Rehearing Denied March 22, 2012.
Shubin & Bass, and John K. Shubin, Miami, for appellant.
R.A. Cuevas, Jr., Miami-Dade County Attorney, and Dennis A. Kerbel, Assistant County Attorney; Robert P. Frankel, Miami, and Ralph Mora, for appellee J. Milton Dadeland, LLC.
Before RAMIREZ, SUAREZ, and SALTER, JJ.
An elected member of the Miami-Dade County Community Zoning and Appeals Board for Area 12 (CZAB), Ms. Brodeur, appeals an order dismissing her circuit court complaint with prejudice for lack of subject matter jurisdiction. The appellees are Miami-Dade County and the developer whose application was granted by the CZAB upon a second Board vote that is challenged in this appeal by Ms. Brodeur. Based on the threshold procedural posture of the lawsuit, a specific County ordinance, and the unique facts in this record, we reverse and remand the case to the circuit court.
Facts and Procedural Background
In June 2010 the CZAB convened for a regular meeting. The agenda included as item 10-23 an application by developer J. Milton Dadeland, LLC, for site plan approval to increase an existing apartment building in the Kendall area from four stories to eight stories. Ms. Brodeur and five other voting members of the seven-member CZAB were present, as were approximately 200 public objectors opposing the application. After various witnesses spoke for and against approval of the application, a motion for approval of the items with conditions was made and seconded, and discussion among the CZAB members followed. The discussion included a colloquy with Miami-Dade County staff regarding the consequences of a tie
vote. Staff, including the Assistant County Attorney present, advised that a tie vote would cause the matter to carry over to the next meeting of the CZAB.
When the vote on the item was taken, three members voted for approval, and three voted against the item. Ms. Brodeur voted against the application. The Assistant County Attorney announced that the next meeting of the CZAB would be July 21st, and that no additional notice would be sent. There was additional discussion with staff regarding the July CZAB meeting and the availability of the members to attend that meeting or a September meeting.
After additional colloquy indicating that Ms. Brodeur was ill and would not be able to remain for the balance of the meeting, she left the meeting and did not return. The chair of the meeting allowed additional discussion regarding a further amendment to the application, however, and then asked County staff whether a vote could be taken on the amended application. The Assistant County Attorney responded that such a vote would be permissible because a specific date had not been announced for a deferred meeting on the application. A member of the CZAB inquired: " The fact that a member has decided to leave for the stated reason, does that impede us from going forward on the vote? And the stated reason was that she wasn't feeling well."
The Assistant County Attorney answered that the CZAB could choose between deeming the earlier vote " to have been a deferral to the July 21st date" or going forward with another vote on the application as amended. After additional discussion, a motion for approval with the amendment carried by a vote of three to two. Weeks later, but before the Deputy Clerk of the Department of Planning and Zoning issued a written certification of the adoption of the CZAB-approved resolution, Ms. Brodeur filed a complaint in the circuit court against the County seeking declaratory and other relief. Ms. Brodeur alleged that the CZAB's actions on the resolution after Ms. Brodeur left the meeting violated County Code section 33-308  and that the approval of the application was void.
The developer was permitted to intervene. Both appellees then filed motions to dismiss Ms. Brodeur's complaint for lack of subject matter jurisdiction. After a hearing, the motions to dismiss were granted with prejudice. A ...