Legal Report, February 2017

General Counsel, Jennifer G. Ashton
Corbett White Davis & Ashton

1. Herbits v. The City of Miami; Case No. 3D15-1039 (Fla. 3d DCA Oct. 2016). Standing, special injury.

Five residents from the City of Miami and two residents from the City of Miami Beach sued the City of Miami and Flagstone Island Gardens, LLC (the “Developer”) for declaratory and injunctive relief in order to stop the Developer’s plans to lease and develop public land on Watson Island for use as a mega-yacht marina, two hotels, over 380,000 square feet of retail and commercial space, and parking facilities.  The trial court dismissed the complaint with prejudice on grounds that the residents lacked standing to bring suit.  The residents appealed the dismissal.  On appeal, the issue was whether the residents had standing to assert five claims against the City and the Developer under provisions within the City of Miami Charter, the Miami-Dade County Citizens' Bill of Rights, and the agreements between the City and the Developer as enacted in City resolutions.

The 3rd DCA upheld the trial court’s ruling that the residents lacked standing to assert claims based on alleged City charter violations (e.g., City failed to lease property to Developer based on fair market value), as their proximity to the property was insufficient to show they would suffer "special injuries" different from injuries to other citizens, and the alleged injuries also had no nexus to the alleged violations.  The residents only had alleged general categories of injury in their complaint such as “diminished public safety, lost or reduced property values, increased environmental risks, loss of public open space, subsidies to the developer, and other harms the City has disregarded.”  These allegations were too general to show that the residents had suffered injury that was different in kind, not merely greater in degree, than other residents throughout the City.  In other words, the charter violations, if proven to be true, affected all voters, taxpayers and citizens of the City in substantially the same way.  That was not enough to establish standing to sue.  Additionally, the residents were neither parties to nor third party beneficiaries of the City's contracts with the Developer, so they had no right to challenge the contracts or to seek their termination.

The 3rd DCA further upheld the trial court’s ruling that the residents failed to state a cause of action under Miami-Dade County’s Citizens’ Bill of Rights, which is part of the County Charter.  The Citizens’ Bill of Rights requires that County and municipal officials and employees be truthful in responding to requests for information from members of the public, and make all public records open for inspection to members of the public.  The residents’ claimed that the City had violated the Citizens' Bill of Rights by failing to timely provide the public with full information regarding the development project, and concealed critical information from the public regarding the project.  The 3rd DCA held that the public’s right to inspection of public records was preempted by the Florida Public Records Act.  The 3rd DCA also held that the residents’ complaint, as a matter of law, did not allege that the City had concealed facts about the development from members of the public.  The facts instead showed that the project was in flux and many items were still being worked out and negotiated between the Developer and the City.  The Court concluded that it would not interfere with a process that was inherently legislative in nature.

2. Village of Key Biscayne v. Department of Environmental Protection; Case No. 3D15-2824 (Fla. 3d DCA Nov. 2016). Standing, adjoining municipality.

The Village of Key Biscayne is an island community that occupies the central portion of Key Biscayne, a barrier island south of Virginia Key.  Access from the mainland to Key Biscayne is limited to a single roadway, the Rickenbacker Causeway, which passes through Virginia Key en route to the Village.  The Miami Marine Stadium, which currently is condemned, is located on Virginia Key along the Rickenbacker Causeway upland of a lagoon known as the Miami Marine Basin, which is an environmentally sensitive area.  The Village owns no property on Virginia Key or any submerged lands surrounding Virginia Key.  The only connection the Village has to Virginia Key is through an interlocal agreement with the Miami-Dade School Board, by which the Village gave $23 million in funding to expand sports fields in exchange for exclusive use of those fields at certain times.

The National Marine Manufacturers Association and the City of Miami sought a five-year environmental resource permit from the Florida Department of Environmental Protection in order to install 830 temporary water slips on Virginia Key at the Miami Marine Stadium site yearly (in February) to facilitate a weekend-long boat show.  The Village filed a Petition for Administrative Hearing in order to challenge FDEP’s issuance of the five-year environmental resource permit.  FDEP dismissed the Village’s Petition for lack of standing under the Florida Administrative Procedure Act, and entered a final order issuing the permit.  The Village thereafter appealed.

On appeal, the 3rd DCA affirmed the dismissal, holding that the Village did not have standing to challenge the permit. The court held that a municipality like the Village must demonstrate substantial interests that exceed the general interests of its citizens and that are within the zone of interest of the proposed environmental permit.  Specifically, to satisfy standing, the Village would need to demonstrate that (1) it will suffer injury-in-fact which is of sufficient immediacy to entitle it to hearing; and (2) the injury is of a type or nature which the administrative proceeding is designed to protect (zone of interest).  The Village’s allegations failed to demonstrate actual injury-in-fact or a real and immediate threat of direct harm.  The Village’s allegations of harm related to its economic investments and contractual obligations for the sports fields.  Economic injury, even if true, is not an interest that the environmental permit hearing process is designed to protect.  Moreover, the Court held that FDEP is not authorized to deny environmental permits based on alleged noncompliance with local land use restrictions and comprehensive plan requirements.