Filing # 97968920 E-Filed 10/28/2019 02:28:35 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND

FOR MIAMI-DADE COUNTY, FLORIDA

WARREN PERRY APPELLATE DIVISION

Petitioner, CASE NO. 2019-219-AP-01

v. L.T. CASE No.: City of Miami

CITY OF MIAMI, Ordinance No. 13848, 13849, 13850
Respondent.
__________________________/

FIRST AMENDED
PETITION FOR WRIT OF CERTIORARI FILED PURSUANT TO RULE
9.100(f) FLORIDA RULES OF APPELLATE PROCEDURE

Petitioner, WARREN PERRY, by and through his undersigned counsel,

hereby requests that this Court issue a writ of certiorari quashing the decision of the

City of Miami Commission (“Commission”) (i) denying his Motion to Intervene;

and (ii) approving the Magic City Innovation District Special Area Plan application

consisting of a rezoning and comprehensive plan amendment for multiple parcels

and development agreement (collectively, “MCID SAP”). This Court has

jurisdiction to review this decision pursuant to Florida Rules of Appellate Procedure

9.030(c)(2) and (c)(3).

INTRODUCTION

Residents have a right to take part in the design and planning of their

neighborhoods. This is the foundation of building equitable and inclusive

communities that respond to the needs of all residents. The Miami 21 zoning code

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and Miami Comprehensive Neighborhood Plan (MCNP), the primary documents

that govern the master planning of the City of Miami, explicitly include language

aimed at ensuring that all residents can have a place in the future of the city. Miami

Comprehensive Neighborhood Plan, Affordable Housing Goal HO-1. This

language is not purely aspirational, it is prescriptive. And yet, the equity tethered

directives are too often treated by City officials as lofty ambitions that stand in the

way of “progress.”

Much to the chagrin of residents, the mandated policies and procedures to

protect the character of neighborhoods and provide community members a way to

meaningfully engage in the planning process are often flouted by the very

government officials they rely on to represent their interests. The benefit, in this

dynamic, inures to those with greater access to power and wealth.

The impact of undermining community participation in Special Area Plan

applications is particularly pronounced, given that the sheer size of such projects has

the potential to change neighborhoods in one fell swoop. It is precisely when so

much is at stake that residents should be able to actively take part in the proceedings.

This is the story of the approval of the Magic City Innovation District Special

Area Plan. As is shown herein, at multiple junctures, members of the community

were not given their due opportunity to raise legitimate questions, present evidence

and have their concerns be properly considered regarding a project that stands to

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transform a neighborhood forever. The voluminous objections and evidence placed

into the record by members of the public, Petitioner and undersigned counsel were

not given due weight, even as Applicant failed to produce substantial and competent

evidence to support a rezoning and comprehensive plan amendment of this scale.

Unfortunately, the process was marred by procedural irregularities and

contradictions, resulting in a project that is not consistent with legal requirements of

the zoning code, the comprehensive plan and well-established law.

Specifically, as more fully outlined below, the City departed from the

essential requirements of law in approving the MCID SAP: (1) By departing from

the intent and guiding principles of Miami 21 as it relates to preserving

neighborhoods and providing for affordable and workforce housing; (2) By

departing from the express requirements of Miami 21, Sec. 3.9.1(h)(10), as the

MCID SAP is clearly out of scale and character with the surrounding area

neighborhood, analyses and documents required under Miami 21, Sec. 7.1.2.8 were

not provided, and the project violates specific Miami 21 requirements as to buffers

or transitions; (3) Because it did not base its decision on competent substantial

evidence; and (4) Because it denied Petitioner Warren Perry Intervenor Status

Request in contravention of well-settled law.

I. PARTIES

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 Petitioner Warren Perry resides at 207 N.E. 62nd Street, #17, Miami, FL,

33138, a building directly across from the MCID SAP area. Warren Perry

Declaration, App., Exh.T, Vol.3, at 2330.1 Given the proximity of Mr. Perry’s

residence to the area, he stands to be deeply impacted by increased traffic, pollution

and noise from the project, particularly as construction continues over a projected

development period of at least 15 years. Id.

II. STATEMENT OF FACTS

A. Nature of MCID SAP Application

On January 12, 2018, MCD Miami, LLC (“Applicant”) submitted an

application for the Magic City Innovation District Special Area Plan (“MCID SAP”),

located within the Little Haiti neighborhood of the City of Miami. The 37-parcel

assemblage totals 17.75 acres and proposes land-use changes and rezoning for 30 of

the 37 parcels in the project area. App., Exh.M, Vol.1, at 1962-1965. The

comprehensive plan amendment application proposes land use designation changes

from medium density restricted commercial and light industrial uses to general

commercial use. App., Exh.M, Vol.1, at pp.1965-1969. The application proposes the

rezoning of 30 of the total 37 parcels from parcels currently zoned T-5 and D-1 to

Applicant-created custom zoning designations, MCID-1 and MCID-2. App.,Exh.M,

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All citations are to the Petitioner’s Appendix (“App.”), the Exhibit Number
(“Exh.”), the Volume number of the Appendix (“Vol.”) and the page and line
(separated by a colon) of the citation (“at 2400:2”)

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Vol.1, at pp.1962-1965. The current maximum allowable height for the T5 zone is

five stories plus one bonus story for a total of six stories maximum, though no

existing buildings in the area are taller than one or two stories. City of Miami Zoning

Code, Miami 21, Article 5.5, Illustration 5.5, Urban Center Transect Zones, (p.

V.23). The maximum allowable height for the D-1 designation is eight stories plus

two bonus stories for a total of ten floors maximum height. [City of Miami Zoning

Code, Miami 21, Article 5.9, Illustration 5.9 Work Place District Zones, (p. V.55)].

On the other hand, MCID-1 and MCID-2 designations can go up to building heights

of 20 and 25 stories, respectively, with only the buildings fronting NE 2nd Avenue

retaining the low intensity character of the surrounding neighborhood. App., Exh.M,

Vol. 1, at 1965.

The density and intensity proposed in the application – approximately 2,630

residential units, 432 hotel rooms (or 201,600 square feet), 2,208,540 square feet of

office space, 520,970 square feet of commercial space, 119,610 square feet of expo

space, 6,081 parking spaces, 215,493 square feet of civic space and additional

370,000 square feet for surplus parking (or 8,164,140 square feet total development

on 17.75 acres), App., Exh.M, Vol. 1, at 1963 – is grossly out of proportion with the

surrounding neighborhood and stands to permanently alter the lives of the residents

and business owners in Little Haiti. App., Exh.S, Vol. 3, at 2163-2235; Exh.T, Vol.

3, at 2236-2392; Exh.U, Vol. 3 at 2393-2405; Exh.V, Vol. 3, at 2406-2428.

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 B. Description of property and surroundings

Northwest of the SAP property lies the Little Haiti Soccer Park. App., Exh.B,

Vol. 1, at 175. This park is the largest public park in Little Haiti and is used

frequently by the community. App., Exh.L, Vol.1 at 1930. Parcel 4 of the SAP

borders the Little Haiti Soccer Park on the Eastern border and parcel 9 of the SAP is

just across NE 62nd St on the southeastern border of the park. App., Exh.B, Vol. 1,

at 175. Both of these parcels are to be zoned as the custom designation MCID-2

under the SAP application. According to the MCID SAP Concept Book, three 25-

story apartment buildings will sit on these abutting parcels and tower over one of the

most important parks in Little Haiti. App., Exh.B,Vol.1, at 179; App., Exh.O, Vol.2,

at 2023-2026. To the east of the property across the Florida East Coast (FEC)

railroad is Eaton Park. App., Exh.B, Vol.1, at 175. Under the SAP, the eastern border

is rezoned as MCID-1, which allows up to 20 story buildings that would be

overlooking the park. App., Exh.B,Vol.1, at 179; App., Exh.O, Vol.2, at 2023-2026.

Local businesses along NE 62nd Street that reflect the 1-2 story buildings

characteristic of the current neighborhood (despite their D-1 zoning), are cornered

in by parcels 9 and 12, both of which would be zoned MCID-2 (up to 25 stories

allowed) under the SAP. App., Exh.B, Vol.1, at 153; Exh.M, Vol.1 at 1965, 1969,

1985. These local businesses consist of Yo Miami, an artist collective, MPH Import

& Export, Inc., a used car lot, and Joe Auto Repair, a mechanic, among others.

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 Directly south of the southern flank of the SAP’s most intense development

along 60th Street is a row of warehouses (some of which are included in the MCID

SAP parcels) that are a single story tall. App., Exh.B, Vol.1, at 175. These

warehouses stand to face a wall of development that will loom up to 25 stories over

them with no buffer to speak of. App., Exh.B, Vol.1, at 175. Just south of this row

of properties is the Little Haiti Cultural Complex. App., Exh.L, Vol.1, at 1930. The

Little Haiti Cultural Complex is a multi-use, city-owned community center that hosts

markets, artistic performances, and community meetings. Id.

Though Applicant describes the area as “underdeveloped,” “outdated,” and

“vacant,” this mischaracterizes the neighborhood given that on each side of the

development are heavily frequented parks, a cultural center, a large church, and local

businesses adjacent to land. App., Exh.N, Vol.2 at 1992; Exh. P at 2032.

Furthermore, Applicant’s Third Updated Letter of Intent states that the centerpiece

of the MCID SAP is the “abandoned” Magic City Trailer Park when in actuality the

trailer park was home to as many as 40 families before one of the initial partners in

the project bought the land and cleared it of its tenants. App., Exh.N,Vol.2, at 1992.

C. City Staff Analyses Accompanying MCID SAP Application before

July 18, 2018 Hearing Raised Significant Concerns

In its Staff Analyses of the Comprehensive Plan Amendment (“Comp Plan

Analysis”) and the Special Area Plan (“SAP Analysis”), the Planning and Zoning

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Department Staff (“PZ Staff”) heavily qualified its consistency findings2 and even

made inconsistency findings in its Comp Plan Analysis on the basis of the project’s

failure to adequately address housing affordability and equity concerns. App. Exh.L,

Vol.1, at 1943-48 (“Findings 4, 5, 6, 13”), as well as the application’s

unsubstantiated need for density and scale since the present land use and zoning

designations offer greater density and intensity than currently exists and flexibility

that could accommodate all of the land uses envisioned by the Applicant. Id. at 1943-

44 (“Findings 2, 3”).

In terms of equity, these analyses, and the Comp Plan Analysis in particular,

raised pointed concerns about the income levels of the existing Little Haiti residents

in the areas ¼ mile from the Magic City SAP area, where 70-100 percent of residents

are low to moderate income. App., Exh.L, Vol.1, at 1940-1943. At the same time,

the Applicant’s Economic Impact Analysis cited by the staff’s analysis states that

“The economic benefits derived from the project assume that 100 percent of

dwelling units will be occupied by households with incomes of $75,000 per year.”

App., Exh.L, Vol.1, at 1940. For the purposes of consistency findings, satisfaction

of the conditions turned, in significant part, on the Applicant’s commitment to

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This Petition refers to consistency findings with the Miami Comprehensive
Neighborhood Plan to the extent that Miami 21’s stated purpose under 2.1.1(a) “is
to implement the Comprehensive Plan” and the PZ Staff’s Comp Plan Analysis to
the extent that it can be cited as evidence associated with the SAP application.

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provide 7% affordable and 14% workforce housing units at income levels

appropriate for the neighborhood. App., Exh.M at 1977; App., Exh.L, Vol.1, at

1943-1948 (Criteria 4 through 6).

The analyses further raised concerns about the depletion of land with “Light

Industrial” land use designations and the D-1 zoning designation. Notably, the SAP

Analysis states “Staff finds that there are many similarities with the D1 District and

future innovation district needs within the City of Miami….It is recommended that

the existing D,1 District Zoning remain and be expanded upon….” App., Exh.M,

Vol.1, at 1970-1971. It is also clear that the bonus height scheme set forth under

Miami 21’s Public Benefits Program was also a central guiding principle of the SAP

Analysis, which assumed that the by-right building heights would be kept low, with

any additional height contingent on the provision of public benefits such as

affordable housing. App., Exh.M, Vol.1, at 1975 (“Criteria H.10, Findings”).

Despite the many reservations and concerns enumerated in the analyses, the

PZ Dept ultimately recommended approval, with significant conditions. App.,

Exh.L, Vol.1, at 1949; App., Exh. M, Vol.1, at 1977-1981). It is worth noting that

while a later memorandum dated Oct 25, 2018 attempted to correct the previously

identified inconsistencies with the comprehensive plan identified in the Comp Plan,

it did not correct all of inconsistencies. App., Exh.L, Vol.1, at 1959-1961. As noted

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in the record, the analyses were never revisited after the documents were

significantly changed for the February 28, 2019 hearing. App., Exh.S, Vol.3 at 2171.

D. Sept. 27, 2018 First Reading Hearing

On September 27th, the Commission voted to defer all items related to the

MCID SAP application until November 15th, 2018. App., Exh.F, Vol.1, 980-983.

E. Nov 15, 2018 First Reading Hearing

On November 15, 2018, the first full hearing of the MCID SAP application

took place. Members of the Applicant’s development team urged that the

Commission take a “vote of belief,” App., Exh.G, Vol.1, at 1101:16, and asked that

they be given “the benefit of the doubt” that the Applicant would come through on

their promises. App., Exh.G, Vol.1, at 1108:5-6. Ultimately, the Commission voted

to defer a vote on first reading. App., Exh.G, Vol. 1, at 1175:3-18.

At this hearing, counsel for Applicant, Mr. Neisen Kasdin, and the developer

team presented on their application. Mr. Kasdin described the SAP as “taking a long-

abandoned trailer park and mostly vacant warehouses” and revitalizing the

community. App., Exh.G, Vol.1, at 1088:20-25. Community members, such as Bob

Powers, contested that it is a demeaning characterization of the existing community,

as “there has [sic] always been tenants” conducting businesses such as furniture

repair and upholstery in that “very vibrant area.” App., Exh.G, Vol.1, at 1076:9,14-

15. Mr. Kasdin also estimated the value of community benefits to be $41 million and

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noted the SAP’s commitment to creating 500 units of affordable housing, all of

which “must be in the Little Haiti neighborhood.” App., Exh.G, Vol.1, at 1122:18-

21; Id. at 1123:7-10.

Developers failed to supplement their application materials with substantial

competent evidence in their presentation. The only witness called, apart from

individuals from the developer team itself, was Bernardo Fort-Brescia, an architect

from the firm that designed the project. App., Exh.G, Vol.1, at 1111:20-25. He

emphasized the MCID SAP’s commitment to creating traffic-based linkages

between “the community and our new neighborhood” and using the DuPuis

historical building as a “gateway from the neighborhood that exists to the new

neighborhood.” App., Exh.G, Vol.1, at 1120:16; Id. at 1113:21-22. In the architect’s

words, the MCID SAP would serve as an entirely new “focal point” for the

community. App., Exh.G, Vol.1, at 1119:23-25. This testimony’s use of terms like

“new neighborhood” indicates that the architect sees the project not as something

that would integrate into the fabric of the neighborhood, but rather as something to

be grafted onto the existing community. The Applicant did not call any other expert

witnesses; the only other technical testimony came from the City’s Planning and

Zoning Department. App., Exh.G, Vol.1, at 1132:3-1144:20.

Francisco Garcia, Director of the Planning and Zoning Department (“PZ

Director”), answered the Commission’s inquiries into the present and proposed

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development capacities of the land. Id. He clarified that the area was currently zoned

T5-O and D-1, which together allowed up to 845 dwelling units. App., Exh.G, Vol.1,

at 1133:23-1134:18. If it were “straight rezon[ed], not necessarily going through an

SAP,” it would change to T6-8-O, which could allow a maximum capacity of 2,630

dwelling units. Id.. The proposed SAP maintained this cap of 2,630 units to stay in

line with what a straight rezoning would allow. Id..

PZ Director Garcia then enumerated his department’s concerns that had not

been sufficiently addressed. PZ Director Garcia strongly recommended “that the

maximum AMI (area median income) that those workforce housing units should be

made available at is 120 percent, not the 140 percent AMI that is made reference to

in some of the documents.” App., Exh.G, Vol.1, at 1138:4-1139:10. Second, PZ

Director Garcia emphasized the need for the affordable and workforce housing

commitments to be counted as units not square footage. App., Exh.G, Vol.1, at

1139:21-1140:8. He further noted the workforce housing would be onsite, while the

affordable housing would be offsite on an adjacent property. App., Exh.G, Vol.1, at

1077:3-16. Fourth, PZ Director Garcia determined that the present development

capacity would “allow up to 10-story buildings of significant height.” App., Exh.G,

Vol.1, at 1140:12-19. He discussed the various buffer areas surrounding the MCID

SAP and highlighted his efforts to “step[] in the increased development capacity so

that on the edges, it basically retains the character of the abutting conditions” and

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that it is “only in the center, in the core of the project… that some additional height

is allowed.” App., Exh.G, Vol.1, at 1141:10-18. As the map shows, however, there

is no true “core” or center to this uneven assemblage of parcels, making it impossible

for there to be a true “stepping up” of intensity that would impact adjacent properties.

App., Exh.O, Vol. 2, at 2024-2026; App., Exh.B,Vol.1, at 179-80.

PZ Director Garcia strongly suggested that it was “much more desirable” to

cap the buildings at 20 stories, as opposed to the 25 stories the MCID-2 designation

would allow. App., Exh.G, Vol.1, at 1141:19-25. However, it is worth noting that

even 20 stories would be out of scale and character with the surrounding

neighborhood. App., Exh.O, Vol.2, at 2025-2026. The Commission did not ask any

questions about these concerns, and it certainly did not revisit the specific

recommendation for a 20-story maximum height, at this hearing or thereafter.

In response, the Commission expressed their concerns about the relative value

of the SAP in comparison to the offered community benefits. As Commissioner

Hardemon noted, the “moment that this SAP is created, it creates value for this

space,” where even if the developers simply “dig a hole” they would still have more

value in the land because of the increased development capacity that comes with an

SAP designation. App., Exh.G, Vol.1, at 1146:24-1147:6. He also opined on the

unique nature of this SAP, in contrast to high-intensity usages such as Brickell City

Centre, where MCID’s 20-story and 25-story buildings would be “a different

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monster” in the Little Haiti neighborhood that “changes forever that space.” App.,

Exh.G, Vol.1, at 1151:7- 16. Commissioner Hardemon made additional comments

on the nebulous nature of hiring commitments and other commitments, given the

way the provisions were drafted in the development agreement. App., Exh.G, Vol.1,

at 1148:20-1149:2. The Commission voted to continue the items to the February 28,

2019 PZ agenda. App., Exh.G, Vol.1, at 1175:3-25.

F. Feb 28, 2019 Hearing

At the February 28, 2019 hearing on first reading of the MCID SAP, continued

from the November 15, 2019 hearing, Commissioner Hardemon revealed a

renegotiated benefits scheme that jettisoned the Miami 21-created Public Benefits

Program scheme under Sec. 3.14 in favor of a cash benefit deal for $31 million that

would go in part to a to-be-established Little Haiti Community Revitalization Trust,

and in part to a particular group of community organizations. App., Exh.H, Vol.1, at

1188:5-1191:11. Before discussion on the item began, Little Haiti-based community

organization Family Action Network Movement (“FANM”) presented its request for

intervenor status as an organization. App., Exh.H, Vol.1, at 1248:14-1251:10. The

Commission opted not to vote on intervenor status and did not make a motion on the

matter. App., Exh.H, Vol.1, at 1314:20-1315:12.

During the discussion on intervenor status, Senior Assistant City Attorney

Rafael Suarez-Rivas misstated the evidentiary standard from Renard vs. Dade

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County, 261 So. 2d 832 (1972), the prevailing case on the matter of standing in

zoning hearings. Mr. Suarez-Rivas stated that an intervenor must show that they

suffered a special injury, different in kind and degree than the general public. App.,

Exh.H, Vol.1, at 1251:18-23. Mr. Kasdin supplemented this line of reasoning by

arguing that an organization needed to show that they were affected more greatly

than other organizations in the same neighborhood. App., Exh.H, Vol.1, at 1273:12-

14. Undersigned counsel corrected the standard for the record, indicating that the

standard in challenging an amendatory zoning ordinance is to show that the party

seeking intervenor status had legally recognizable interests that would be “adversely

affected in a manner greater than those of the general public” and “the comparison

is not organization to organization within one neighborhood.” App., Exh.H, Vol.1,

at 1291:11-15. This exchange was the first indication that the Commission would

be misapplying the law on standing when considering intervenor requests. For this

reason, the Renard standard was spelled out in more detail in the Intervenor Status

request submitted on June 27, 2019. App., Exh.T, Vol. 3, at 2243-45.

It should be noted that the Commission and Mr. Suarez-Rivas discussed the

importance of the notice zone (500 feet for rezonings under Miami 21 Sec.

7.1.2.8(c)(2)), as a key factor to consider. App., Exh.H, Vol.1, at 1259:16-1260:1;

1277:1-5. Chairman Russell noted that impact may be felt beyond the notice zone in

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a rezoning of a property the size of the MCID SAP. App., Exh.H, Vol. 1, at 1264:23-

1265:5.

Moreover, the developers presented the amended Development Agreement

and Regulating Plan to the Commission for the first time on the same day as the

Commission meeting. Both Chairman Russell and Commissioner Reyes noted that

the first time that they each saw the documents was at the hearing that day. App.,

Exh.H, Vol.1, at 1219:2-8. Members of the public also objected to the fact that there

had been no opportunity to examine the documents before public comment was

opened. [App., Exh.H, Vol.1, at 1250:4-9; 1327:24-25.

Contrary to Mr. Kasdin’s assertions that the documents had barely changed,

significant alterations had been made to the Development Agreement and the

Regulating Plan that would impact comprehensive plan consistency findings and the

project’s consistency with Miami 21. This was evident when Commissioner

Hardemon introduced the substantial changes made to the benefits structure, and

Chairman Russell’s initial reaction to the “really big news” was that he wanted to

“understand exactly what this means” because the amendments had the potential to

either be “tremendously beneficial” or disastrous for the community. App., Exh.H,

Vol.1, at 1197:2-14. Even Planning and Zoning Appeals Board Member Andy

Parrish testified to the insufficiency of the $31 million deal, considering the size of

the SAP, the lack of private investment in the area, the socioeconomic demographics

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of Little Haiti, and the precedential effects of approving the MCID SAP for future

SAPs. App., Exh.H Vol.1 at 1328:23-1331:23.

The last-minute provision of the project’s altered foundational documents

caused confusion, as evidenced by questions from the dais that indicated a lack of

understanding about the proposed changes. For instance, long into the discussion,

Chairman Russell incorrectly described the amended agreement as constituting both

the 500 units of workforce and affordable housing and $31 million in contributions

to a future Little Haiti trust. App., Exh.H, Vol.1 at 1369:17-1370:10.

In light of this confusion, Chairman Russell correctly invoked the rarely used

five-day rule under Section 2-33(c)7 of Code E to postpone the vote and give both

the Commission and the public sufficient time to review the just-presented,

substantively significant amendments. App., Exh.H, Vol.1, at 1398:12-21. Had the

Chairman not done so, the Commission may have voted on the project without

examining the amendments. In fact, Commissioner Hardemon concluded his

introductory remarks on the changes to the development agreement by motioning

for approval of the MCID SAP, despite the fact that none of the other Commissioners

had ever seen the amended documents prior to Commissioner Hardemon’s

explanation. App., Exh.H, Vol.1, at 1196:9-21.

Even after Chairman Russell properly called on the five-day rule, the rest of

the Commission attempted to proceed with substantive discussion. City Attorney

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Victoria Méndez clarified that if the agreement was changed “substantially,” then

“the Chair is absolutely right” in his application of the rule. App., Exh.H, Vol.1, at

1425:23-1426:6. Since the rest of the Commission refused to acquiesce, Chairman

Russell then adjourned the meeting using another rule under Section 2-33(c)(7).

App., Exh.H, Vol.1, at 1427:12-23. Other Commissioners continued to debate after

the meeting adjourned. App., Exh.H, Vol.1, at 1432:3-1441:1. Ms. Méndez then

noted that the earliest the amended items could be considered was March 28, 2019,

but Commissioner Hardemon insisted on placing the amended items on the agenda

sooner than allowed by improperly moving to have them considered as substitute

items on March 14, 2019 App., Exh.H, Vol.1, at 1438:25-1439:1-2.

On March 14, 2019, the Commission discussed that it was unclear whether

irregularities in the procedural history of the MCID SAP items at the February 28,

2019 hearing would follow the substitute items. Thus, on March 14, the Commission

deferred the items to March 28, 2019. App., Exh.I, Vol.1., at 1446 -1449.

G. March 28, 2019 hearing

The City Commission hearing on March 28th, 2019, began with Mr. Kasdin,

legal counsel for Magic City, presenting on the positive aspects of the MCID SAP

project, without speaking about the application’s consistency with Miami 21 or the

MCNP. App.,Exh.J, Vol.1, at 1627:2-1628-23. The Applicant again touted the

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benefits of the $31 million contribution, eschewing any mention of the previously

committed (and now eliminated) 7% affordable and 14% workforce housing units.

PZ Director Garcia followed this presentation, stating on record that the PZ

Department was concerned that under the new deal, the proposed $31 million would

not necessarily go exclusively to income-restricted housing, affordable or

workforce, and that there was no longer a verifiable assurance that the “potential 600

units” of affordable or workforce housing would be provided. App., Exh.J, Vol.1, at

1675:14-1679:5; 1676:23-1677:13. PZ Director Garcia then set forth a process by

which the remainder of the $31 million could be satisfied within the first third of the

life of the project by adhering to the City-established public benefits payment rate

of $10.81 per square foot. App., Exh.J, Vol.1, at 1678:4-20. This would also allow

the City to leverage the funds to build affordable or workforce housing units. Id.

Commissioner Manolo Reyes acknowledged the reasonableness of this

proposal, however Mr. Neil Fairman of the Applicant development team took

exception to this proposal, thinking it unfair. App., Exh.J, Vol.1, at 1682:5-22. He

cited a number of factors that would make it impossible to proceed in this manner,

and insisted - or even threatened - that to push any further would be to risk having

them walk away. Id. at1682:23-1683:1. No expert witness was brought forward to

substantiate or corroborate Mr. Fairman’s assertions.

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 Commissioner Hardemon emphasized the need for better housing conditions

in Little Haiti and the importance of affordable homeownership instead of building

more rental properties (though the very MCID SAP project they were voting on

proposed 2,630 apartment rental units). App., Exh.J, Vol.1, at 1691:21-1695:7. This

kind of exchange could have been helped by an intervenor with the ability to

introduce additional evidence and expert testimony into the record. As mentioned

below, for the June 27, 2019 hearing on second reading of the MCID SAP, Petitioner

did present additional expert evidence including an appraiser who could have

supplemented the record in this regard.

Community organizations and undersigned counsel submitted a Third

Amended Statement of Evidence and Objections into the record. App., Exh.S, Vol.3

at 2163. Importantly, that submission raised a range of concerns about the $31

million deal and whether it amounted to less resources for the community. App.,

Exh.S, Vol.3, at 2165-2169.

At this March 28th, 2019, hearing, Petitioner Perry publicly objected to the

approval of the MCID SAP. App., Exh.J, Vol.1, at 1497:10-1499:24. He testified to

his concerns over the lack of low-income housing in the plan, the

mischaracterization of the area surrounding the Magic City Innovation District, and

the insufficiency of $31 million to address the community’s needs. Id. Mr. Perry

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testified that this area is not a neighborhood of “illegal residents” or vacant lots, and

that the development would be better suited in a different part of town. Id.

H. Submission of the Intervenor Status Request

On June 27, 2019, Petitioner submitted, together with community

organization FANM of which he is a member, an Intervenor Status Request with

exhibits. App., Exh.T, Vol.3 at 2236. The request set forth the legal standard for

standing, correcting the misstated Renard standard on “special damages” that the

City Attorney and City Commission were applying in a blanket fashion. The request

claimed several bases on which the organization, as well as the individuals, could

claim standing. Among the exhibits were declarations, the Third Amended

Statement of Objections and Evidence submitted for the March 28, 2019 hearing,

traffic maps created by traffic engineers interpreting Applicant’s own traffic study

data, a report that Petitioner and undersigned counsel commissioned from Earth

Economics quantifying the potential social and environmental costs of the MCID

SAP development, and a selection of online real estate property listings that

explicitly mentioned or referred to the nearby Magic City SAP as a selling point

from a list of over 40 such listings. App., Exh.T, Vol.3, at 2293-2298.

I. June 27, 2019 Hearing

The MCID SAP application came up for vote on second reading before the

Commission on June 27, 2019, after having gone through the Expedited State

21
Review process for large scale rezoning and comprehensive plan amendments.

Before the PZ agenda began, the Commission entered into a colloquy with PZ

Director Garcia as to whether to defer, since PZ Staff was still involved in

negotiations with the Applicant on the Development Agreement. PZ Director Garcia

stated that they were close to a solution, and the Commission opted to give PZ

Director Garcia and the Applicant more time to negotiate. The exchange begged the

question as to whether the Commission would have time to review the altered

documents in enough detail before taking a vote at second reading.

When the MCID SAP items came up late in the evening, Petitioner,

represented by undersigned counsel, presented the Intervenor Status Request

described in the previous section. App., Exh.T, Vol.3, at 2236. As we argue below,

Petitioner was wrongfully denied his opportunity to participate in the proceedings as

intervenor. Petitioner also submitted an accompanying Statement of Objections and

Evidence relating to the MCID SAP items up for second reading, with appendices

presenting evidence. App., Ex.U, Vol.3 at 2393. Among the appendices were an

expert architect’s report, an expert appraiser’s report appraising the land value before

and after approval of the SAP, real estate property listings from the Little Haiti area

explicitly mentioning the Magic City SAP in marketing, and diagrams from the

Applicant’s concept book that would have served as the basis of Petitioner’s

presentation, had they been given the opportunity to take part as intervenors. Experts

22
who produced some of the reports remained for the duration of the hearing in case

Petitioner had the opportunity to call them. Because Petitioner’s intervenor status

request was denied, the experts were forced to confine their detailed observations

and findings to the two minutes provided to general residents for public comment.

The Commission seemingly paid little attention to the substance of these

presentations nestled between dozens of public comments, underscoring the

importance of having a dedicated space for qualified intervenors to present evidence

and arguments for the sake of building the public knowledge and supplementing the

record for applications of the size and scale of the MCID SAP.

J. Last Minute Amendments to the Development Agreement Preceded

Final Approval of the MCID SAP

After public comment, the discussion on the items began late into the night.

PZ Director Garcia was called up to speak about the changes made to the latest

Development Agreement App., Exh.K, Vol.1, at 1870:23-25. In an about-face on

many of the comments he had made in previous hearings and in contradiction to the

substance of the PZ Staff analyses discussed above, PZ Director Garcia began by

discussing how the current industrial zoning designation of the land in question was

obsolete. App., Ex.K, Vol.1, 1871:13-1873:11. He continued on to state that the low-

scale character of the neighborhood, with its “older buildings” and “predominantly

two-story structures” is “not the zoning there today and that’s not the foreseeable

23
reality for the site and cannot be the foreseeable reality of the site in the future.” Id.

He asserted that the project can begin to “restitch together” the fabric of this land

that otherwise is “completely fragmented and inefficient.” App., Exh.K, Vol.1, at

1874:18-1875:23. PZ Director Garcia then talked about the benefits of the open

space App., Exh.K, Vol.1, at 1875:24-1876:19. While he mentioned that the space

would be “open to the public, beneficial for the public and…essentially serve as

amenity spaces for the community,” the statement masks explicit language refusing

to grant any valuable property interest in the area to the City in the Development

Agreement.3 Nevertheless, PZ Director Garcia took the time to emphasize that “for

the community” meant “public spaces to serve everyone with no restrictions

attached.” App., Exh.K, Vol.1, at 1876:16-19. This testimony from PZ Director

Garcia diverged from his past testimonies, and absolutely no additional evidence

was presented to support these assertions.

PZ Director Garcia then deferred to Applicant to address changes in the

Development Agreement that had been negotiated that very same afternoon,

3
See Amended Development Agreement Sec. 16(a)(3), which states “The
Developer shall not be required to dedicate, reserve or otherwise dispose of any
land within the SAP Area for the Public Open Space. The Developer shall retain
ownership of the Public Open Space but shall allow public access to, and public
use of, the Public Open Space at a minimum during the hours from 6:00am to
12:00am (midnight), seven (7) days a week, with reasonable temporary closures
allowed for required maintenance/construction, temporary and special events...”

24
including changes regarding payments of the $31 million fund, community

meetings, affordable and workforce housing and the partnership with an educational

institution. Apart from general statements from the Applicant saying that changes to

the Development Agreement will result in a “much more accelerated” payment plan,

and provide a “much larger pot of money” App., Exh.K, Vol.1, at 1881:20-25, the

Commission did not engage in an in-depth discussion about the text of the recently-

changed Development Agreement that they would vote to approve. The public never

had the ability to examine the amended Development Agreement before the

Commission voted on it. Two Commissioners left before the MCID SAP agenda

items came up, and the three remaining commissioners voted 3-0 to pass the items.

App., Exh.K, Vol.1, at 1926:13-20.

Applicant and the City negotiated until the eleventh hour on key aspects of

the Development Agreement to be voted on that same night. Petitioner, as well as

other members of the public still in attendance, did not know the actual contents of

the changed document before the vote took place. Had Petitioner been allowed

intervenor status, he would have had the opportunity to review the documents in

advance and make objections or put additional information into the record.

III. JURISDICTION

This Court has original jurisdiction pursuant to Florida Rules of Appellate

Procedure 9.100(f) and 9.030(c)(2)-(3).

25
 IV. LEGAL STANDARD

Quasi-judicial decisions of local governments are appealable to the circuit

courts as a matter of right. Fla. Const. art. V, §§ 5(b), 20(c)(3); Broward County v.

G.B.V. Intern., Ltd., 787 So. 2d 838, 843 (Fla. 2001). “First-tier” certiorari standard

of review is three-pronged. The circuit court must determine whether: (1) the

decision-maker observed the essential requirements of the law (2) whether the

decision is supported by competent substantial evidence, and (3) whether procedural

due process was accorded. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626

(Fla. 1982).

A. Essential Requirements of Law Standard

Departure from the essential requirements of law occurs when a decision

amounts to “a violation of a clearly established principle of law,” and results in a

“miscarriage of justice.” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.

2d 195, 199 (Fla. 2003). Similarly, a decisionmaker may depart from the essential

requirements of the law by overlooking sources of established law or applying an

incorrect analysis to the law. See City of Tampa v. City Nat. Bank of Florida, 974

So. 2d 408, 411 (Fla. 2d DCA 2007). Such a departure also includes “an inherent

illegality or irregularity, an abuse of judicial power, an act of judicial tyranny

perpetrated with disregard of procedural requirements, resulting in a gross

26
miscarriage of justice.” Sucart v. Office of Comm'r, 129 So. 3d 1112, 1115 (Fla. 3d

DCA 2013) (citation omitted).

B. Competent Substantial Evidence Standard

In its appellate capacity, the circuit court must determine if the administrative

board made a decision supported by “competent substantial evidence” and cannot

conduct a de novo review of the facts. City of Hialeah Gardens v. Miami-Dade

Charter Foundation, Inc., 857 So.2d 202, 205 (Fla. 3d DCA 2003). Competent

evidence is evidence sufficiently material and relevant to the final decision that “a

reasonable mind would accept it as adequate to support the conclusion.” Id. at 204

(citation omitted). Substantial evidence is evidence that provides “a factual basis

from which a fact at issue may reasonably be inferred.” Id. at 204. Under this

standard, fact-based citizen testimony in a zoning matter constitutes substantial

competent evidence while generalized statements unsupported by any discernible,

factually-based chain of underlying reasoning should be disregarded. Id. at 204.

C. Procedural Due Process Standard

In making quasi-judicial decisions, the administrative body must adhere to

“certain standards of basic fairness,” and if the decision based upon the record denies

the minimal standards of due process then it is not conclusive. Jennings v. Dade

County, 589 So.2d 1337, 1340 (Fla. 3d DCA 1991). “A quasi-judicial hearing

generally meets basic due process requirements if the parties are provided notice of

27
hearing and opportunity to be heard. In quasi-judicial zoning proceedings, the parties

must be able to present evidence, cross-examine witnesses, and be informed of all

the facts upon which the commission acts.” Id. at 1340.

V. ARGUMENT

As the below argument will show, Petitioner has a preliminary basis for relief.

The City departed from the essential requirements of the law in approving the MCID

SAP application, as the proposed project does not comply with requirements under

the Miami 21 zoning code; the Applicant did not meet its burden to show consistency

with the zoning code and the Commission lacked competent substantial evidence to

justify approval of the MCID SAP; and Petitioner’s procedural due process right to

take part in the proceedings as a party was violated due to a misapplication of

established law on standing in rezoning proceedings.

THE CITY ERRED IN APPROVING THE MCID SAP APPLICATION

A. City departed from the essential requirements of the law by approving the

MCID SAP

Petitioner raised extensive objections and presented evidence about the

inconsistency of the development with Miami 21 and the Miami Comprehensive

Neighborhood Plan (MCNP). App., Exh.S. Vol.3 at 2163; App., Exh.U. Vol.3 at

2393. To the extent that Miami 21’s purpose is to assure consistency with the

comprehensive plan, see, e.g., Miami 21, Sec. 7.1.2.8, the inconsistency objections

28
raised in prior submissions in the record also apply to the analysis of whether the

SAP is in keeping with the Miami 21 zoning code.

a) Approval departed from intent and guiding principles of Miami 21

Preservation of neighborhoods is a key conservation goal advancing the intent

of Miami 21. Miami 21 2.1.2(a)(1). A key development goal of Miami 21 is

“establishing a rational process for successional growth in areas identified for

density and growth.” Miami 21 2.1.2(b)(4). In approving the MCID SAP, the

Commission frustrated these foundational goals of the Miami 21 zoning code.

In its Guiding Principles for The City, Miami 21 explicitly notes that “New

Development should be structured to reinforce a pattern of Neighborhoods and urban

centers, focusing growth at transit nodes rather than along Corridors.” Miami 21

2.1.3.1(c). As noted in our Third Amended Statement of Evidence and Objections,

App., Exh.S, Vol.3, at 2174-2175, this development is not located at a transit node

but rather along a transit corridor, and yet Applicant is seeking to receive the benefits

that would be afforded a property located at a transit node. This is inappropriate.

The Commission also failed to secure consistency with Miami 21’s Guiding

Principles for the City by undermining initial efforts by the PZ Department to

include explicit set asides for affordable and workforce housing units either on-site

or within 1,500 feet of the SAP area. “Affordable and Workforce Housing should be

distributed throughout the City to match job opportunities and to avoid

29
concentrations of poverty.” Miami 21, Sec. 2.1.3.1(h). Even as the adequacy of the

7% affordable housing and 14% workforce housing unit provisions was still under

debate, the District Commissioner’s decision to renegotiate a deal directly with the

Applicant to the exclusion of this explicit commitment to provide affordable and

workforce housing caused the project to fall afoul of this provision.

The difficulty of securing this project’s consistency with Miami 21’s Guiding

Principle on affordable and workforce housing bears out in the PZ Director’s

testimony over several hearings, described supra, in which he generally reiterated

the importance of securing a verifiable number of affordable and workforce housing

units both onsite and offsite. The exception to this relatively consistent testimony is

in the hearing on Second Reading on June 27, 2019, where he reversed his position

and retreated inexplicably from his previously emphatic arguments on this subject.

That the amended Development Agreement includes a provision on affordable

housing does not cure this inconsistency, because the addition of Section 16(c)

requires only that the Applicant "support, work and collaborate with" the City on the

development of 132 units of affordable housing (far inferior to the number

previously committed 184 affordable units and 368 workforce units) that could be

funded "in part" by the developer's contributions payments. App., Exh.C, Vol. 1,

Section 16(c) at 242. Under this language, even $1 from the Trust Fund contributed

30
towards such a project would satisfy this provision of the Development Agreement

and absolve the developers of any equity-related efforts regarding housing.

There was virtually no discussion among Commission members about how

this provision was structured in the amended Development Agreement, to which

Petitioner and the public were not privy until after the hearing concluded.

b) Decision to approve MCID SAP departs from requirements

under Miami 21, Sec. 3.9.1(h)(10) because it is out of scale and
character of the neighborhood

Objections were placed into the record in a statement submitted at the June

27, 2019 second reading of the MCID SAP application. They bear repeating in the

context of this submission as Petitioner attempted, once again, to signal to the City

Commission its failure to follow the requirements under the Miami 21 zoning code.

Miami 21, Sec. 3.9.1(h)(10), which governs Special Area Plans, states:

“Flexible allocation of development capacity and Height, excluding

Density on individual sites within the Special Area Plan shall be
allowed so long as the capacity or Height distribution does not result
in development that is out of Scale or character with the surrounding
area, and provides for appropriate transitions.” (emphasis added)

The SAP area is not a self-contained block of parcels, but rather is irregularly

shaped, such that there have been no transitions or buffers provided between some

buildings zoned MCID-1 and MCID-2 (which allow for 20 and 25 stories maximum,

respectively) and abutting properties, which include one story warehouses and the

Little Haiti Soccer Park. App., Exh.O, Vol.2, at 2025-2026. That they are not built

31
to their full development capacity under present zoning is irrelevant for the purpose

of comparing the proposed development to the current scale and character of the

neighborhood. In this context, the PZ Staff, in its initial analysis, rightly

recommended retention of the D-1 zoning that provides for up to ten stories of

development. App., Exh.M, Vol.1, at 1970-1971. The PZ Staff, however, does

contradict itself within that analysis in arguing that the 20 and 25 story buildings are

adequately buffered by park land and other D-1 property. App., Exh.M, Vol.1, at

1971-1972. A cursory look at the proposed zoning map, App., Exh.M, Vol.1, at

1969, quickly calls into question the basis of this finding, which seems to ignore

properties to the north and south of the SAP area that have no buffer to speak of.

Furthermore, the jagged edges of the property create more dissonance than

integration with the existing zoning.

To the extent that the passage of Miami 21 foresaw the capacity for the area

in question to be upzoned, it zoned many of the parcels D-1, a versatile zoning

designation that allows up to ten stories in development capacity, including bonus.

The potential for heightened activity in the area was already recognized and

accounted for when city planners rezoned the area as D-1 at the time the Miami 21

zoning code was adopted. Implicit in that adoption is that a more intense zoning

designation would be inappropriate for the neighborhood.

32
 At the hearing on June 27, 2019, PZ Director Garcia walked back this analysis

by saying the opposite—that the D-1 zoning and Light Industrial use were not

needed and were obsolete. PZ Director Garcia even went as far as characterizing the

SAP as an “opportunity for change” that the Commission would “do well to

consider” despite “certainly fair comment” criticizing “the merits of whether [the

SAP is] well calibrated or not” App., Exh.K, Vol.1, at 1877:8-15. However,

objectors are aware that under the present zoning there is more development capacity

available and do not understand why it must be supercharged into even more intense

development without additional evidence in the record proving the need for this.

c) Decision to approve MCID SAP departed from requirements under Miami

21, Sec. 7.1.2.8 to provide certain analyses and documents

As raised in the 6/27/19 Statement of Objections, the Applicant appears to

have omitted the analysis required for all rezonings pursuant to Miami 21, Sec.

7.1.2.8(c)(2)(g), with the following elements:

“An analysis of the properties within a one-half mile radius of the subject
property regarding the existing condition of the radius properties and the
current zoning and Future Land Use designations of the radius properties.
The analysis shall include photos of Building elevations of both sides of the
street extending three hundred (300) feet beyond all boundaries of the site.
An aerial photo of the site and the radius properties shall be included. The
analysis shall explain why the zoning change is appropriate and why the
existing zoning is inappropriate, in light of the intent of the Miami 21 Code
and particularly in relation to effects on adjoining properties.” (emphasis
added)

33
 No explicit one-half mile radius analysis was included in Applicant’s

materials, nor did the application include an analysis that specifies building heights

300 feet from the SAP area. Further, there was no analysis based on competent,

substantial evidence about why the current zoning is inappropriate and why the

requested zoning is appropriate. All that is included is an attachment to Applicant’s

application “Exhibit B,” titled “Magic City Innovation District SAP Analysis

Supporting Proposed Density/Intensity/Height,” consisting of three pages of text

with no identified author and eight pages of photos of innovation districts elsewhere

in the country. App., Exh.N, Vol.2, at 2001-2011. If this is indeed the analysis as

required under Sec. 7.1.2.8(c)(2)(g), it is hardly adequate to satisfy this provision.

What the Applicant is proposing is not complementary to the existing

character and scale of the neighborhood, beyond surface commitments to retain the

Little Haiti name in marketing and to comply with the existing Little Haiti/Creole

District Design guidelines along NE 2nd Avenue alone. Instead, the proposed project

will transform the neighborhood in a way that is neither consistent with the

comprehensive plan and zoning code nor compatible with the surrounding

neighborhood.

d) Commission failed to follow essential requirements of law under Miami 21 by

approving a project without adequate buffers or transitions to protect the
surrounding neighborhood

34
 As Petitioner stated at length in the June 27, 2019 Statement of Objections

and Evidence, the Applicant’s design does not create buffers or appropriate

transitions in height on certain parts of the development and is therefore inconsistent

with the basic principles of Miami 21 as explained above, as well as Miami 21 Sec.

3.9.1.(h)(10). App., Exh.U, Vol.3, at 2395-2399. Because it is an irregularly shaped

assemblage of parcels, the attempt at stepping up buildings to a central core fails.

There are multiple tall buildings, slated to be designated MCID-2, which allow up

to 25 stories of height, that will directly abut single-story warehouses with the Light

Industrial use or park space. Further, as the architect’s expert report notes,

“[Even if Applicant were successful in achieving actual gradation of the

buildings] [i]n my expert opinion as an architect, locating the tallest buildings
of 25 stories abutting the proposed ‘central promenade,’ with a transition to
20, and then 10-story buildings would create the opposite of the desired urban
effect, essentially obstructing views and access to what could otherwise be an
open and accessible, renovated green space for the community. This type of
urban gesture will propagate the idea that the existing social infrastructure is
inferior and incompatible with the newly proposed buildings and will
disconnect residents in the adjacent suburban nodes from the very
development meant to reflect an innovative district identity.” App., Exh.T,
Vol. 3, at 2286-2287.

In other words, the stark difference in the scale and character of the proposed

development from that of the existing neighborhood may actually isolate current

residents and create an unwelcoming environment to those who do not fit the target

population for the development (including people currently living in and frequenting

the Little Haiti neighborhood). It is mystifying that the Commission, buffeted by the

35
changed testimony of PZ staff, would uphold this project without regard for how

wildly incoherent the approved project is with the surrounding neighborhood, as

members of the public raised in their testimony and Petitioner raised in his

submissions. See App., Exh.S through V, Vol.3.

Numerous people, including PZAB member Andy Parrish himself, came forth

to register their deep concerns about the potential of a project of this size to

completely transform the surrounding Little Haiti neighborhood, displace its most

vulnerable residents, and erase a historical culture that has been such a great part of

Miami’s rich history. App., Exh.H Vol.1 at 1328:23-1333:4. To allow such “an

inherent illegality or irregularity, an abuse of judicial power, an act of judicial

tyranny perpetrated with disregard of procedural requirements” would certainly

result in “a gross miscarriage of justice.” Sucart, 129 So. 3d at 1115 (citation

omitted). The residents of Little Haiti, like Petitioner, and indeed the City itself,

could simply not endure such an injustice.

B. City did not base its decision on competent and substantial evidence

a) Burden of proof on applicant

As the Florida Supreme Court found, the burden is upon the landowner who

is seeking a rezoning, special exception, conditional use permit, variance, site plan

approval, etc. to demonstrate that his petition or application “complies with the

reasonable procedural requirements of the ordinance and that the use sought is

36
consistent with the applicable comprehensive zoning plan.” Bd. of Cnty. Comm'rs of

Brevard Co. v. Snyder, 627 So.2d 469, 472 (Fla. 1993). In order to do so, the

Applicant must present substantial and competent evidence. As stated above,

evidence is competent when “a reasonable mind would accept it as adequate to

support the conclusion.” City of Hialeah Gardens, 857 So.2d at 204 (citation

omitted). Substantial evidence is evidence that provides “a factual basis from which

a fact at issue may reasonably be inferred.” Id. at 204. In this case, Applicant has not

met its burden.

b) Insufficient documentary and testimonial evidence

As discussed above, Applicant entered insufficient documentary evidence into

the record. Namely, to supposedly satisfy the requirement under Miami 21 Sec.

7.1.2.8(c)(2)(g), the Applicant included a document that does not meet the

requirements to provide an explicit analysis of the existing conditions of properties

within a ½ mile radius of the subject area or to provide photos of the building heights

within 300 feet of the subject area. The document is not signed or dated by any

individual or firm, and there was no expert present at hearings to substantiate the

assertions made in that document.

Moreover, the content of the Applicant’s testimony at hearings was similarly

devoid of expert analysis and content. Though the architect testified on the record,

no other expert was called by the Applicant. At the PZAB hearing, Applicant’s

37
counsel stated that a traffic expert was available to make comments, but he was

called by neither Mr. Kasdin nor the PZAB. No further reference to experts was

made at any hearing thereafter. In fact, many members of the Applicant’s developer

team who spoke at the November 15, 2018 meeting in particular beseeched the

Commission to take a “vote of belief” and to “trust” the developer team. App.,

Exh.G, Vol.1, at 1101:15-16. It is simply not enough to ask that the Commission

believe. In order for a Commission to approve a rezoning of this magnitude,

competent substantial evidence must be provided. If promises made in oral

presentations do not bear out in the documents, then the items should not be

approved until they do. No “reasonable mind” would accept promises and rhetorical

assertions as substantial, competent evidence justifying the changes requested. And

since Applicant, which had the burden of proving the need for the changes requested,

offered no more than this, the Commission should not have approved the rezoning.

c) Evidence from the PZ Department was contradictory, internally

inconsistent and unsupported by evidence or documentation

Though the burden of proof lies squarely with the Applicant, to the extent that

the City PZ Staff is relied upon to supplement the record with evidence, this evidence

also failed to meet the substantial and competent evidence standard. First, as detailed

above in the fact sections, the analyses and testimony of PZ Staff shifted with time

and without explanation. When considerable changes were made to the project’s

38
foundational documents at the February 28, 2019 hearing that warranted re-

evaluation of the findings included in previous staff analyses, these re-evaluations

never took place. Testimony also varied throughout the hearings to the point of

contradicting itself. While a change in opinion can occur, the PZ Staff did not

marshal any substantial, competent evidence to support the changes in opinion.

d) Commission did not base its findings on competent substantial evidence

As part of the text of the ordinance passed on second reading approving the

MCID SAP, there are a number of findings that the Commission cannot make if not

supported by substantial, competent evidence. These relate to consistency with

Miami 21 and the MCNP; changed conditions justifying the need for the changes

requested; and that the MCID SAP maintains the goals of the Miami 21 code to

preserve neighborhoods and provide transitions in building intensity and height.

With respect to these three findings, the PZ Staff had raised concerns in its

early analyses regarding the height, density and scale of the project, App., Exh.M,

Vol.1, at 1969-1979, “Criteria B,C,E,2,3 and Conditions,” the consistency of the

project with the goals, objectives and policies of the MCNP, and the extent to which

it mitigated the impact that it would have on a neighborhood where 70-100% of the

residents are low to moderate income. See App., Exh.L, Vol.1 at 1943-1948, Criteria

2,3,4,5,6,11,12,13. Certain conditions were placed on the project to allow it to move

forward. The PZ Staff failed to revise its findings in these analyses to account for

39
significant changes to the application between the November 15, 2018 hearing and

the February 28, 2019 hearing. These include recommendations regarding the

provision of affordable and workforce housing units, limitations on building height,

and recommendations to retain the D-1 zoning designation for properties within the

SAP area. Petitioner and undersigned counsel entered evidence into the record See

App., Exh.S, T, U Vol.1 and testimony described herein) that raised significant

questions as to the consistency of this project with the MCNP and the Miami 21

code, but these were never taken up in substance.

Curiously, at the June 27, 2019 hearing, PZ Director Garcia directly

contradicted the findings in the PZ Staff’s original analysis of the project, in which

light industrial uses and the D-1 zoning designation were praised, instead calling

these uses/designations obsolete, inefficient, and underused enough to justify the

“changed conditions” finding. App., Exh.A, Vol.1, at 13-14; App., Exh.B, Vol. 1, at

40. Though PZ Director Garcia made these assertions, he presented no evidence to

substantiate them.

e) Neither Commission nor public had time to examine documents that had
been changed in recently concluded negotiations between PZ Staff and
Applicant

Negotiations took place until the time the MCID SAP items were heard.

Applicant presented amended documents to the Commission at the time of

discussion, making it clear that the Commissioners had little time to closely examine

40
and analyze the changes made to the amended Development Agreement. Ultimately,

the Commissioners’ votes were based on Applicant’s assertions that they agreed to

“a stepped-up schedule, which will result in payments being received much faster

into the fund” App., Exh.K, Vol.1, at 1879:2-1880:8. PZ Director Garcia then noted

that this would cure the remaining area of inconsistency with LU 4.1 and 4.11 of the

comprehensive plan goals, policies and objectives App., Exh.K, Vol.1, at 1916:2-

1917:7 but did not offer any detail about how this “stepped up schedule” would

work, what “much faster” meant in terms of time, and how the stepped up schedule

would work to cure any inconsistency with the MCNP. Neither did the Commission

ask for any clarification of these vague terms.

THE CITY ERRED IN DENYING STANDING TO WARREN PERRY

On June 27th, 2019, Mr. WARREN Perry requested intervenor status in the

quasi-judicial proceeding relating to the Magic City Innovation District Special Area

Plan (MCID SAP). App., Exh.T, Vol.3 at 2236-2392. As argued below, the City

erroneously denied Mr. Perry’s request.

C. City departed from the essential requirements of the law by denying

intervenor status to Mr. Perry

On June 27, 2019, the City departed from the essential requirements of the

law by denying intervenor status to Mr. Perry, who resides approximately 299.7 feet

from the Magic City Innovation District SAP property. App., Exh.V, Vol.3, at 2410-

2412; Exh.T, Vol.3, at 2330. The City’s decision violates the clearly established

41
principles of law regarding standing in quasi-judicial zoning proceedings, resulting

in a “miscarriage of justice.” Omnipoint Holdings, Inc., 863 So. 2d at 199 (citation

omitted). The Florida Supreme Court has established that one’s proximity to a

property to be rezoned is directly related to one’s interest for the purpose of standing.

Renard v. Miami-Dade County, 261 So. 2d 832 (Fla. 1972). More specifically, one’s

inclusion among those who reside within the notice zone is an important factor to be

considered on the question of standing. Renard at 837. Like Mr. Perry, the City of

Miami itself has even “previously opined that an ‘aggrieved party’ for standing in

zoning matters was a resident that lived within 500 feet of the property” to challenge

the proposed zoning action. Miami-Dade County v City of Miami, 26 Fla. L. Weekly

Supp. 800b (Fla. Cir. Ct. Dec. 3, 2018). Mr. Perry, who resides within the notice

zone in a property abutting the SAP area, squarely falls within this category. App.,

Exh.V, Vol.3, at 2410-2412; Exh.T, Vol.3, at 2330. Thus, finding that he is not an

“aggrieved party” entitled to standing creates an inherent illegality or irregularity.

a) City overlooked sources of established law and applied an incorrect analysis

by denying intervenor status to Mr. Perry:

The City overlooked sources of established law in evaluating Mr. Perry

argument for standing. During Mr. Perry argument for intervenor status,

Commissioner Hardemon stated: “And so, the things you’re talking about, you

know, the right for affordable housing, walkability, I mean those sound like general

interest in community goods.” App., Exh.K, at 1751:5-8 (emphasis added). The

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Commissioner, however, mischaracterized the concerns set forth by Mr. Perry in

detail in his intervenor status request, App., Exh.T, Vol.3, at 2236-2392, and the

concerns that he explicitly put on the record with respect to other impacts such as

noise, measurable increase in traffic, traffic safety and walkability, and the type of

change proposed. Id. Established law recognizes these interests as being specific

concerns for the purposes of conferring standing. See, e.g., Pichette v. City of North

Miami, 642 So. 2d 1165, 1166 (Fla. 3d DCA 1994); Carlos Estates, Inc. v. Dade

Cty., 426 So. 2d 1167, 1169 (Fla. 3d DCA 1983).

Courts have found that standing may be granted if one presents a genuine issue

of material fact that they would be “affected by noise, traffic impact, land value

diminution, or in any other respect by the subject zoning ordinance.” See, e.g.,

Pichette, 642 So. 2d at 1166. Similarly, other factors that establish a plaintiff’s

sufficiency of interest include “decreased traffic safety and water pressure, and

increased population in the neighborhood school.” Carlos Estates, Inc., 426 So. 2d

at 1169. And yet, the detailed facts alleged in the intervenor status request and on

the record during the hearing regarding Mr. Perry’s interests at stake due to his close

proximity to the property to be rezoned were minimized due to Mr. Perry’s status as

a renter. Commissioner Hardemon asked:

“And so my thought about that, you know, when I read this -- and I
haven’t had counsel kind of dive into this, but how is it that someone
who is a renter in a space and who is concerned with the rising cost of
rent and walkability, how do they have a definite interest? What have

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 you shown to make that person have a definite interest that is greater
than the community goods shared in common with all citizens?”

App., Exh.K, Vol.1, at 1464:22-1465:11.

Counsel for Mr. Perry responded by citing case law that lists interests that

have been upheld as legitimate for standing purposes. The Intervenor Status

Request alleged that the proximity of Mr. Perry’s residence to the MCID SAP area

would make him likely to experience noise impacts from the construction,

concerts, expositions and other special event uses of the property contemplated in

the MCID SAP application. App., Exh.T, Vol.3, at 2242-43:28. In addition, the

Intervenor Status Request attached exhibits indicating that increased tailpipe

emissions due to traffic congestion and reduced air circulation due to the “urban

heat island” and “canyon effects” created by tall buildings will bring air pollution

to the area surrounding the MCID SAP that will impact Mr. Perry due to his

proximity to the property. App., Exh.U, Vol.3, 2353; Id. at 2357.

The evidence attached to Mr. Perry’s Intervenor Status Request showed that

he would also be disproportionately impacted by traffic near his home due to the

influx of more cars coming in and out of the property for residential, commercial,

office, retail and recreational uses. While Mr. Perry himself relies on public

transportation, like the bus, he is concerned about decreased walkability in his

neighborhood, as traffic will increase on N.E. 2nd Avenue, which runs along the

west side of Mr. Perry’s residence. See Pichette, 642 So. 2d at 1166 (traffic impact

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as a factor for standing); see also Carlos Estates, 426 So. 2d at 1169 (traffic safety

among interests at stake). Aerial maps showing traffic impacts based on the

Applicant’s Kimley Horn Traffic Impact Analysis show that there will be a net

increase in traffic volumes close to Mr. Perry’s residence. Existing PM Peak Hour

Traffic Volumes and 2025 Future Total PM Peak Hour Traffic Volumes, App.,

Exh.T, Vol.3, at 2391-92.

Lastly, Mr. Perry will be impacted by the change in character of his

neighborhood in an undesirable way, especially since the development proposes to

construct buildings as high as 25 stories that are out of scale with the rest of the

neighborhood, which is mostly comprised of buildings no higher than one or two

stories. See Renard, 261 So. 2d at 837 (character of neighborhood and type of change

proposed as factors for standing).

In the end, the City erred in denying Mr. Perry’s request for intervenor status,

presumably on the grounds that he had no greater interest than that of the general

public, based on Commissioner Hardemon’s assertion that: “[Mr. Perry]’s aligned

like other members of the community who have the same interest in what you stated

on the record.” App., Exh.K, Vol.1, at 1775:20-25; Id. at 1776:1-3. In coming to that

conclusion, the City clearly overlooked sources of established law that grant

standing based on increased noise and traffic, and decreased traffic safety by which

will impact Mr. Perry given his prima facie evidence of proximity to the SAP area.

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 b) The Commission departed from the essential requirements of the law by
giving ownership of property an outsized importance in the analysis of
standing

Contrary to well-established law, Commissioner Hardemon gave ownership

of property an outsized importance in order to undermine Petitioner’s legitimate

interests as a longtime renter in a property abutting the SAP area. Even though Mr.

Perry has lived in a property directly across the street from the SAP area for over

fourteen years, Commissioner Hardemon relegated his interests at stake to the level

of the general public because he did not own property. The Commissioner asked:

“I’m asking, because when I look at -- like, this is -- Renard that was passed
up to me. When you look at Renard, it talks about an abutting property owner.
And so, what I’m saying to you is that this person is not a property owner.
And so, you know, what interest does an abutting person who’s staying in the
property have more than the general -- than the general community? If you
were -- so how is a renter, that lives next to a development, more important
than an owner that lives next to a development?”

App., Exh.K, Vol.1, at 1461:8-22.

By this logic, the numerous other factors listed in the above section – noise,

traffic, pollution, safety – are only secondary to a primary private property interest.

As counsel stated at the hearing, this is clearly an incorrect interpretation of Renard

and its progeny that makes for dangerous precedent and unjust policy, particularly

in a majority-renter city like the City of Miami. App., Exh.K, Vol.1, at 1764:18-25.

In fact, multiple cases make it clear that it is not just a property owner who

may claim standing, including one cited by counsel: “any affected resident, citizen

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or property owner of the government unit has standing to challenge a zoning

ordinance as not properly enacted.” Town of Bay Harbor Islands v. Driggs, 522 So.

2d 912, 916 (Fla. 3d DCA 1988) (emphasis added). Accordingly, all affected

residents should be able to have their interests protected in zoning proceedings.

c) City applied an incorrect analysis in weighing Petitioner Perry’s standing

In denying intervenor status to Mr. Perry, the City applied an incorrect

analysis of the prevailing law on standing. Before voting, Commissioner Hardemon

stated: “after listening to all of the evidence that was presented, I don’t see any true

special damage to Mr. Perry that is beyond what is the normal community good.”

App., Exh.K, Vol.1, at 1775:20-24 (emphasis added). This misstates the standard,

clearly laid out in Renard and argued in detail in the intervenor status request. App.,

Exh.T, Vol.3, at 2244:33-34.

The special damages test is not the correct application of Renard. The Court

in Renard very clearly held that “[special damage] need not be shown if the taxpayer.

. . is within the affected range of the property which requires actual notice before the

rezoning made may be considered by the legislative body.” It is uncontested that Mr.

Perry resides within the affected range of the property that requires notice before the

rezoning may be considered by the City of Miami Commission. Therefore, special

damages need not be shown for Mr. Perry. See Renard, 261 So. 2d at 835.

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 Even for those not residing within the notice zone, the Florida Supreme Court

in Renard specifically retreated from the “special damage” rule established in

Boucher v. Novotny, 102 So. 2d 132 (Fla. 1958). In Renard, the Court declined to

extend to all zoning matters a blanket requirement of showing special damages for

standing. The Renard Court noted, “[t]he Boucher [special damage] rule was not

intended to be applied to zoning matters other than suits by individuals for zoning

violations.” Renard, 261 So. 2d at 835. The Court instead delineated three scenarios

for zoning-related challenges and set forth the proper standards for standing in each

scenario. Id. at 837-838. (1) Plaintiffs seeking to “enforce a valid zoning ordinance”

must satisfy the Boucher special damages test to establish standing. (2) Plaintiffs

seeking to “attack a validly enacted zoning ordinance as being an unreasonable

exercise of legislative power” must be “persons having legally recognizable interest,

which is adversely affected by the proposed zoning action.” (3) Plaintiffs attacking

a zoning ordinance as void, as where required notice failed, can be “any affected

resident, citizen or property owner of the governmental unit in question.” Id. at 838.

In the present case, Mr. Perry sought to intervene in proceedings related to an

amendatory zoning ordinance that, if passed, would amount to an unreasonable

exercise of legislative power. Thus, the second scenario contemplated by the Renard

court is applicable here, and special damages are not required to be shown to be

granted standing. Instead, one need only meet the Renard Court’s definition of

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“aggrieved or adversely affected person having standing to sue [as] a person who

has a legally recognizable interest which is or will be affected by the action of the

zoning authority in question.” Id. at 837.

Therefore, the City did not observe the essential requirements of the law

because it applied an incorrect analysis to sources of law considered. See City of

Tampa, 974 So. 2d at 411.

D. Petitioner Perry was denied his procedural due process right to intervene in
the process and should have been granted intervenor status

Mr. Perry was denied procedural due process by the City. The Miami 21

Zoning Code § 7.1.4.5.b. states that a “qualified intervenor may make a presentation,

conduct cross-examination and make final arguments....” Similarly, case law holds

that in a quasi-judicial hearing, “certain standards of basic fairness must be adhered

to in order to afford due process.” See Jennings, 589 So. 2d at 1340. “Basic fairness”

requires that “parties must be able to present evidence, cross-examine witnesses, and

be informed of all the facts upon which the commission acts.” Id. But for the City’s

departure from the essential requirements of the law regarding standing, Mr. Perry

would have been a party to the proceedings as an intervenor entitled to present

evidence and cross-examine witnesses. Thus, the Commission erroneously denied

Mr. Perry his procedural due process right to take part in the proceedings to protect

his interests at stake.

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 E. Commission’s Departure from the Essential Requirements of the Law will
cause a material injury and no adequate remedy at appeal exists

A quasi-judicial zoning decision must be challenged through certiorari. The

appropriate remedy is remanding of the matter to the lower tribunal, in this case, the

City Commission, for rehearing.

VI. CONCLUSION

For the above reasons, this Court should issue a writ of certiorari quashing the

decision of the City Commission below and remanding it for rehearing.

Dated: October 28, 2019

Respectfully submitted,

__/s/Meena Jagannath__

MEENA JAGANNATH, ESQ.

Florida Bar No.: 102684
COMMUNITY JUSTICE PROJECT, INC.
3000 Biscayne Boulevard, Suite 106
Miami, Florida 33137
meena@communityjusticeproject.com

___/s/David Winker______________

DAVID WINKER, ESQ., B.C.S.

Florida Bar No.: 73148
DAVID J. WINKER, P.A.
2222 SW 17th St
Miami, Fl 33145
dwinker@dwrlc.com

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 Certificate of Service

I certify that a true and correct copy of this First Amended Petition for Writ of
Certiorari was served upon counsel listed below via regular mail and electronic
mail, on October 28, 2019:

Victoria Mendez, Esq. Eve A. Boutsis, Esq.

City of Miami Attorney Akerman LLP
Office of the City Attorney 98 SE 7th St., Suite 1100
444 S.W. 2nd Avenue, Suite 945 Miami, FL 33131-3525
Miami, Florida 33130

__/s/Meena Jagannath__
Meena Jagannath, Esq.

Certificate of Compliance

I certify that this brief complies with the computer-generated rule from the Florida
Rule of Appellate Procedure 9.100(1). It is double-spaced, in Times New Roman
14-point font, and has 1-inch margins.

__/s/Meena Jagannath_
Meena Jagannath, Esq.

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