The Realty Associates Fund Ix, L.P. v. Town of Cutler Bay , 2016 Fla. App. LEXIS 14132 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed September 21, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2407
Lower Tribunal No. 13-22609
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The Realty Associates Fund IX, L.P., etc.,
Appellant,
vs.
Town of Cutler Bay, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Norma S.
Lindsey, Judge.
Shubin & Bass, P.A., and John K. Shubin, Salvatore H. Fasulo, and Deana
D. Falce, for appellant.
GrayRobinson, P.A., and Mark N. Miller (Lakeland), Kristie Hatcher-Bolin
(Lakeland), and J. Michael Marshall (Boca Raton), for appellees Publix Super
Markets, Inc., and GCF Investments, Inc.
Weiss Serota Helfman Cole & Bierman, P.L., and Laura K. Wendell and
John J. Quick, for appellee Town of Cutler Bay.
Before ROTHENBERG, LAGOA, and LOGUE, JJ.
ROTHENBERG, J.
The Realty Associates Fund IX, L.P. (“RAF”) appeals the trial court’s final
order dismissing RAF’s complaint, which included a consistency challenge
pursuant to section 163.3215(3) of the Florida Statutes. RAF alleged that
Resolution 13-44 (“the development order”), which was issued by the Town of
Cutler Bay (“the Town”), was inconsistent with the Town’s Growth Management
Plan (“the comprehensive plan”) because it approved the site plan for the
development of a shopping center called the “Shoppes at Cutler Bay” (“the
project”) even though the project did not include a residential component, as
required by the comprehensive plan. Based on the following analysis, we reverse
the trial court’s order dismissing Count I of RAF’s complaint because we conclude
that: (1) the comprehensive plan is clear and unambiguous; (2) the comprehensive
plan requires that the project include residential uses; (3) the project does not
contain any residential uses; and thus, (4) the development order approving the
project’s site plan is inconsistent with the comprehensive plan.
I. Procedural background
In March of 2013, GCF Investment, Inc. (“GCF”) filed a development
application with the Town seeking approval of the project’s site plan and several
other non-use variances that are not at issue in this appeal. In May 2013, the Town
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granted GCF’s development application and issued, among other things, the
development order. In June 2013, RAF filed its complaint against the Town and
GCF. Publix Super Markets, Inc. (“Publix”) was later joined as a defendant in the
proceedings after it purchased most of the subject property from GCF. Thereafter,
the Town, GCF, and Publix (collectively, “the defendants”) moved to dismiss
RAF’s complaint, arguing that RAF has failed to cite to any language in the
comprehensive plan that would require the project to include a residential
component.
In its written order granting the defendants’ motion to dismiss, the trial court
found that: (1) the project is located on a parcel of land within a Mixed Use
District along the Old Cutler Road Corridor; (2) it is undisputed that the project
does not include a residential component; and (3) the provisions that RAF cited to
in the comprehensive plan do not require the inclusion of a residential component
in the project’s site plan. After the trial court entered a final judgment in favor of
the defendants, RAF timely appealed.
II. The disputed language in the comprehensive plan
RAF relies on three interrelated provisions of the comprehensive plan in
support of its position that the comprehensive plan requires residential uses in new
development projects located within the Old Cutler Road Corridor. First, Policy
FLU-3A states that “Areas designated mixed use shall contain commercial, office,
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residential, community, institutional and recreation and open space uses integrated
vertically or horizontally, in accordance with Policy FLU-1C.” Second, Policy
FLU-1C states that “[t]he Town’s Land Development Regulations shall conform
to, and implement, the use, intensity and density standards prescribed for the land
use districts provided on the Future Land Use Map, and detailed in Table FLU-1.”
Lastly, Table FLU-1 depicts three columns: District, Uses, and Density and
Intensity, as provided below.1
District Uses Density and Intensity
Sales and service activities, US-1 Corridor
professional and clerical offices, Mix of uses, with residential uses comprising no less than 20
hotels, motels, medical buildings percent and no greater than 80 percent of the total floor area
and offices, cultural and of a vertical mixed use building, and no less than 20 percent
entertainment uses, community and no more than 80 percent of the buildings on a
facilities, institutional, parks and development site or block face. Floor Area Ratio (FAR) of 2.5
open space, and residential uses multi-family residential at up to 75 units per gross acre.
in a high quality mixed use Maximum building height of 72 feet, with no more than three
environment. Vertical mixed use stories, 35 feet adjacent to residentially zoned areas.
buildings are allowed in all Architectural features can exceed maximum height
Mixed Use underlying zoning districts in the limitations.
Mixed Use districts, with the Old Cutler Road Corridor
sales and service components Mix of uses, with residential uses comprising no less than 20
being located on the ground floors percent and no greater than 80 percent of the total floor area
and residential and office uses of a vertical mixed use building, and no less than 20 percent
being located on higher floors. and no more than 80 percent of the buildings on a
Horizontal mixed use development site or block face. Floor area ratio of 2.0, multi-
development (different uses in family residential density at 30 units per gross acre.
different buildings on the same Maximum building height of four stories, 45 feet for the
site or block face) is allowed, frontage and three stories, 35 feet for the remainder.
with specific uses determined by Architectural features can exceed maximum height
the underlying zoning district. limitations.
Vertical mixed use buildings shall Lakes-by-the-Bay Mixed-Use Site
be encouraged on sites that can Commercial, office, community facilities, and recreation open
accommodate the mix of uses space uses that serve the surrounding residential communities.
under the prescribed parameters, Floor Area Ratio of .5, maximum building height of two
while horizontal mixed use stories, 35 feet. Architectural features can exceed maximum
development is encouraged on height limitations.
sites that cannot otherwise Institutional Uses
accommodate vertical mixed use. Maximum FAR of .5 for Institutional uses in the US-1 and
Old Cutler Road corridors, and .4 in the Lakes-by-the-Bay
1 We have only included the relevant “Mixed Use” section of Table FLU-1.
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Mixed-Use sites.
The “District” column includes the broad designation of the type of use,
such as “Mixed Use” or “Low Density Residential.” The “Uses” column includes
specific permitted uses in a given district. For example, in the “Mixed Use”
district, the “Uses” column permits “Sales and service activities, professional and
clerical offices, hotels, motels, medical buildings and offices, cultural and
entertainment uses, community facilities, institutional, parks and open spaces, and
residential uses in a high quality mixed use environment.” The “Uses” column
within the “Mixed Use” district also provides that vertical mixed use buildings
“with the sales and services components being located on the ground floors and
residential and office uses located on higher floors” are allowed and that “[v]ertical
mixed use buildings shall be encouraged on sites that can accommodate the mix of
uses under the prescribed parameters.” Horizontal mixed use development is
encouraged only on the sites that cannot accommodate vertical mixed uses.
The next column is labeled “Density and Intensity.” The Density and
Intensity column in Table FLU-1 is divided into subsections by area, prescribing
various limits and regulations for each area. The subsection labeled “Old Cutler
Road Corridor,” which is the subsection at issue in this appeal, contains the
following text:
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Mix of uses, with residential uses comprising no less than 20 percent
and no greater than 80 percent of the total floor area of a vertical
mixed use building, and no less than 20 percent and no more than 80
percent of the buildings on a development site or block face.
RAF argues that the plain and clear meaning of this text requires that every
new development along the Old Cutler Road Corridor be comprised of between 20
to 80 percent residential uses, and because the project’s site plan undisputedly does
not contain any residential uses, the development orders are inconsistent with and
therefore in conflict with the comprehensive plan. Conversely, the Town, GCF,
and Publix argue that the 20 to 80 percent residential use requirement is only
triggered if the proposed development includes residential uses to begin with.
Thus, the issue before us on appeal is whether these provisions in the
comprehensive plan unambiguously require that new developments along the Old
Cutler Road Corridor contain between 20 and 80 percent residential uses.
III. Analysis of the Town’s comprehensive plan
The trial court’s interpretation of a comprehensive plan is reviewed de novo.
Nassau Cnty. v. Willis, 41 So. 3d 270, 278 (Fla. 1st DCA 2010); Dixon v. City of
Jacksonville, 774 So. 2d 763, 765 (Fla. 1st DCA 2000) (“It is well established that
the construction of statutes, ordinances, contracts, or other written instruments is a
question of law that is reviewable de novo, unless their meaning is ambiguous.”).
“Rules of statutory construction are applicable to the interpretation of
comprehensive plans.” Katherine’s Bay, LLC v. Fagan, 52 So. 3d 19, 28 (Fla. 1st
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DCA 2010). However, “[w]here the words used in an act clearly express the
legislative intent no other rules of construction or interpretation are necessary or
warranted.” Vill. of Key Biscayne v. Dade Cnty., 627 So. 2d 1180, 1181 (Fla. 3d
DCA 1993). Thus, our first task is to inquire as to the plain meaning of the
language in the comprehensive plan, and if the language chosen by the drafters of
the comprehensive plan is clear and unambiguous, then the plain meaning of that
language will control. Turnberry Invs., Inc. v. Streatfield, 48 So. 3d 180, 182 (Fla.
3d DCA 2010); Nassau Cnty., 41 So. 3d at 279 (“When the language of a statute is
unambiguous, courts are bound to follow the text.”). Additionally, “all provisions
on related subjects [must] be read in pari materia and harmonized so that each is
given effect.” Katherine’s Bay, 52 So. 3d at 28.
After reviewing all of the relevant provisions in the comprehensive plan, we
conclude that the plain meaning of the text in Table FLU-1 is clear and
unambiguous. The words “with residential uses comprising . . . no less than 20
percent” clearly demonstrate that the drafters of the comprehensive plan intended
to require residential uses in all projects located within the Old Cutler Road
Corridor, as the plain meaning of the phrase “no less than” indicates a floor or
minimum requirement. Nothing in the text of the comprehensive plan suggests that
this minimum requirement only applies if a developer chooses to include
residential uses to begin with, and nothing in the text suggests that this language
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was only limited to certain projects within the Old Cutler Road Corridor. We are
bound, as is the Town, to conform to the unambiguous language of the law as it is
written. See Atwater v. Kortum, 95 So. 3d 85, 90-91 (Fla. 2012) (“This Court is
bound to interpret statutes as they are written and give effect to each word in the
statute.”) (internal citation and quotation omitted).
The defendants contend that this interpretation would lead to an absurd
result because it would require that even the smallest developments include 20 to
80 percent residential uses. We disagree. First, we note that the comprehensive
plan reflects that it was the Town’s intent when it adopted the comprehensive plan
to transform the Old Cutler Road Corridor into a town center with residences,
workplaces, shops, and civic activity centers in close proximity to one another.
Policy FLU-3A,2 Policy FLU-3C,3 Policy FLU-3D,4 and page FLU-23 of the
comprehensive plan5 all suggest that the redevelopment of the Old Cutler Road
2 “Areas designated mixed use shall contain commercial, office, residential,
community, institutional and recreation and open space uses integrated vertically
or horizontally, in accordance with Policy FLU-1C.” (emphasis added).
3 “The area located along the Old Cutler Road corridor and designated ‘Mixed
Use’ on the Future Land Use Map shall be redeveloped as a place where living,
working, shopping, and civic activities can take place within a town center type
environment.” (emphasis added).
4 “New development and redevelopment along Old Cutler Road shall consist of a
variety of buildings and uses that will encourage pedestrian activity with wide
sidewalks, balconies, outdoor cafes, squares, and plazas.” (emphasis added).
5 This section, titled “Mixed Use,” states that a guiding principle of the Future
Land Use Element is to redevelop the Old Cutler Road Corridor in accordance with
the goals set forth in the Old Cutler Road Charrette Area Plan, such as the creation
of a framework that, in part, “enhanced the livability” of the area in a manner that
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Corridor into a partly residential, pedestrian-friendly town center was of prime
importance in the drafting of the comprehensive plan. Thus, the Town might
reasonably have intended to require residential uses in all development projects
within the Old Cutler Road Corridor in order to ensure the creation of such a town
center.
Second, based on the same provisions, it is plausible that the Town intended
to incentivize larger redevelopments within the Old Cutler Road Corridor, as
opposed to small piecemeal redevelopment, in order to force developers to create a
high quality mixed use environment, which would be in keeping with the drafters’
intention to redevelop the Old Cutler Road Corridor into a town center. Thus, we
find that including a residential use requirement for all new developments within
the Old Cutler Road Corridor is not absurd. See Nassau Cnty., 41 So. 3d at 279
(“Courts may only legitimately rely on the absurdity doctrine without running
afoul of the separation of powers . . . where it is quite impossible that [the
legislative body] could have intended the result.”) (citation and internal quotation
marks omitted).
Of course, if the Town is dissatisfied with the language in its comprehensive
plan, the Town has the power to amend its plan in accordance with sections
created a “civic district/town center and public gathering space for the surrounding
area,” and reintroduced “pedestrian-scale improvements in lighting and
landscaping [while rebalancing] vehicular movement in the corridor.” (emphasis
added).
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163.3184 and 163.3187 of the Florida Statutes. To that end, we note that a memo,
written by the Town’s Director of Community Development in 2010, specifically
addressed what the Town believes to be the undesirable consequences of the plain
language of the text in the Old Cutler Road Corridor section of Table FLU-1 we
have just discussed. This memo reveals that the Town has known about the effect
of the plain language in the text since 2010, but has not amended its
comprehensive plan to clarify the apparently undesired text. We do not condone
nor will we be party to a process of what amounts to a judicial amendment, based
upon a municipality’s attempt to circumvent the requirements of the legislative
process that led to the adoption of the comprehensive plan by altering the plain
meaning of its comprehensive plan. To do so would usurp not only the power of
the Florida legislature by casting aside the laws regarding the proper
comprehensive plan amendment procedure, but also the power of the municipality,
whose comprehensive plan would no longer yield to the collective will of the
residents of the Town, but would instead bend to the will of the judiciary. Bennett
v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 838 (Fla. 2011) (stating that “courts
are ‘without power to construe an unambiguous statute in a way which would
extend, modify, or limit, its express terms or its reasonable and obvious
implications. To do so would be an abrogation of legislative power’”) (quoting
McLaughlin v. State, 721 So. 2d 1170, 1172 (Fla. 1998)).
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IV. Conclusion
Because the plain and ordinary meaning of the language in Table FLU-1 of
the Town’s comprehensive plan requires all new development projects located
within the Old Cutler Road Corridor to contain a residential use component of
between 20 and 80 percent, we conclude that the development order, which
approved the project’s site plan even though it did not include any residential uses,
is inconsistent with the Town’s comprehensive plan, and we therefore reverse the
trial court’s order dismissing Count I of RAF’s complaint as it relates to Town
Resolution 13-44. Because it is undisputed that the project does not contain any
residential uses, we remand for the entry of a final judgment in RAF’s favor on the
basis that the development order is inconsistent with the comprehensive plan.
Based on this Court’s ruling that the development order is inconsistent with the
comprehensive plan, we decline to address RAF’s arguments regarding the trial
court’s order as to Counts IV and V of its complaint, the trial court’s order denying
RAF’s motion for leave to amend, and the trial court’s order dismissing Counts II
and III of RAF’s complaint. We also find that the defendants’ remaining
arguments are without merit, and we decline to address them further.
Reversed and remanded with instructions.
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