       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 15, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1201
                         Lower Tribunal No. 15-24018
                             ________________


                    Village of Palmetto Bay, Florida,
                                    Appellant,

                                        vs.

                          Alexander School, Inc.,
                                    Appellee.


      An appeal from the Circuit Court for Miami-Dade County, William Thomas,
Judge.

      Lehtinen Schultz Riedi Catalano de la Fuente, PLLC and Dexter W.
Lehtinen and Claudio Riedi, for appellant.

      Bilzin Sumberg Baena Price & Axelrod LLP and José M. Ferrer and Yasmin
Fernandez-Acuna, for appellee.


Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.

     SUAREZ, C.J.

     The Village of Palmetto Bay (the “Village”) appeals a final summary

judgment entered in favor of Alexander Schools, Inc. (“Alexander School”)
finding Section 10.1 of the Village’s Charter to be unconstitutional. We reverse

the trial court’s ruling. We find Section 10.1 is not arbitrary or ambiguous and the

record shows that Alexander School failed to meet the high burden required to

show that the ordinance is unconstitutional.

      Alexander School owns property within the Village on which it operates a

private Montessori school. In 2013 Alexander School wanted to increase the

enrollment at the school and sought permission from the Village to do so.

Consistent with Section 10.1 of its Charter, the Village advised the School that in a

public election of the registered voters within the Village, 75% of the voters within

a radius of 2000 feet from the school would have to approve the increase in

enrollment before the Village would act on the application and hold a public

hearing before the Village Council.1 In an election that occurred in May 2013,

Alexander School failed to obtain approval of 75% of such voters. Therefore, the


1   Section 10.1 states: “The number of enrolled students of any private school
within the Village of Palmetto Bay shall not be increased without prior approval by
a fourth- fifths (4/5) vote of the Village Council. No such approval shall be
adopted by the Village Council until the request to increase enrolled students is
submitted to a vote of Village of Palmetto Bay electors living within a 2,000 foot
radius of the applicant school property by referendum, and 75 percent of the
electors voting approve of such increase in enrolled students. A list of Village of
Palmetto Bay registered voters within the 2,000-foot radius of the school property
shall be prepared by the Village Clerk. Any elector who resides on property or a
portion of property that is within the 2,000-foot radius of the school seeking to
increase the number of its enrolled students shall be eligible to vote in the election
required under this provision. The costs of the election (including reimbursement
to the city for all costs relating to the preparation of the list of eligible electors)
required under this provision shall be borne by the school seeking to increase the
number of its enrolled students.”

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issue never made its way to a hearing before the Village Council. Alexander

School made another attempt to obtain voter approval in April 2015, but again fell

short of the approval of 75% of voters within the 2000 foot radius of its property.

      Alexander School then filed this action challenging the constitutionality of

Section 10.1 of the Charter. Alexander School claimed the ordinance was

unconstitutional because Section 10.1 of the Village Charter, a) deprives it of due

process because the Village is required to exercise its quasi-judicial function of

zoning regulation through public hearing at which fact-based evidence can be

adduced, b) reduces the land regulation function to a popularity contest and

constitutes an improper delegation of the Village’s land-use function to a small

subset of voters, c) violates the Village’s Citizens’ Bill of Rights which purports to

permit any citizen the right to present issues to the Village Council, d) deprives

private schools of due process because the requirements of Section 10.1 are

imposed solely upon a limited group of citizens (private schools) who seek only to

make lawful use of their property, e) is arbitrary and capricious because it has no

rational relationship to the public safety of the surrounding community, and, f)

imposes impossibly high limits to obtain voter approval.

      After engaging in some discovery, Alexander School moved for summary

judgment and the trial court granted its motion finding Section 10.1

unconstitutional “because it is arbitrary and unreasonable, and has no relation to

the public safety, health, morals, comfort or general welfare of the surrounding


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community.” The trial court also found Section 10.1 unconstitutional in that it

“deprives [Alexander School] of its constitutional right to be heard.” The trial

court accepted the argument that because the section does not allow Alexander

School to present its application directly to the commission for a public hearing

without first having a public vote, the school was deprived due process. We find

the trial court erred on both grounds.

         Constitutional challenges to an ordinance are legal questions reviewed de

novo by the appellate courts. Caribbean Conservation Corp. v. Fla. Fish and

Wildlife Conservation Comm’n, 838 So. 2d 492 (Fla. 2003). As stated by this

court in Kuvin v. City of Coral Gables, 62 So. 3d 625, 632 (Fla. 3d DCA 2010)

“[M]unicipal zoning ordinances, which are legislative enactments, are presumed to

be valid and constitutional. … [Z]oning restrictions must be upheld unless they

bear no substantial relation to legitimate societal policies or it can be shown that

the regulations are a mere arbitrary exercise of the municipality’s police power.”

(internal quotations and citations omitted). Moreover, “the burden is upon him

who attacks such regulation to carry the extraordinary burden of both alleging and

proving that it is unreasonable and bears no substantial relation to public health,

safety, morals or general welfare.” Id., emphasis added, internal citations omitted.

See also, Fox v. Town of Bay Harbor Islands, 450 So. 2d 559, 560 (Fla. 3d DCA

1984).




                                         4
      The record in this case shows that Alexander School failed to carry its

“extraordinary burden” of proving that Section 10.1 is unreasonable and bears no

substantial relation to public health, safety, morals or general welfare. In support

of its Motion for Summary Judgment Alexander School relied upon one answer to

one Interrogatory provided by the Village.2 Alexander School also argued that

because Section 10.1 applies only to private schools, but not to allegedly similar

places of “public assembly” such as public or charter schools, theaters and houses

of worship it imposes impermissibly disparate treatment on private schools. The

problem here is that Alexander School made no evidentiary showing that such

locations or entities bear any similarity to its private Montessori school in terms of

usage or that they have or potentially have similar impacts upon public safety.3

Rather, Alexander School appears to simply have presumed such semblance to be

true. In addition, Alexander School made no attempt to provide any evidentiary

showing as to what effect its proposed enrollment increase might have on the



2 [INTERROGATORY] Please explain specifically and with particularity whether
an increase in enrollment by 59 students would affect the public health, safety,
moral or general welfare of the Village’s citizenry any differently if it was
requested by a public school.
       [ANSWER] Assuming hypothetically, that the public school in [the]
interrogatory [] would be located at the same location and have the same physical
layout and the same number of existing students as the hypothetical private school;
No. It would not. However, a municipality cannot regulate public schools the
same way it can regulate private schools.
3 Moreover, Alexander School does not appear to dispute that the Village has no
jurisdiction over public schools, so its attempt to analogize the Village’s reaction to
an increase in enrollment of a hypothetical public school is inapt.
                                            5
public health or safety in the form of increased traffic or other such potential

impacts. Nor did Alexander School attempt to make any showing of the absence

of a rational relationship between the requirements of Section 10.1 of the Village

Charter and public health or safety. Alexander School argues that once it made a

showing of allegedly disparate treatment, the burden shifted to the Village to

demonstrate a material issue of fact as to that issue. We do not agree with that

argument given the inadequate evidence Alexander School provided regarding any

comparability between itself and the other types of entities it attempted to compare

itself to.

       We conclude that Alexander School fell far short of meeting its

“extraordinary burden” of showing that Section 10.1 is “unreasonable and bears no

substantial relation to public health, safety, morals or general welfare.” Kuvin,

supra, 62 So. 3d at 632. Consequently, we reverse the trial court’s finding of

unconstitutionality on that ground.

       We also reverse the trial court’s finding that Section 10.1 of the Charter

deprived Alexander School of its constitutional right to be heard (due process).

Charter provisions such as Section 10.1 that allow some decisions to be made by

voter referendum do not violate due process rights. Florida Land Co. v. City of

Winter Springs, 427 So. 2d 170, 172-74 (Fla. 1983). Likewise pre-conditions to an

application for zoning relief do not deprive a party of due process. Id., Bd. of

Cnty. Comm’rs of Brevard County, Florida v. Snyder, 627 So. 2d 469 (Fla. 1993).


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Reversed and remanded.




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