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Key Biscayne Gateway Partners, Ltd. v. Village Council for Village of Key Biscayne

Florida Court of Appeals, Third District

February 21, 2018

Key Biscayne Gateway Partners, LTD., Appellant,
Village Council for The Village of Key Biscayne, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 13-38696 Jerald Bagley and Pedro P. Echarte, Jr., Judges.

          Hall, Lamb, Hall & Leto and Matthew P. Leto, Andrew C. Hall and Vanessa Palacio, for appellant.

          Weiss Serota Helfman Cole & Bierman and Laura K. Wendell and John Quick and Elizabeth K. Coppolecchia, for appellee.

          Before SUAREZ, LAGOA and SALTER, JJ.

          SALTER, J.

         Key Biscayne Gateway Partners, Ltd. ("Gateway"), and its trial court counsel (Michael A. Winkleman, Esq.), appeal three orders awarding attorney's fees as a sanction under section 57.105, Florida Statutes (2016), to the appellee, the Village Council for the Village of Key Biscayne, Florida ("Village"). We reverse and vacate each of the orders below.[1]

         The issues presented are whether Gateway's petition for mandamus to compel the Village to approve a proposed site plan was so unsupported by material facts or then-existing law as to warrant sanctions under section 57.105, and whether the trial court's orders contained the requisite findings to that effect.

         Gateway owns a parcel of land within the Village of Key Biscayne. It applied to the Village for approval of a site plan and conditional use approval to permit development of the property as a Walgreens pharmacy store. In February 2014, the Village approved the site plan, but with a condition requiring a limitation of cross-access to the property from an adjacent commercial property to pedestrians, bicycles, and golf carts. Gateway filed an amended petition for mandamus in the circuit court alleging that the Village's site criteria were satisfied by Gateway's application and that there was no legal basis for restricting access to the property by vehicles from the adjacent commercial plaza.[2] Gateway simultaneously filed a petition for writ of certiorari in the appellate division of the circuit court challenging the access restriction conditionally imposed by the Village.

         In response, the Village moved to dismiss the amended petition for mandamus with prejudice on the grounds that the Village Council heard the site plan application as a quasi-judicial body, such that Gateway could not allege a non-discretionary, ministerial duty to approve the application without the cross-access condition. The Village relied on Florida appellate decisions, including American Riviera Real Estate Co. v. City of Miami Beach, 735 So.2d 527 (Fla. 3d DCA 1999), Board of County Commissioners v. Snyder, 627 So.2d 469 (Fla. 1993), and Marion County v. Kirk, 965 So.2d 330 (Fla. 5th DCA 2007), holding that appeals from quasi-judicial land use decisions are properly and exclusively brought as a petition for certiorari rather than for mandamus.

         The Village also argued that Gateway was estopped from seeking relief in mandamus, as Gateway's simultaneously-filed petition for certiorari relief in the appellate division of the circuit court affirmatively alleged jurisdiction under Florida Rule of Appellate Procedure 9.100(c)(2) (applicable to petitions for review of "quasi-judicial action of agencies, boards, and commissions of local government . . . ."). Gateway opposed the motion, arguing (among other points) that a federal decision applying Florida law, Disser v. City of Tampa, 2013 WL 3975759 (M.D. Fla. July 31, 2013), supports the use of mandamus to compel the issuance of a permit where the conditions for issuance have been satisfied.[3] The decision considered an argument by the defendants that certiorari, not mandamus, was the "proper mechanism to review a quasi-judicial proceeding, " requiring dismissal of the petition for mandamus. Id. at *6. The court rejected that argument:

However, certiorari review is limited to determining whether procedural due process was provided, the essential requirements of law were observed, and competent substantial evidence supported the City's decision to deny Plaintiffs' permit application. Those certiorari matters are not challenged in Plaintiffs' petition for mandamus relief. Instead, Plaintiffs' petition contends Defendants have a ministerial duty under the Code to issue the permit; this matter is properly considered on mandamus. Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996) (mandamus is used to compel performance of ministerial duties, meaning "there is no room for the exercise of discretion, and the performance being required is directed by law."). The Court therefore disagrees that certiorari, rather than mandamus, relief is the proper relief.


         The Village prepared and served a motion for sanctions on Gateway alleging that Gateway's position was contrary to well-settled law, and thus sanctionable under section 57.105(1) if not withdrawn within the 21-day "safe harbor" period specified in section 57.105(4). Gateway did not voluntarily dismiss the mandamus petition within that period. The trial court dismissed the mandamus petition with prejudice, and Gateway appealed that ...

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