       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 21, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2407
                         Lower Tribunal No. 13-22609
                             ________________


               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.

                                                           4
                                      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:




                                           5
      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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