RESPONSE BY T3 FAMILY INVESTMENTS, LLC TO PETITIONERS MOTION FOR RECONSIDERATION

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1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA APPELLATE DIVISION CASE NO.: CA006598AY NEIGHBORHOOD ALLIANCE OF PALM BEACH, INC., a Florida non-profit corporation, ANNE PEPPER, PALM BEACH PRESERVATION ALLIANCE, LLC, a Florida Limited Liability Corporation, and WILLIAM O. COOLEY, v. Petitioners, TOWN OF PALM BEACH, a Florida municipal corporation, and T3 FAMILY INVESTMENTS, LLC, a Florida Limited Liability Corporation, Respondents. / RESPONSE BY T3 FAMILY INVESTMENTS, LLC TO PETITIONERS MOTION FOR RECONSIDERATION Respondent, T3 Family Investments, LLC ( T3 Family Investments or Applicant ), as Applicant for variances and special exceptions to develop property generally located at 221 and 231 Royal Poinciana Way and 214 and 216 Sunset Avenue (the Property ), responds to Petitioners Motion for Reconsideration ( Motion ) filed by the Neighborhood Alliance of Palm Beach, Inc., Anne Pepper, Palm Beach Preservation Alliance, LLC, and William O. 1

2 Cooley (the Petitioners). 1 The Court should deny the Motion because Petitioners are impermissibly rearguing law and facts that were fully considered and rejected by this Court in its decision. See Fla. R. App. P ( the motion shall not reargue the merits of the court s order ); McDonnell v. Sanford Airport Authority, No. 5D , 2015 WL , at *1, 40 Fla. L. Weekly D1151 (Fla. 5th DCA May 15, 2015) ( The purpose of a motion for rehearing is not a vehicle through which an unhappy litigant or attorney [may] reargue the same points previously presented, or [ ] discuss the bottomless depth of the displeasure that one might feel toward this judicial body as a result of having unsuccessfully sought appellate relief. ) (quoting Ayala v. Gonzalez, 984 So. 2d 523, 526 (Fla. 5th DCA 2008)); Gainesville Coca Cola v. Young, 632 So. 2d 83, 84 (Fla. 1st DCA 1993) (denying motion for rehearing as improper argument where motion restated the case law and facts already argued); Whipple, 431 So. 2d at 1013 (stating that it is not the purpose of a motion for rehearing to urge the court to reconsider matters 1 Petitioners Motion for Reconsideration appears to be a motion for rehearing. Although motions for rehearing are permitted by Florida Rule of Appellate Procedure 9.330, most Florida appellate courts strongly discourage the practice of routinely filing such motions. See Whipple v. State, 431 So. 2d 1011, 1013 (Fla. 2d DCA 1983). Rule 9.330(a) requires that a motion for rehearing set forth the law or fact that in the opinion of the movant the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceedings. 2

3 previously considered). Additionally, Petitioners have failed to demonstrate that the court overlooked or misapprehended any law or fact. 2 I. THIS COURT PROPERLY APPLIED THE PART 1 TEST FOR STANDING SET FORTH IN RENARD V. DADE COUNTY, 261 SO. 2D 832 (FLA. 1972), IN CONCLUDING THAT PETITIONERS FAILED TO ALLEGE AND ESTABLISH STANDING. Petitioners first argue that they do not need to show special damages because they are not seeking to enforce a valid zoning ordinance, as stated by the Opinion on page 4. Motion at 2. Instead, they are seeking to have an act of a zoning authority declared void..., for which no showing of special damages is necessary. Motion at 2-3 (citing Renard, 261 So. 2d at ). However, this is the same argument this Court considered and rejected in its opinion. In Renard, the Florida Supreme Court considered the Third District Court of Appeal s certified questions of great public interest: The standing necessary for a plaintiff to (1) enforce a valid zoning ordinance; (2) attack a validly enacted zoning ordinance as not being fairly debatable and therefore an arbitrary and unreasonable exercise of legislative power; and (3) attack a void ordinance, i.e., one enacted without proper notice required under the enabling statute or authority creating the zoning power. 2 References to the Petitioners Appendix will be cited in the same manner as in the Petition, as (R: ). References to Tr. are to the hearing transcript included as Petitioners Appendix, App. C. References to the T3 Family Investments Appendix will be cited as (T3 App. ). All emphasis is added unless otherwise indicated. 3

4 261 So. 2d at 834. Upon review, the Florida Supreme Court held: The question certified to this Court... has three parts. Part (1) deals with standing to enforce a valid zoning ordinance. The Boucher rule requiring special damages still covers this type of suit.... Part (2) of the question certified to this Court deals with standing to attack a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. As indicated above, persons having a legally recognizable interest, which is adversely affected by the proposed zoning action, have standing to sue. Part (3) of the question certified deals with standing to attack a zoning ordinance which is void because not properly enacted, as where required notice was not given. Any affected resident, citizen or property owner of the governmental unit in question has standing to challenge such an ordinance. Id. at Petitioners argue that they, like the petitioner in Renard, fall under Part (2) of the certified question, Motion at 3, which governs an attack [upon] a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. 261 So. 2d at 837. However, this Court rejected this argument and determined that Petitioners challenge falls under Part (1) of Renard s certified question. Indeed, Petitioners do not argue, either in their Petition or their Reply, that they are attacking a validly enacted zoning ordinance as being an unreasonable exercise of 4

5 legislative power. 3 Rather, as this Court determined, Petitioners are trying to enforce valid zoning ordinances regarding the granting of variances and special exceptions. 4 3 Petitioners impermissibly reargue in their Motion at 3-4 what they argued in their Reply to the Responses by T3 Family Investments, LLC and the Town of Palm Beach that Renard discusses as a Type 2 case ( attacking the validity of a zoning ordinance ) the variance cases of Elwyn v. City of Miami, 113 So. 2d 849 (Fla. 3d DCA 1959), and Friedland v. Hollywood, 130 So. 2d 306 (Fla. 2d DCA 1961). Id. at Reply at 10 n.12. Elwyn was no[t] [a case] dealing with the violation of a zoning ordinance, but one which challenged the validity of an amendatory zoning ordinance... Elwyn, 113 So. 2d at 853. Friedland declared an ordinance granting a variance from existing zoning in the city of Hollywood to be null and void because it allowed a use that was otherwise prohibited in the zone and was therefore not fairly debatable. Friedland, 130 So. 2d at 307. Here, Petitioners have not challenged the validity of any ordinances or otherwise asserted that the Town Council s actions were quasi-legislative such as those in Elwyn and Friedland that challenged the validity of ordinances. Nor, unlike the City in Friedland, has the Town allowed any uses that are otherwise impermissible in the zone. In fact, the Petitioners repeatedly refer to the Town s actions as quasijudicial, Petition at 1-2, 3, 4 and 8, which is the quintessential Renard Part 1 challenge for which a petitioner has the burden of showing special damages. In Board of County Comm rs of Brevard County v. Snyder, 627 So. 2d 469 (Fla. 1993), the Florida Supreme Court discussed the difference between zoning board actions that are legislative versus those that are quasi-judicial: It is the character of the hearing that determines whether or not board action is legislative or quasi-judicial. Coral Reef Nurseries, Inc. v. Babcock Co., 410 So. 2d 648 (Fla. 3d DCA1982). Generally speaking, legislative action results in the formulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy. Carl J. Peckingpaugh, Jr., Comment, Burden of Proof in Land Use Regulations: A Unified Approach and Application to Florida, 8 Fla.St.U.L.Rev. 499, 504 (1980). Id. at 474 (emphasis in original). Enactments of original zoning ordinances have always been considered legislative. Id. This petition, as noted above, is quasijudicial and not legislative, and therefore does not fall under Renard Part 2. 5

6 Petitioners next argue in their Motion that this Court s reliance on City of Fort Myers v. Splitt, 988 So. 2d 28, 32 (Fla. 2d DCA 2008), review denied, 6 So. 3d 52 (Fla. 2009), was misplaced because it did not involve a variance challenge. Motion at 4. In Splitt, then-judge (now Justice) Canaday discussed standing under Renard: The Renard standard for standing to enforce a valid zoning ordinance requires a showing of special damages. 261 So. 2d at 837. The special damages rule is derived from the law of public nuisance. Id. at 835 (citing Boucher v Novotny, 102 So. 2d 132 (Fla. 1958). Under this standard, an individual does not have standing to sue unless he can show special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole. Renard, 261 So. 2d at 835 (quoting Boucher, 102 So.2d at 135). 988 So. 2d at 32. Petitioners argue that Judge Canaday s requirement of special damages is dicta because of the total lack of record made in the city hearing. Motion at 4. The special damages requirement is not dicta. As Judge Canady observed in his special concurrence in State v. Yule, 905 So. 2d 251 (Fla. 2d DCA 2005), dicta is defined 4 That Renard was a Part 2 challenge to a validly enacted zoning ordinance as being an unreasonable exercise of legislative power was explicitly stated by the Supreme Court: The District Court found that petitioner Renard had sufficient standing to attack the rezoning here in question, but, on review of the record, determined that the rezoning was fairly debatable and so was a valid exercise of power by the zoning authority. We agree. 261 So. 2d at 838. Nowhere in their Petition did Petitioners challenge a validly enacted zoning ordinance as being an unreasonable exercise of legislative power. Their Petition is a Part 1 challenge for which they must show special damages. 6

7 as a statement not related to the majority s chosen decisional path or paths of reasoning : A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta. Id. at 259 n.10 (quoting Michael Abramowicz & Maxwell Steams, Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005)). In Splitt, because the law of standing governs which facts are necessary to establish it, i.e., special damages, Judge Canaday s requirement of special damages is part of the chosen decisional path or paths of reasoning and therefore not dicta. Split involved a challenge to the failure of the municipality to comply with the PUD criteria and other requirements applicable under the City s zoning ordinances. 988 So. 2d at 30. Here, Petitioners claim the Town failed to comply with criteria and other requirements applicable under the Town's zoning ordinances. See, e.g., Petition at 30 (alleging that the Town failed completely to comply with Section (12) of the Town Code, ), at (alleging a failure to meet the explicit variance standards of Section (a) ), and at (alleging Town s failure to meet special exception requirements of Section (5), (8), and (12)). Petitioners seek to enforce valid zoning ordinances setting 7

8 forth criteria for variances and special exceptions. 5 Petitioners challenge is a Part 1 Renard challenge for which special damages are required to be alleged and proven, and Petitioners have failed to do so. II. THE COURT NEITHER OVERLOOKED NOR MISAPPREHENDED THE RECORD IN THE LOCAL HEARING. Petitioners rely upon the , Fla. Stat. group standing cases of Putnam County Envtl. Council, Inc. v. Board of County Comm rs, 757 So. 2d 590, 594 (Fla. 5th DCA 2000), and Stranahan House, Inc. v. City of Fort Lauderdale, 967 So. 2d 427, 434 (Fla. 4th DCA 2007). Motion at 6-7. However, their Petition is not a challenge to a comprehensive plan, so those cases are inapplicable. Petitioners argue at length that their prior litigation history gives them special damages. Motion at 7-9. However, gadflies and [s]o-called spite suits' will not be tolerated in this area of the law any more than in any other. Renard, 261 So. 2d at 837. To allow standing to persons and entities based upon their prior litigation in other fora on other issues would impermissibly grant litigants without statutory or other legal authority the ability to deputize themselves as private attorneys general. 5 Petitioners claim in their Motion at 5 that they are challenging seven ordinances. That is incorrect. There were only six. App. B at 0006,

9 Petitioners argument that they have standing because they rent offices 500 feet from the Property is similarly unavailing. The notice zone requires notice to all property owners within 300 feet from any part of the subject property at the address shown on the county property appraiser's tax records. Town Code Not only are Petitioners rented offices beyond the notice zone, Petitioners are not property owners and thus are not entitled to any notice under the Town Code. Their argument, taken to its (illogical) conclusion, would confer standing on someone who rents a post office box at a UPS store in a strip mall to challenge zoning decisions involving surrounding properties, which is too thin a thread upon which to allow standing. CONCLUSION Based upon the record and the foregoing argument, T3 Family Investments respectfully requests that this Court deny the Motion in all respects. 6 Respectfully submitted, /s/ James K. Green JAMES K. GREEN, P.A. Florida Bar No Suite 1650, Esperantè 222 Lakeview Avenue West Palm Beach, Florida Telephone: Facsimile: jkg@jameskgreenlaw.com 6 T3 Family Investments, to the extent not inconsistent with the points and authorities set forth herein, also incorporates the points and authorities set forth in the Response by the Town of Palm Beach to the Petition for Reconsideration. 9

10 Bruce Rogow, Esq. BRUCE ROGOW, P.A. Florida Bar No: Northeast 3rd Ave., Ste Fort Lauderdale, FL Telephone: Facsimile: Attorneys for Respondent T3 Family Investments CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Response by T3 Family Investments, LLC to Petition for Writ of Certiorari was served via the e- filing portal to: Nancy E. Stroud, Esq., 1900 Glades Road, Ste. 251, Boca Raton, FL (nstroud@isdlaw.net); Kelly A. Gardner, Esq. and John C. Randolph, 505 South Flagler Drive, Ste. 1100, West Palm Beach, FL (kgardner@jonesfoster.com and jrandolph@jonesfoster.com) on this 1 st day of April, /s/ James K. Green 10