TOWN OF PALM BEACH S RESPONSE TO MOTION FOR RECONSIDERATION. Respondent, TOWN OF PALM BEACH ( Town ), by and through its

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1 Filing # E-Filed 04/04/ :10:27 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL APPELLATE DIVISION CASE NO: CA006598XXXXMB (AY) NEIGHBORHOOD ALLIANCE OF PALM BEACH, INC., ANNE PEPPER, PALM BEACH PRESERVATION ALLIANCE, LLC, WILLIAM O. COOLEY, v. Petitioners, TOWN OF PALM BEACH, T3 FAMILY INVESTMENTS, LLC, Respondents. / TOWN OF PALM BEACH S RESPONSE TO MOTION FOR RECONSIDERATION Respondent, TOWN OF PALM BEACH ( Town ), by and through its undersigned counsel, hereby responds to the Motion for Reconsideration ( Motion ) pursuant to Fla. R. App. P of Petitioners, NEIGHBORHOOD ALLIANCE OF PALM BEACH, INC. ( NAPB ), ANNE PEPPER, PALM BEACH PRESERVATION ALLIANCE, LLC ( PBPA ) and WILLIAM O. COOLEY (collectively, Petitioners ), and states:

2 INTRODUCTION In June of 2015, Petitioners filed a Petition for Writ of Certiorari ( Petition ) seeking review of a decision by the Town Council that approved six zoning variances and four special exceptions requested by Co-Respondent T3 Family Investments, LLC. On March 3, 2016, this Court dismissed the Petition for lack of standing. Petitioners have now filed a Motion for Reconsideration ( Motion ). Petitioners Motion should be denied because: (1) it improperly reargues matters already addressed; (2) the Court applied the correct test in determining that Petitioners lacked standing; and (3) the Court did not overlook or misapprehend the record before the Town Council. LEGAL STANDARD [T]he filing of Rule motions should be done under very limited circumstances; it is the exception to the norm. Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1101 (Fla. 4th DCA 1993). A motion for rehearing 1 should not be used to reargue the merits of matters already discussed in the briefs or to request the court to change its mind as to a matter which has already received the attention of the court. See id. at See also Jacobs v. Wainwright, 450 So. 2d 200, 201 (Fla. 1984) ( [a] motion for rehearing shall not reargue the merits of the Court s order ) 1 The Florida Rules of Appellate Procedure do not formally recognize motions for reconsideration. Petitioners bring their Motion pursuant to Fla. R. App. P , which, in part, permits motions for rehearing. The Town thus treats Petitioners Motion as one for rehearing under Rule

3 (emphasis added); Elliott v. Elliott, 648 So. 2d 135 (Fla. 4th DCA 1994) (same). The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. Cleveland v. State, 887 So. 2d 362, 364 (Fla. 5th DCA 2004). ARGUMENT A. Petitioners Improperly Use Rehearing to Reargue the Merits. Appellant s Motion for Rehearing should be denied because it improperly reargues issues that were addressed, at length, by the parties in their briefs and the Court in its Opinion. Petitioners devoted some ten (10) pages of their Reply Brief to the issue of standing and, specifically, the argument that this case should be considered under Renard v. Dade County, 261 So. 2d 832 (Fla. 1972), as a Renard Type II case attacking the validity of zoning ordinances. By characterizing their claims in this way, Petitioners argued that they could avoid a special damages showing and instead simply demonstrate a legally recognized interest... adversely affected by the proposed zoning action. (Reply at 10). Additionally, Petitioners presented in depth arguments that they had standing based on: Proximity: Petitioners asserted that they need not be adjacent property owners to have standing; rather the proximity of the office space maintain[ed] by NAPB and PBPA and residential proximity of NAPB and PBPA members to the Property is sufficient. (See Reply at 11). 3

4 Parking and Traffic Concerns: Petitioners argued they will suffer from a deficit of parking spaces and increased traffic and congestion caused by the proposed development of the Property. (See Reply at 15-16). Interest Exceeding that of Other Community Members: Petitioners argued that their past efforts to prevent overdevelopment of the block at issue somehow transforms their interest into one that exceeds the generalized interest shared by all citizens in the Town. (See Reply at 12-13). This Court considered the aforementioned arguments and rejected them by a lengthy, eight-page opinion dismissing Petitioner s Writ of Certiorari for lack of standing on March 3, 2016 ( the Opinion ). The Court correctly held that Petitioners seek not to attack the validity of a zoning ordinance but to enforce an admittedly valid zoning ordinance and, therefore, Petitioners must establish standing under the Renard Type I test by show[ing] special damages particular to the party that differ in kind (as opposed to degree) from the damages suffered by the community as a whole. (Op. at 4, citing City of Ft. Myers v. Splitt, 988 So. 2d 28, 32 (Fla. 2d DCA 2008); Renard, 261 So. 2d at 835). The Court then addressed [and refuted] [e]ach of Petitioners claims in turn. (Id. at 4). Residential Proximity: First, the Court considered and rejected Petitioners claim that they had standing based on residential proximity, i.e., simply because NAPB and PBPA members live and work in the north part of Town and frequently 4

5 drive by the Property. (Id. at 4-5). Petitioners had not alleged a special injury different in kind for Renard Type I and, even if they fell under Type II, they failed to plead they or any of their members were abutting neighbors or lived within immediate proximity of the Property. (See id.). Off-Street Parking Concerns: Second, the Court considered and rejected Petitioners claim that standing arose because NAPB and PBPA maintain and use office space on the same block as the Property and will suffer from alleged increased congestion and decreased availability of parking. (Id. at 5-6). The Court observed that increased congestion and traffic are typically matters of general concern that cannot support standing. (Id. at 5). With regard to parking, the Court concluded that Petitioners failed to prov[e] standing by showing that their interest in off-street parking will[, in fact,] be adversely affected because the evidence reflected a reduction in the Property s commercial impact and an increase in available parking. (Id. at 6) (emphasis added). Interest Exceeding That of Other Community Members: Third, the Court considered and rejected Petitioners argument that they have standing based on their past efforts to prevent the overdevelopment of the block which is not a generalized interest. (Id.). The Court expressly distinguished Putnam County Environmental Council v. Board of Commissioners, 757 So. 2d 590 (Fla. 5 th DCA 2000), relied on by 5

6 Petitioners, as it involved a suit to enforce a local comprehensive plan to which the liberalized standing requirements of Fla. Stat apply. (See id. at 6-7). Petitioners have now moved for rehearing, asserting that this Court: (1) applied the wrong Renard standing test in requiring that Petitioners demonstrate special damages different in kind from damages suffered by the community as a whole; and (2) overlooked or misapprehended the record below that supports Petitioners standing. (Mot. at 1-2, 5). Petitioners Motion points to nothing that the Court has overlooked or misapprehended, but merely rehashes the same arguments that were fully addressed, considered and analyzed in both the Reply and Opinion. Specifically, in the Motion, Petitioners again argue standing based on: Proximity: Petitioners argue that the proximity of the NAPB and PBPA offices and the Petitioners use thereof certainly [make] them neighbors to the proposed development and subject to a greater degree than the general public to the alleged adverse impacts. (Id. at 9). Parking and Traffic Concerns: Petitioners argue that they will be adversely affected by deficient parking and increased traffic resulting from development. (Id. at 9-12). Interest Exceeding that of Other Community Members: Petitioners claim long standing sustained and financially-backed efforts, corporately and personally, to prevent the overdevelopment of the block support standing. (Id. at 5-9). 6

7 Petitioners arguments have been thoroughly presented and rejected and should not be entertained again by this Court. B. This Court Correctly Applied the Renard Type I Test for Standing. This Court must reject Petitioners transparent attempt to obtain the benefit of the more liberal Renard Type II standing test by recharacterizing their suit for a writ of certiorari to quash the Town s quasi-judicial order approving variances and special exceptions as one seeking to have an act of a zoning authority declared void. (Compare Petition at 1 with Mot. at 2). Renard Type I deals with standing to enforce a valid zoning ordinance. That is precisely what Petitioners alleged here. The Petition supports the conclusion that Renard Type I is the appropriate test for standing. Petitioners analogized the Town s variance and special exception approvals to those local government decisions on building permits and other development orders and argued this Court had certiorari jurisdiction to review the Town s quasi-judicial decision approving the T3 Family Investments application for variances and special exceptions. (Petition at 4). They never challenged any Town ordinance or legislative act, but asserted that in granting the variances and exceptions the Town Council failed to follow presumptively valid Town ordinances, including Sections and of the Town Code. (See, e.g., Petition at 13-17, (asserting a failure to comply with Section ); 17-18, (asserting a failure to comply with Section )). Petitioners clearly challenged a quasi-judicial act 7

8 by which they contend the Town did not properly enforce a valid zoning ordinance. See Bd. of County Comm rs v. Snyder, 627 So. 2d 469, 474 (Fla 1993) (review of a quasi-judicial act is by certiorari); Dade County v. Yumbo, S.A., 348 So. 2d 392, 394 (Fla. 3d DCA 1977) (variance rulings have always been considered quasi-judicial). Nowhere do Petitioners allege that they seek to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. Renard, 261 So. 2d at 838 (emphasis added). Had they done so, review of the zoning authority s legislative decision in the circuit court would have been by a fairly debatable standard of review. See Snyder, 627 So. 2d at 474. Indeed, Renard did not simply involve the grant of a variance, as Petitioners suggest (Mot. at 3, 3-4 n. 3) but a rezoning. The Renard court s conclusion that there was sufficient standing did not even mention the challenge to a variance, but rested solely on standing to attack a rezoning. 261 So. 2d at 838. Not surprisingly, Renard therefore applied the fairly debatable standard of review to determine whether the rezoning was a valid exercise of power by the zoning authority. Id. Nor did Petitioners allege that they or any members of NAPB and PBPA are abutting neighbors or live within the immediate proximity of the Property, as this Court noted. (Op. at 5). Petitioners reliance on variance cases involving abutting neighbors and municipal action amounting to quasi-legislative spot zoning to 8

9 suggest that they can avoid showing special injury simply because this case involves a variance is thus misplaced. (Mot. at 4). 2 Here, Petitioners do not challenge the validity of the Town Code or allege that they are abutting neighbors, but instead assert that the Town failed to correctly follow its zoning code when it granted the variances and exceptions. Petitioners thereby seek to quash the approval by the [Town] of a redevelopment project that does not comply with the Town s zoning code. (Petition at 2). In effect, Petitioners seek preventive redress from the alleged violations of the municipal zoning ordinances that would purportedly occur upon construction of the redevelopment project. Accordingly, application of the Renard Type I special damages test was proper. In challenges strikingly similar to that of the Petitioners, Florida courts have applied the special damages test (Renard Type I) and rejected the legally recognizable interest test (i.e., Renard Type II). That a variance is involved does not alter the analysis, as Petitioners suggest. For example, the appellate court in Jack Eckerd Corp. v. Michels Island Vill. Pharmacy, Inc., 322 So. 2d 57, 58 (Fla. 2d DCA 1975), reversed a trial court order refusing to dismiss a complaint because the party seeking to challenge the City of 2 Elwyn v. City of Miami, 113 So. 2d 849, 851 (Fla. 3d DCA 1959), found that plaintiffs as abutting home owners had standing to challenge the validity of an amendatory zoning ordinance ) and Friedland v. Hollywood, 130 So. 2d 306, 307 (Fla. 2d DCA 1961) declared an ordinance null and void because it allowed a use otherwise prohibited in the zone and was therefore not fairly debatable. 9

10 Clearwater s grant of a variance from its required building elevations had failed to allege any special injury differing in kind from injury which may occur to the general public. 322 So. 2d at 59. The building elevations had been adopted by the city to enable property owners to obtain federally sponsored flood insurance. See id. at 58. The challenger claimed that it would suffer irreparable damage by the city s grant of a variance from building elevations because such action would cause all property owners to lose eligibility for flood insurance protection. See id. The court reasoned that the challenger failed to allege standing to sue since its alleged detriment was no different in kind from that of the general public. See id. at 59. In Skaggs-Albertson s v. ABC Liquors, 363 So. 2d 1082, (Fla. 1978), the Florida Supreme Court held that the Fourth District incorrectly substituted the legally recognizable interest test of Renard Type II for the special damages rule in Renard Type I when it failed to require that petitioners challenging the issuance of a building permit to a competitor package store prove special damages in order to have standing. The county zoning director had initially refused to issue a permit certifying that to do so would violate a county zoning resolution that prohibited construction of a package store within 5,000 feet of an existing liquor store. See id. at The applicant interpreted the measurement provisions to allow the permit. See id. Eventually, the zoning director s interpretation and decision was reversed, the permit issued and the owners of the existing liquor store challenged it. See id. at The 10

11 Supreme Court observed that in a Renard Type II case when the zoning ordinance itself [is] challenged either on substantive or procedural grounds, there is no longer the historical predicate for invoking the special damage rule. Id. at 1088 (quoting Renard, 261 So. 2d at 835). But the case before it presented no such challenge: The instant case questions the interpretation of a valid zoning ordinance. There has been no challenge to the validity of the ordinance itself either on substantive or procedural grounds. Accordingly, respondents had to prove special damages Id. at See also Skaggs-Albertson s Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So. 2d 113, 114 (Fla. 2d DCA 1976) (applying Renard special damages test and finding no standing to sue where nearby storeowner challenged grant of building permit to proposed combination grocery and drugstore as violative of city zoning ordinances, in part, because the non-storage areas of the proposed store [may not have] been properly calculated for purposes of determining the required amount of off-street parking. ). Petitioners attempt to distinguish this case from City of Ft. Myers v. Splitt, 988 So. 2d 28 (Fla. 2d DCA 2008) fails. That Splitt involved challenges to ordinances and not variances was in no way determinative of the Court s determination that the 3 The Court concluded that Respondents had demonstrated standing even under the special damages rule because while the loss of business from a potential competitor ordinarily cannot provide the existing proprietor with the requisite standing, the Court found that an alcoholic beverage dealer tends to suffer a special injury when confronted with a nearby competitor because of the regulation applicable to him and his business. See id. at 1091,

12 Renard Type I special damages test applied. The thrust of the petitioners argument in Splitt was that the ordinances did not comply with City s [planned unit development ( PUD )] criteria and other requirements applicable under the City s zoning ordinances. 988 So. 2d at 30 (emphasis added). 4 Similarly, in the instant case, Petitioners challenge the Town s grant of variances and special exceptions as not complying with requirements applicable under the Town s zoning ordinances. Nor was the special damages language in Splitt dicta or inconsistent with Renard, as Petitioners again assert. (Mot. at 4; Reply at 10 n.12). Indeed, just like Petitioners here, the petitioners in Splitt argued that the Second District should have found standing under the second Renard test. See Answer Brief in Splitt v. Fort Myers, SC (Fla. Nov. 15, 2008), available at 2008 FL S. Ct. Briefs LEXIS 1073, at *8. 5 In response, counsel for the City of Fort Myers (who represents Petitioners here) argued that the special damage test applied and required a showing of damages different in kind from that of the community where: Petitioners argued that the City failed to correctly follow the City s zoning code when it granted approval to the PUD amendments.... Petitioners sought a ruling from the Circuit Court that would compel the 4 Initially the petitioners in Splitt also sought declaratory judgment in a separate proceeding that ordinances were inconsistent with City s comprehensive plan. See id. 5 In Splitt, after the Second District s decision, the Petitioners appealed to the Florida Supreme Court asking it to exercise its discretionary jurisdiction to review conflicting decisions; the Petitioners claimed that the Second District s decision in Splitt conflicted with Renard; Putnam, 757 So. 2d 590 (Fla. 5th DCA 2000); and Pinecrest Lakes, 795 So. 2d 191 (Fla. 4th DCA 2001). The Florida Supreme Court declined to accept jurisdiction. Splitt v. City of Fort Myers, 6 So. 3d 52 (Fla. 2009). 12

13 City to enforce its zoning code (or zoning ordinance ) in the same manner that the Petitioners interpreted the code, that is, in a way that would not permit the zoning approval.. [The Petitioners] did not challenge the approval as not fairly debatable or arbitrary and capricious. Petitioners claimed that the PUD amendments did not comply with the PUD criteria and requirements of the zoning code. Id. at *7-8 (citation omitted) (emphasis added). In sum, the Circuit Court here correctly identified and applied Renard Type I special damages test as controlling Petitioners challenge seeking to compel the Town to enforce its valid zoning ordinances and overturn the quasi-judicial grant of special exceptions and variances. Petitioners have never challenged a valid zoning ordinance as an unreasonable exercise of legislative power or as being void because of a procedural irregularity (such as where required notice was not given). Petitioners instead argued, that the Town failed to correctly follow its presumptively valid zoning ordinances when it granted the variances and special exceptions. (See Petition at 3 (the Town departed from the essential requirements of law by failing to follow its zoning code )). According to Petitioners, had the Town properly applied its zoning ordinances, the variances and special exceptions would not have been approved. (See Petition at 42). On these allegations, the Circuit Court properly required Petitioners to plead special damages differing in kind and not just in degree. (See Op. at 4). 13

14 C. The Court Did Not Overlook or Misapprehend the Record Below. Finally, as detailed at pages of the Town s Response Brief, even if the Renard Type II test governed here, Petitioners failed to identify any legally recognizable interest that was adversely affected by the zoning action different from the community at large. The Court certainly did not overlook or misapprehend the record in reaching its determination. 1. Standing by Proximity Again, Petitioners argue that they have standing because the Petitioners and NAPB and PBPA members live and work in neighborhoods in the north part of Town. (Mot. at 10). This Court correctly held that this is not a sufficient basis for standing under either the Renard special injury test or the neighboring or abutting property owners test. (Op. at 4). Petitioners identify nothing that the Court overlooked or misapprehended in this regard and their renewed argument can be rejected out of hand. 2. Adverse Impact on Parking, Traffic Congestion Petitioners argue that their use of the NAPB and PBPA offices make them subject to a greater degree than the general public to the impacts of the noise, traffic 14

15 congestion and parking limitations resulting from the redevelopment project. (Mot. at 9). 6 Parking: Petitioners posit an adverse impact based on the fact that the proposed development would have less off-street parking spaces than what is required pursuant to the Town Code despite the fact that it would result in an overall net positive impact from the current state of parking. Essentially, Petitioners argue that the fact that a variance is needed equates to an adverse impact. If this were the case, the mere granting of a variance would result in an adverse impact giving rise to standing in every instance. No law supports such a result. Where unrefuted evidence established that the proposed development would reduce commercial impact and increase the availability of parking spaces, the Court correctly found no adverse impact to support standing. (See Op. at 6). Traffic: This Court held that increased congestion and traffic are typically matters of general concern insufficient to grant standing in zoning matters. (Op. at 5). This holding is well supported in Florida law. As the Michels Belleair Bluffs Pharmacy court explained: The mere increase in traffic congestion adjacent to one's property as the result of improvements erected on nearby property and the attendant inconvenience resulting therefrom which are damages suffered alike by all property owners similarly situated, does not give to one individual 6 Petitioners impermissibly raise the alleged adverse impact of noise for the first time in their Motion. See Fla. R. App. P ( A motion for rehearing... shall not present issues not previously raised in the proceeding. ). 15

16 such a substantial interest in the decision permitting the improvement as to authorize an appeal therefrom. Such increase in traffic congestion and attendant difficulties in finding parking places are matters which address themselves to the police authorities of the municipality rather than to the zoning authorities.... Such an inconvenience is a condition incident to urban living. It is merely the result of normal, urban growth and development. To hold that such an inconvenience would give to any resident or property holder of an urban area the right to override the decisions of boards of zoning appeals any time such property owner or resident disagreed with such decision would be a dangerous precedent to establish. It would result in materially slowing, if not completely stopping, the inevitable and necessary growth of large modern cities 332 So. 2d at 117 (rejecting argument that expectation of increased traffic from proposed development can provide the requisite standing) (citation omitted). Petitioners do not dispute this principle that increased traffic congestion will generally not support standing but instead argue that the traffic study illustrates an adverse impact when uses no longer existing on the site are not considered. (Mot. at 12). Because Petitioners have failed to plead, let alone prove, legally recognizable interests in increased traffic congestion, this attenuated argument must be rejected. 3. Interest Exceeding That of Other Community Members Petitioners repeated reliance on standing cases involving challenges to comprehensive plans under Section , Fla. Stat. must again be rejected. Accordingly, Petitioners argument regarding their continued interest in overdevelopment of the block (Mot. at 7), in which they rely solely on Section standing cases, fails. The Court correctly held that Putnam [County Environmental Council v. Board of County Commissioners, 757 So. 2d 590 (Fla. 5th 16

17 DCA 200)] is inapposite to the instant case, which does not involve a party seeking to enforce a local comprehensive plan. (Op. at 7). Section standing governs de novo challenges to the consistency of a development order with a comprehensive plan. Splitt, 900 So. 2d at 31. As a remedial statute intended to enlarge the class of persons with standing to challenge development orders as inconsistent with comprehensive plans, Section is to be liberally construed to advance that intended remedy. See Save the Homosassa River Alliance, Inc. v. Citrus County, 2 So. 3d 329, 336 (Fla. 5th DCA 2008); see also Splitt, 988 So. 2d at 32 ( [i]t has repeatedly been acknowledged that the standing provisions of section were adopted to liberalize the standing requirements that would otherwise be applicable (i.e., under Renard)). Putnam County and Stranahan House v. City of Ft. Lauderdale, 867 So. 2d 425 (Fla. 4th DCA 2007), 7 which involved Section comprehensive plan challenges, have no bearing on the standing requirements of this case, which does not present such a challenge. CONCLUSION For all of the reasons set forth above and in the record before the Town Council and the Court, Respondent, TOWN OF PALM BEACH, respectfully submits that Petitioners Motion for Reconsideration should be denied. 7 In addition, Petitioners impermissibly rely on Stranahan House for the first time in their Motion. It is improper for a court to consider citations or authorities relied upon for the first time in a motion for rehearing. See Cartee v. Fla. Dep t of Health and Rehabilitative Servs., 354 So. 2d 81, 83 (Fla. 1st DCA 1978). 17

18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the E-Portal to Nancy E. Stroud, Esq., 1900 Glades Road, Ste. 251, Boca Raton, FL nstroud@isdlaw.net; Bruce S. Rogow, Esq., Bruce Rogow, P.A., 100 N.E. 3 rd Avenue, Suite 1000, Ft. Lauderdale, FL brogow@rogowlaw.com; and James K. Green, Esq., James K. Green, P.A., 222 Lakeview Avenue, Ste. 1650, Esperante, West Palm Beach, FL 33401, jkg@jameskgreenlaw.com, this 4th day of April, JONES, FOSTER, JOHNSTON & STUBBS, P.A. Attorneys for Town of Palm Beach 505 South Flagler Drive, Suite 1100 West Palm Beach, Florida Telephone: Fax: By: /s/ Kelly Gardner John C. Randolph, Esq. Florida Bar No jrandolph@jonesfoster.com Joanne M. O Connor, Esq. Florida Bar No joconnor@jonesfoster.com Kelly A. Gardner, Esq. Florida Bar No kgardner@jonesfoster.com p:\docs\13156\00390\pld\1p20696.docx 18