final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 13-38696 Jerald Bagley and Pedro P. Echarte,
Lamb, Hall & Leto and Matthew P. Leto, Andrew C. Hall and
Vanessa Palacio, for appellant.
Serota Helfman Cole & Bierman and Laura K. Wendell and
John Quick and Elizabeth K. Coppolecchia, for appellee.
SUAREZ, LAGOA and SALTER, JJ.
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
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.
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. 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.
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.
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. 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.
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 ...