Far Niente, LLC v. City of Key West
209 So. 3d 43
Fla. Dist. Ct. App.2016Background
- Property owners Mark and Kristina Serbinski applied to HARC (Key West) to renovate a historic house at 616 Eaton St., demolish rear additions, add a new attached addition and construct a second residence at the rear with site work and a pool.
- HARC staff reviewed plans, concluded the project complied with applicable historic guidelines (including Secretary of the Interior Standards), and recommended approval; HARC issued certificates of appropriateness for design (July 28, 2015) and demolition (Sept. 29, 2015).
- Several nearby property owners and a former seller (petitioners) appealed both HARC approvals to a city Special Magistrate as permitted by City Code; the Special Magistrate held de novo hearings and affirmed both HARC approvals.
- Petitioners then sought first-tier certiorari review in the Monroe County Circuit Court (appellate division), which denied relief on the merits; petitioners sought second-tier certiorari to this Court.
- Petitioners raised, among other claims, that HARC misapplied the guidelines and that due process was violated because of an alleged “dual role” by the Assistant City Attorney advising both HARC and the Special Magistrate; the court found no dual-role or ex parte communications and declined to disturb the agency’s determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HARC correctly applied the historic guidelines to approve design and demolition | HARC misapplied guidelines and approval was improper | HARC followed guidelines; staff memos and plans show compliance | Court upheld HARC: interpretation and application not clearly erroneous; substantial competent evidence supported decisions |
| Whether petitioners were denied procedural due process due to Assistant City Attorney performing a dual role | Assistant City Attorney impermissibly acted as advisor and advocate, creating unfair advantage | No such dual role occurred; Assistant City Attorney did not advise Special Magistrate or represent City before HARC | Court rejected dual-role claim: no evidence Assistant City Attorney advised the magistrate; Cherry Communications inapposite |
| Whether the Special Magistrate engaged in improper ex parte communications or should have been disqualified for prior representations | Special Magistrate’s prior representations or communications created bias | Magistrate disclosed prior representations; parties waived; magistrate denied any contact with City legal staff | Court found disclosures adequate, waiver accepted, and no record of ex parte communications |
| Whether second-tier certiorari relief is warranted under the narrow Custer standard | Petitioners argued errors warranted relief | City/respondents argued standard is stringent and not met | Court applied Custer/second-tier standards and denied certiorari: no grievous legal error or miscarriage of justice shown |
Key Cases Cited
- Custer Medical Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010) (explains narrow scope and strict standards for second-tier certiorari)
- Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995) (appellate review should not retry matters on the merits)
- BellSouth Tel. v. Johnson, 708 So. 2d 594 (Fla. 1998) (agency interpretations of statutes are entitled to deference)
- Verizon Fla., Inc. v. Jacobs, 810 So. 2d 906 (Fla. 2002) (contemporaneous agency construction stands unless clearly erroneous)
- Cherry Commc'ns, Inc. v. Deason, 652 So. 2d 803 (Fla. 1995) (due process precludes one side having a special advantage via agency legal roles; distinguishable on facts)