Herbits v. City of Miami
207 So. 3d 274
Fla. Dist. Ct. App.2016Background
- City of Miami authorized an RFP (2000) and a 2001 voter referendum approving a long-term lease of ~24.2 upland/submerged acres on Watson Island to Flagstone for a mega‑yacht marina, hotels, retail and related development; no binding ground lease had been executed by 2014.
- City and Flagstone executed a series of agreements to enter into a ground lease and multiple amendments (2002–2010), but those instruments contained open conditions precedent and had not ripened into an operative lease; Flagstone had not taken possession or paid rent by the complaint date.
- An appraisal (2013) valued the annual lease payment at over $7 million, but City‑Flagstone negotiated lower, staggered “construction rent” figures that plaintiffs allege deviated from the referendum and Charter requirements to obtain fair market value.
- Seven nearby residents sued in 2014 challenging City action under City Charter §§29‑A, 29‑B, 29‑C, the Miami‑Dade Citizens’ Bill of Rights, and seeking termination of the City‑Flagstone agreements; complaint was third‑amended and verified with exhibits.
- The trial court dismissed all five counts with prejudice for lack of standing/special injury (Counts I–III), legal insufficiency and preemption by the Public Records Act (Count IV), and lack of contractual privity/beneficiary status (Count V).
- On appeal the Third District affirmed dismissal: it held plaintiffs lacked the “special injury” nexus for the Charter claims, found that the Citizens’ Bill of Rights conferred standing but that Count IV failed on merits/preemption grounds, and held plaintiffs lack rights to challenge private City‑Flagstone agreements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Count I: Did City violate Charter §29‑B by failing to secure fair market value for the lease? | Alleged City renegotiation produced below‑market rent and tied up public land; plaintiffs claim special injuries (traffic, safety, env., property values). | City/Flagstone argue no binding lease exists; alleged harms are general land‑use complaints, not special injuries tied to §29‑B breach. | Dismissed for lack of standing: plaintiffs’ harms are general/zoning‑type and lack nexus to rental/value claim. |
| Count II: Did City violate §29‑C by deviating from the RFP/referendum? | City materially altered the proposed transaction; referendum protections were undermined. | Defendants: agreements remain conditional (no final lease); harms are general and affect public broadly. | Dismissed for lack of special injury/nexus and absence of a binding lease. |
| Count III: Did City violate §29‑A by failing to provide updated public notice/RFP for materially changed terms? | Recasting of deal in 2010–14 required new competitive process; plaintiffs injured by loss of opportunity. | Defendants: no allegation plaintiffs would have responded to a new RFP; alleged injuries stem from development itself, not the notice defect. | Dismissed for failure to plead special injury/nexus despite prima facie §29‑A issues. |
| Count IV: Do plaintiffs have standing and a cause of action under the Miami‑Dade Citizens’ Bill of Rights for truth‑in‑government/public‑records violations? | Citizens’ Bill of Rights grants citizens a cause of action for knowing omission/false info and public records violations; plaintiffs alleged concealment of appraisal and material changes. | Defendants: remedies don’t confer standing beyond general law; federal/state public records law preempts local claims; judiciary should defer to legislative process. | Court found citizens have standing under the Bill of Rights but affirmed dismissal on other grounds: Count IV fails to state a legally sufficient cause (prospective ordinance/land‑use claims) and public‑records aspects are preempted by the Florida Public Records Act. |
| Count V: Can plaintiffs obtain termination of the City‑Flagstone agreements for alleged failure to commence construction by the deadline? | Plaintiffs contend Flagstone breached the agreement by not beginning visible construction by June 2, 2014. | Defendants: plaintiffs are not parties or third‑party beneficiaries and lack contractual standing to challenge or terminate the agreements. | Dismissed with prejudice for lack of privity/third‑party beneficiary status; plaintiffs cannot seek contractual termination. |
Key Cases Cited
- Solares v. City of Miami, 166 So. 3d 887 (Fla. 3d DCA 2015) (taxpayer standing requires special injury or constitutional taxing/spending claim)
- Rickman v. Whitehurst, 74 So. 205 (Fla. 1917) (taxpayer’s equitable relief requires allegation and proof of special injury caused by the unlawful act)
- Henry L. Doherty & Co. v. Joachim, 200 So. 238 (Fla. 1941) (special injury rule for taxpayer standing)
- N. Broward Hosp. Dist. v. Fornes, 476 So. 2d 154 (Fla. 1985) (limits on taxpayer standing)
- Florida Wildlife Fed’n v. State Dep’t of Envtl. Regulation, 390 So. 2d 64 (Fla. 1980) (statute can confer citizen standing to sue)
- Kelner v. City of Miami Beach, 252 So. 2d 870 (Fla. 3d DCA 1971) (older rule excusing special damages where charter notice violations are alleged)
- Renard v. Dade County, 249 So. 2d 500 (Fla. 3d DCA 1971) (standing where plaintiff is in immediate area affected; court notes subsequent limiting authority)
- Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984) (Florida Public Records Act preempts local regulation in the same area)
- Krantzler v. Bd. of Cty. Comm’rs of Dade Cty., 354 So. 2d 126 (Fla. 3d DCA 1978) (Citizens’ Bill of Rights remedies for truth in government claims)