imposed by the
code and cannot renege on its promise to its citizens to uphold the
code. Failure of an agency to adhere to its own regulations
constitutes a departure from the essential requirements of the law.
As such, the ruling of the City Commission fails to observe the
essential requirements of the law, the second prong of first tier
appellate review.
Dougherty v. City of Miami, 13 Fla. L. Weekly Supp. 959a (Fla. 11 th Cir. Ct. July
14, 2006), cert. denied, 944 So. 2d 370 (Fla. 3d DCA 2006) (emphasis added;
citations omitted).
This undisputable canon of Florida local government law was
quoted and recited and re-emphasized in this Court's Pfeffer I decision, now
published at Pfeffer v. City of Miami, 22 Fla. L. Weekly Supp. 424b (Fla. 11th Cir.
October 15, 2014).
After all of their poorly-aimed crowing about the "law of the case," both
Respondents try and point this Court to 1980's era criminal cases about
"miscarrage of justice" for the standard of review. City Response at 9; Wal-Mart
4
SAVAGE ~,~ LEGAL
CASE No. 14-492 AP

Response at 10. This is apparently an extension of their practice of trumpeting
rulings in their favor while stubbornly "shaking off' rulings adverse to their cause.
The governing standard in this case (that goes to the heart of City procedures) is
best put by this Court's renewed recognition of Florida law that has long mandated
strict adherence to codified municipal regulations and procedures. See Pfeffer I at
4, and the cases collected therein.
II.
Argument.
The Petitioners will next address each of the five arguments advanced by
Petitioners in the Amended Petition, and the Respondents' counter arguments, in
tum.
(1)
Quashal is the only remedy on certiorari, placing the case, parties
and proceedings back in their original posture such that the Commission
departed from the essential requirements of the law when it again denied the
appeal. The Petitioners pointed out with citation to Broward County v. G.B. V.
Int'/ Ltd., 787 So. 2d 838, 844 at fn. 18 (Fla. 2001), that: "When the order is
quashed, as it was in 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 ... " G.B. V. at 844 (quoting Tamiami Trail
Tours v. Railroad Commission, 174 So. 451,454 (1937)). Faced with this Court's
SAVAGE .:..~ LEGAL
CASE No. 14-492 AP
Opinion holding that the Class II Special Permit did in fact contain an unlawful
variance, the City inexplicably ruled the exact same incorrect way it did previously
and denied the appeal. (cf A:8 with A:9). The part of the written text of the
Resolution of the City Commission "denying the appeal" was the same in both
Pfeffer I and in this case. The Petitioners' appeal from the PZAB was not granted
in part and denied in part. It was, unlawfully and somewhat arrogantly, denied just
the same in both proceedings. Petition at 24. Neither the City nor Wal-Mart
answer these citations or this argument.
(2)
The City Commission misapplied the concept of "law of the case"
by refusing to follow this Court's Opinion.
The City Commission used a
tortured understanding of "law of the case" as an excuse to rule the exact same way
it did last time. The Petitioners point out that: "The law of this case is that the
Class II Special Permit application had an unlawful variance, thus destroying its
status as a Class II Special Permit, and nullifying those proceedings in its name
while it was masquerading as a lawful instrument."
Petition at 26.
The
Respondents do not answer this argument.
(3)
The variance and non-variance processes are entirely different,
especially the legal burdens, standards and nature of the public hearings. The
Petition points out that had the variance been correctly identified in the beginning,
then proceedings before PZAB and City Commission would have occurred as of
SAV AGE ~ LEGAL
CASE No.
14-492 AP
right under the Code, as opposed to what happened here, with the Petitioners
bearing all burden to initiate the proceedings as appellants. Petition at 28. WalMart and the City do not answer this argument.
(4)
The variance and non-variance procedures are entirely distinct
and may not be combined in a hybrid manner. The Petitioners noted that the
procedural tracts are substantively and procedurally distinct, and cannot be
combined.
Petition at 29.
argument:
"The Code contemplates that a Class II Special Permit may be
This is where the City brings forward its single
approved, even when the application as originally received did not comply with all
of the requirements under the Code for issuance of such a permit." City Response
at 13.
The City points to the Director's power to "approve, approve with
conditions, or deny" applications, as well as the City Commission's authority to

"modify, in whole or in part, with or without conditions." City Response at 13-14.
As the Petitioners argued in Pfeffer I, the City correctly points out, and this
Court ruled, Section 1305 and Ordinance 11000 applies and governs these
proceedings. City Response at 13. 1 But the general powers to modify and add
Wal-Mart bums down another poor straw man by feverishly asserting that
Section 1305 is law of the case and cannot now be disavowed by Petitioners
(even though Petitioners argued for its application in Pfeffer I and prevailed).
Wal-Mart Response at 14. This is as far afield from relevant argument as their
inexplicable argument to the City Commission that Petitioners sought to have
7
SAVAGE .:..' LEGAL
CASE No.
14-492 AP
conditions to an otherwise legal development approval cannot possibly overcome

the Code's express statement that: "A variance is not a special permit." 1901,
City of Miami Zoning Code (11000). As the Code makes clear, a Class II Special
Permit cannot exist with a variance. 627.2.3 (governing Code for this Special
District and requiring Section 1305 for non-variance Class II Special Permits and
requiring all variances to be processed under Article 17 (MUSP)). The Director's
and the City's powers under Section 1305 to make "modifications" or add
"conditions" to an otherwise lawful permit cannot overcome the clearly distinct
procedural tracts set out in the Code for variance, and non-variance, particularly
when combined with an Appellate Court Mandate that the Class II Special Permit -
- since day one -- contained a variance.

When presented with the black-and-white code provisions and this Court's
Decision, the thin reed of minor "modifications" and "conditions" upon which the
City stands quickly snaps. The City then parrots all of the cases that require strict
adherence to City Code procedures, in support of Petitioners, and offers no
contrary case authority. City Response at 15-16.
Even agreeing with all of the City's arguments, the City Commission did not
"grant" the appeal from the PZAB (by recognizing the true law of the case that the
the City Commission "reverse" this Court.

Attachment B Transcript at 23-24.
SAVAGE ~~ LEGAL
Amended Petition at 16-17,
CASE No. 14-492 AP

application did have a variance) with "conditions." The City Commission instead
repeated its prior unlawful act and "denied" the appeal from the PZAB again, as if
this Court's Opinion had not issued.
(5)
The non-variance tract under Article 13 (Class II Special Permit),
and the variance tract under Article 17 (Major Use Special Permit), are
entirely different, and the Commission should have reversed the PZAB upon
remand. The City does not directly answer this argument. Wal-Mart brings to the
Court two decisions they claim are dispositive: Hernandez-Canton v. Miami City
Commission, 971 So. 2d 829, 831 (Fla. 3d DCA 2007) and Dougherty v. City of
Miami, 3 So. 2d 156 (Fla. 3d DCA 2009). Both decisions support Petitioner's
positions.
In Hernandez-Canton, the Third District untangled a "pipeline" issue, where
Section 1305 had been amended during the pendency of City and appellate
proceedings. Id. at 831. The Third District picked the newer version of Section
1305, quashed an Appellate Division ruling and remanded for "proceedings
consistent" with its holding. Id. The City, adopting the same stubborn ostrich
position in 2006 that it does today, took the approach that the Third District had
not invalidated their 2004 resolution. Id.
The Third District clarified that they
had in fact nullified the City's 2004 resolution, and that the City needed to make
findings under Section 1305 according to the new version, as the Court previously
SAVAGE ~~ LEGAL
CASE
No. 14-492 AP
ruled. Jd. 2
The Court directed the parties on remand to re-open the proceedings and
present evidence going to the Section 1305 factors. Wal-Mart (and the City by
adoption) argue that this case compels the result they seek. Wal-Mart brief at 18.
But in Pfeffer I this Court did not remand with the kind of instructions set out in
Hernandez-Canton to hold an evidentiary hearing on a single issue. This Court, to

the contrary, made a legal ruling, that the subject application did contain a
variance, just as the Petitioners have argued since February, 2013, and for the City
to have proceedings consistent therewith.
The Court's Mandate, however, was met with an effort to give it as short
shrift as possible. The City Commission's act of denying the Petitioner's appellate
argument about the variance is hardly consistent with this Court's ruling, and in
fact flouts it. The fact that there was a remand in a reported zoning case does not
help the Respondents. While it is closer to the subject matter than their standard of
review cases from the criminal law, it actually helps Petitioners. How? Judge
Cope noted at the end of the decision that certiorari lies, as it does in this case,
when "there has been a departure from the terms of the appellate court ruling in the
The Court held that eight minutes per side was far too short to allow the parties
to go through twenty-five Code factors, and that the objectors in that case could
not raise a facial constitutional challenge to the City Code. Id. at 832.
10
SAVAGE ~ LEGAL
CASE No. 14-492 AP

proceedings on remand." Id. The Respondents nullified the remand by ignoring
the legal consequence of this Court's ruling that a variance infected the application.
The Respondents next bring Dougherty v. City of Miami, 3 So. 2d 156 (Fla.
3d DCA 2009), and notably, rely not upon the decision in chief, but the
concurrence. Wal-Mart Response at 19. The holding by Judge Ramirez, however,
compels the relief sought by Petitioners.
The procedural history packed into this brief decision can be confusing but
is important: (a) PZAB grants Class II; (b) appeal to Commission that denies Class
II; (c) Circuit Court, Appellate Division quashed Commission resolution; (d) Third
District denied certiorari but remanded for proceedings; (e) upon remand
Commission denies appeal and grants permit.
Dougherty, at 157.
With this
procedural background, the Third District held that the City Commission did not
follow the law of the case as set down by the earlier Circuit Court, Appellate
Division. Id. Having suffered the Respondents' tortured misapplication of the
"law of the case" doctrine before the Commission and now before this Court, the
Petitioners welcome the Third District's enunciation:
"The law of the case
mandates that questions of law actually decided on appeal must govern the case in
the same court and the trial court, through all subsequent proceedings."
Id.
ecitations and internal quotations omitted; emphasis added).

Similarly, this Court ruled as a matter of law that the subject application
SAVAG~ LEGAL
CASE No. 14-492 AP
contained a varIance from day one, and consequently during years' worth of
proceedings and appeals in this matter. Instead of reversing course over that time,
the Respondents stubbornly pressed on in their denial of the variance, arguing in
sharp opposition to Petitioners at each procedural turn. The law of this case as set
down by this Court required the Commission to grant the appeal from the PZAB
and rule that the PZAB was wrong to rule that no variance was present, no matter
what the standard of appellate review, whether abuse of discretion, miscarriage of
justice, or de novo.
The use of "de novo" connotes the standard of review, period. The standard
of review cannot change an appeal to an original action. As this Court recognized
in Pfeffer I, only the Director possesses jurisdiction to process Class II Special
Permit applications, and to do so according to the procedural processes imposed by
the Code.
Wal-Mart's counsel appears to strain their Westlaw account running down
myriad far-flung authorities in the various areas of practice to refute the analogies
of nullified proceedings posited by Petitioners.
Wal-Mart Response at 21-25.
They were merely general illustrations to aid in communicating the Petitioners'

position, and the Petitioners do not need them, in any event. The text of the City
Code's procedures, the unbroken line of cases mandating strict adherence to
municipal procedures, this Court's Mandate in this Case, and the reported
SAV AGE 12
~ LEGAL
CASE No.
14-492 AP
decisional law pertaining to this very municipality and species of permit, all
compel the City Commission to recognize the true law of this case: the application
contained a variance on the first day, and important legal consequences flow from
that determination under the City's Code. Merely changing the name on the plans
from "loading berth" to "staging area" at this stage ignores those legal
consequences, not to mention cheapens this Court's holding and ignores the true
law of this case.
Variances are obtained under one of the highest factual and legal hardship
standards in all of Florida law. For this reason, developers are loathe to identify
and apply for them. If the result urged by Respondents is permitted here, then
development approval applicants, such as the Respondents, will be incentivized
and indeed rewarded for burying their variances in their applications, leaving it to
the affected persons and interested parties to challenge and litigate all the way up
through the Boards, City Commission and Courts, ultimately obtain a ruling that an
unlawful variance was present as a matter of fact and in law, and then all that needs
to be done once the hand is caught in the cookie jar is just remove the offending
variance and otherwise the project remains approved. This untenable result urged
by the Respondents cheats the procedural process imposed by the Code, not to
mention the citizenry who are entitled to the Code as published.
13
SAV AGE ~,~ LEGAL
CASE No. 14-492 AP
CONCLUS ION
Based upon the fore go ing reasons and legal authority, certiora ri is both
necessary and justi fied to qu as h the City' s denial of the a ppea l of the Class II
Special Permit.
Respectfull y submitted ,

Florida Bar No. 088587
The Law Offices of Pa ul C. Savage, P .A.
100 Almeria Avenue
Suite 220
Coral Gables, Florida 33 134
Telep hone: (305) 444-7 I 88
Facsimile : (305) 444-7 186
BY ~ '
Paul ~
SA V A Glf ~ LEGAL
CASE No. 14-492 AP
certi fY th at a copy of this Repl y to Responses to Petition for Writ of
Certiorari was se rved by email on February 19, 20 15 to: Ass ista nt City Attorney,
John A. Greco, Esq., 44 S . W. 2'1(1 Ave nue, Suite 945, Miami , Florida 33130
(Iaw@ mi ami gov.com; j agreco@ mi a mi gov.co m) and Ri chard J. Lydecker, Esq.
and Joan Carlos Wizel , Esq ., 122 1 Brickell Aven ue, Floor 19, Miami, F lorida
33131 (rl @ lydec kerd iaz.com; j cw@ lydeckerdi az.com).
Paul C. Savage
BN 088587)
I hereby ce rti fY that thi s petition was prepared in Times New Roman, 14point font, in compliance w ith Rul e 9.100(1) of the F lorida Rules of Appellate
Procedure.
Pa ul C. Savage (FBN 088587)
15
SA V AGE .,. LEGAL
APPENDIX
L
IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA
JACOB PFEFFER, CATALINA GUTIERREA,ET AL ,
APPELLANT
APPELLATE DIVISON
APPELLATE CASE NO.:14-492 AP
V.
CITY OF MIAMI, FLORIDA and WAL-MART STOERS EAST, L,
APPELLEE
TO:
PAUL C SAVAGE
100 ALMERIA AVENUE, STE 220
CORAL GABLES, FL 33134
ATTORNEY FOR APPELLANT
KERRI L MCNULTY
444 SW 2ND AVE, STE 945
MIAMI, FL 33130
ATTORNEY FOR APPELLEE
TO:
RICHARD LYDECKER
1221 BRICKELL AVE, 19TH FLOOR
MIAMI, FL 33131
VICTORIA MENDEZ
444 SW 2ND AVENUE, #945, MIAMI RIVERSIDE
CENT
MIAMI, FL 33130
NOTICE OF HEARING
WITH ORAL ARGUMENT
Place:
Richard E. Gerstein Justice Building

1351 N.W. 12th Street, Courtroom 7-1
Miami, Florida
Date of Hearing:
August 20, 2015
Time of Hearing:
3:30 P.M.
PLEASE TAKE NOTICE THAT the above styled cause will be called up on its merits before this Court ,
pursuant to the Florida Rules of Appellate Procedure 9.320, at the place and time on the date
aforesaid.
DATE: May 18, 2015

Abby Cynam on
Adm inist rat ive Judge, Appellat e Division
NOTICE OF HEARING REV. 6/25/09
APPENDIX
M

2015-10-19 Appendix To Response To Petition For Writ of Certiorari

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2015-10-19 Appendix To Response To Petition For Writ of Certiorari

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IN THE THIRD DISTRICT COURT OF APPEAL

Per Curiam Denial of Petitioners Petition for Writ of

Opinion in Pfeffer 1 (filed October 15, 2014)

Mandate issued in Pfeffer 1 (October 31, 2014)

Crowdfunding campaign website to help fund Fight

Transcript of de novo hearing before the City

Petitioners Petition for Writ of Certiorari filed in case

Petitioners Amended Petition for Writ of Certiorari filed

Wal-Marts Response to the Petition for Writ of

City of Miamis Response to the Petition for Writ of

Petitioners Reply to Wal-Marts and the City of Miamis

Notice of Oral Argument on August 20, 2015

Class II Special Permit Extension (dated December 12,

Respectfully submitted this 19th day of October, 2015.

Attorneys for Respondent City of Miami

CITY OF MIAMI, FLORIDA. et al.,

procydure and laws of the STATE OF FLORIDA.

Lower Tribunal Case Number(s): 13-0103II

Mandafe rev. 10/22/2008

Walmart Stores East.

Previously, the Planning Director

Issued the perm it. Petitioners Jacob

Pfeffer, et al, appealed to PZAB, the

Planning and Zoning Appeals Board, which

denied the appeal, and also appealed to

this Commission, which denied the appeal

by Resolution R13-0471, on November 21,

raising a number of arguments.

Wilfreda Gort, Chairman

Pfeffer, et al, appealed to the

The circuit court -- the appellate

division of the circuit court ruled that

the Planning Director was not bound by the

recommendations of the NET office and the

UDRB. The written findings of the

City Attorney's Office

Commission were sufficient as a matter of

law. The project met the 65% pedestrian

use frontage requlrem ent. The project

On behalf of the Appellants

complied with the liner uses requirement.

Paul Savage, Esq.

The project was In com pllance with the

setback requlrem ents for parking

Victoria Hendez, City Attorney

HIAtii-DADE COUNTY COURT REPORTERS. INC.

building continuity requirements.

And the project satisfied the

MIAMI-DADE COUNTY COURT REPORTERS, INC. (305) 373-5600

I'm going to Introduce briefly Item

Thank you, sir.

PZ.lO, and then very promptly yield to the

City Attorney's Office.

I will simply note for the record

These rulings of the appellate

division of the circuit court are the law

of the case. They're outside the scope of

this CommIssion's review today. The

Com m isslon can rely on all the past

evidence on the record regarding this Item

and use that as a part of their decision

that Item PZ.lO Is related to-- and I'm

here today, along with the law of the