Filing # 176636554 E-Filed 07/03/2023 01:37:32 PM

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE
COUNTY, FLORIDA

APPELLATE DIVISION

BONNIE D. BOLTON, Case No. 2023-024-AP-01

Petitioner, LT Case No. 2022-014

Decision of Coral Gables City
v. Commission on March 14, 2023
CITY OF CORAL GABLES and
CENTURY CRYSTAL GROUP,
LLC.,

Respondent.

RESPONSE TO PETITION FOR WRIT OF CERTIORARI

Respondent, Century Crystal Group, LLC (Property Owner), files

this response to the Petition for Writ of Certiorari (the Petition) filed

by Bonnie D. Bolton (Petitioner).

INTRODUCTION

After four prior denials and two extensive hearings before the

City of Coral Gables Historic Preservation Board (HPB) and the City

of Coral Gables Commission (Commission), Petitioner now asks this

Court to find that the HPB’s denial of historic designation for property

located at 110 Phoenetia Avenue in Coral Gables (the Property)

warrants the granting of certiorari review. Petitioner does not own the

Property, but nonetheless is determined to find a way—as she asked

the Commission to do—to take the property rights of the Property

Owner and designate the Property historic.

But there is no basis under the law or facts for historic

designation of the Property, as the HPB found and the Commission

confirmed. The HPB reached its decision after receiving a staff report

and staff testimony, hearing extensive comment, and reviewing the

record. As the Commission already found, the HPB’s denial is based

on competent substantial evidence, followed the essential

requirements of the law, and applied all required due process.

Notwithstanding the sound and extensive evidence, Petitioner

asks this Court to reweigh the evidence, which it cannot do. The only

issue before this Court is whether there is competent, substantial

evidence to support the HPB’s denial of historic designation and

whether the minimal requirements of due process were provided to

Petitioner. The answer to both questions is a resounding yes.

Accordingly, the Petition should be denied in all respects.

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 STATEMENT OF THE FACTS

I. THE PROPERTY.

The Property comprises an entire city block and is made up of

ten lots on the site. A:304. The Property, created by members of the

St. James Evangelical Lutheran Church, contains a church, ancillary

buildings, a single-family residence (currently used as a school), a

playground, all of which were constructed in 1946, and “a landscape

feature known as the Garden of Our Lord” (hereinafter, the garden),

which was constructed in 1951. A:588-89, 117. Robert Fitch Smith,

a well-known architect, has been associated with the design of the

Property. A:117.

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A:610.

The garden, located on the northwest corner of the Property,

was intended to be a Biblical garden, which is made up of plants

mentioned in the Bible, along with a boundary wall that contained

memorial plagues and coral rock pond. A:902, 304-05, 314. As early

as 1974, “the [g]arden had started to decline” as there was “the loss

of trees, vandalism, the theft of statutes” and there were “alterations

to the church, including a renovation of the garden.” A:317-18. As of

now, “none of the plants” that would be in a Biblical garden are

located in the garden. A:316-317 (“there’s no real proof of any of this

being Biblical planting”).

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A:605

The Property Owner purchased the Property in November 2021.

II. PETITIONER’S NUMEROUS ATTEMPTS TO FORCE

HISTORICAL DESIGNATION ON THE PROPERTY.

A. The Historical Preservation Officer’s Determination.

A Historic Significance Request was submitted to the City’s

Historic Preservation by the Property Owner as part of the planning

for potential demolition of the Property. A:591-92. Warren Adams, an

officer with the City’s Historic Preservation office, issued a report and

determined that the Property “d[id] not meet the minimum

eligibility criteria for designation as a local historic landmark.”

A:826 (emphasis in original).

One year later, Petitioner filed an application and asked the City

for historic designation of the Property (A:2-272), which application

was denied by Adams as the Property “d[id] not qualify as presented

for listing as a Local Historical Landmark in the Coral Gables Register

of Historic Places.” SA:21-22.1 To reach this conclusion, Adams

1At the HPB hearing, Petitioner represented that the application was
supported by community members and experts, including the Coral
Gables Landmarks Advisory Board. (A:285). As Adams clarified at the
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applied Article 8, Section 8-103 of the City’s Zoning Code, which

states that:

[I]n order to qualify for designation as a local historic

landmark or local historic landmark district, individual
properties must have significant character, interest or
value as part of the historical, cultural, archaeological,
aesthetic, or architectural heritage of the City, state or
nation.

Id.

B. The HPB Hearing.

Following this denial, Petitioner filed a revised application

requesting that the HPB reverse the Historical Preservation Officer’s

determination. A:1-272. Thereafter, the HPB heard Petitioner’s

application at an extensive public hearing. A:273-580. At the hearing,

Petitioner was provided extensive time to present why she believed

the Property warranted historic designation. A:283-302.

City Staff, including Warren Adams and Deena Bell-Llewllyn

(Division Director of Green Space Management for the City),

hearing, Petitioner amended the designation report several times,

and the Landmarks Advisory Board’s recommendation was made on
a prior version, and not the amended report that was submitted to
the HPB. (A:304).
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explained the pertinent Code provisions that applied to the request

for historic designation and presented their findings at the HPB

hearing. A:600-26, 309-28. Adams explained that, per the

application, Petitioner was requesting that the entire Property be

designated as historic. A:310. Adams also explained that, per section

8-103 of the City Code, the Property must have retained its integrity

in order to be designated historic. A:311.

Next, the City Staff explained that while Robert Fitch Smith was

an accomplished architect, with some notable residential projects

that may meet the criteria for historic designation, he was not a

landscape architect and, in fact, utilized the expertise and

professional advice of actual landscape architects for his own

projects. A:613, 311-12. Instead, “[h]e designed buildings.” A:311.

Accordingly, per City Staff, “to state that [Smith] designed this garden

is a massive assumption” as “[t]here’s no proof.” A:313.

As to the Property, City Staff noted that the original plan

submitted to the City in 1951 only referenced a “wall & walk.” A:614;

see also A:312. Such that when comparing the permit drawing versus

the current survey: (i) the pathway is different from the original

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submitted design; (ii) a coral rock pond has been added; (iii) coral

rock walls have been added; (iv) steps have been added; and (v) the

original plan notes “4-0’ wide imitation stone walk scored in 2-0’

squares,” which is not what exists today. A:614-17; see also A:313-

14. These changes caused City Staff to “question[] [the] integrity or

the actual initial design of the [P]roperty.” A:314; see also A:318 (“the

church decided to do alterations . . . [s]o, again, there’s a question

over the integrity of the site”).

As to the trees and shrubs, while the garden originally was

designed as a Biblical garden, reports indicate that the church

accepted plants donated by people, regardless of whether they were

“Biblical plants,” which suggested that there was no planting or

landscape plan. A:618, 314. Even if that were not true, the original

trees and shrubs no longer exist at the Property, dating back to 1974,

and since that time, alterations were made to the Property, including

a renovation of the garden. A:619, 314-315. Bell-Llewellyn testified

that she had visited the Property three times and “didn’t see any

Biblical plants in the garden.” A:316. “What [is there] today is mostly

just our tropical variety of Alexander Palm seedlings, there are few

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Dade Palms, the Canary Island Dade Palm, and one Dade Palm

growing outside, but those are locally available in Homestead” so

“there’s no real proof of any of this being Biblical planting.” A:316-

17.

City Staff also provided comments specific to those submitted

by Petitioner. A:318-22. In particular, City Staff noted that the

Petitioner’s photographs only show the exterior of the Property and

garden, which “raises the question, how many of those contributing

visited the interior of the [g]arden” as they cannot “truly give an

expert and full professional opinion on something that [they] really

haven’t seen.” A:318-19. Also noted was the lack of evidence or proof

to support many of the claims made by Petitioner, including whether

Smith designed the garden and how the Property was to be used.

A:319-21. City Staff also reviewed the City’s original plan which

showed that the intention for the Property was not a park or garden,

but that the Property “was intended for development.” A:321.

City Staff also extensively applied each of the criteria to the

Property and explained why the Property should not be designated

historic. A:322-28.

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 First, as to historical, cultural significance, City Staff explained

that “[w]hile [Smith] was an accomplished architect, he does not rise

to the level of major historic person” and, in fact, “[t]his application

did not list [Smith] under this criteria.” A:322. Also, no historic event

occurred on the Property, the Property did not contribute to the city

in a substantial way, and a Biblical garden “does not exemplify the

historical, cultural, political, economic or social trends of the

community.” A:323-24.

Second, as to architectural significance, City Staff noted that

the application and Petitioner’s experts did not specify a specific

architectural style of the wall and the wall, itself, is “a mixture of

styles from different periods.” A:325. Moreover, “[n]either the wall,

nor the coral rock features, rise to the level of an outstanding work”

and “neither the design detail, materials or craftmanship are of an

outstanding quality.” A:325-26.

Third, as to aesthetic significance, the Property “is related to the

Douglas Section” of the City, “which has been developed according to

the original intent of the Douglas Section, i.e. the construction of

apartment buildings.” A:326-27. Simply put, “[h]istoric plats for this

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section indicate this block was intended to be developed and not

utilized as a garden.” A:327. Further, the garden is not “integral to

the original design intent of Merrick for this block and this location,”

therefore, it does not satisfy any of the criteria required for historic

designation. A:327-28.

The HPB also heard public comment (A:328-405, 419),

including from two prominent local architects, both of whom opined

that the Property was not historic and the application should be

denied. A:330-34, 337-40. During the public comment portion, one

Board member requested that Jorge Hernandez’s letter be read into

the record as part of the public comments. A:328-29. No objection

was made at this request or when Mr. Hernandez read his letter into

the record. A:329, 330-35.

Counsel for the Property Owner also presented to the HPB

noting that the Property Owner does not agree that the Property

should be designated historic. A:405-418. He also noted that the

garden “fell into disrepair and it[] lost its overall aesthetic appearance

and the integrity of it suffered.” A:406. Moreover, the garden

landscape “was installed at random, in an arbitrary manner, by

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members of the church and the community, who were not licensed

landscape architects[.]” A:407. The Property Owner’s expert

“conducted his own independent site investigation, and has also

concluded that none of the plants referenced in the article that’s the

basis of the applicant’s designation report are located there today,

and they would not actually exist, due to the climate in South

Florida.” A:409-10. Instead, “[t]he plants that are there are the plants

you could find in any nursery here locally.” Id. Finally, counsel noted

that it is Petitioner’s burden to show the Property meets the criteria

necessary for designation, and since she cannot, it should be denied.

A:410-413.

After much discussion among the members of the HPB and

follow-up questions to the City Staff, Property Owner’s counsel and

Petitioner (A:426-566), the HPB denied the request to designate the

Property as historic. A:458-59. In the HPB’s resolution, the HPB

denied the request to designate the Property as a local historic

landmark specifically finding that “the subject property does not

meet the criteria set forth in Article 8, Section 8-103 of the Zoning

Code of the City of Coral Gables,” in a vote of 6-2. A:587 (emphasis

12
in original); A:458. Specifically, as incorporated into the HPB’s

resolution (A:586), the HPB stated that it applied the appropriate

criteria and found that the Property “did not meet the minimum

eligibility criteria for designation as a local historic landmark.” A:589-

90.

III. THE CITY COMMISSION DECISION AND RESOLUTION.

Petitioner appealed the HPB’s denial of historic designation for

the Property to the Commission. A:584-85, 889-978, 581-83. At the

Commission hearing, the City Attorney recognized that before the

Commission was an “appeal . . . based on the record of the hearing

before the [HPB] and shall not be a de novo hearing,” meaning “that

no new or additional testimony [would] be taken.” A:892. The only

thing the Commission was to consider was “whether due process was

afforded, whether the [HPB’s] decision was based on competent,

substantial evidence, and whether the essential requirements of the

law were met.” Id.

Petitioner next was provided an opportunity to present her

arguments as to why she believed that the HPB denial warranted

review. A:895-900. The City Staff, represented by Adams and Bell-

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Llewellyn, both of whom presented at the HPB hearing, next provided

their findings and recommendations to the Commission. A:901-11.

During his presentation, Adams explained that the “designation

application gives the legal description for the entire site . . . [s]o, if

this site were to be designated, it’s the entire site that’s on the

application.” A:902-03. Adams concluded with:

Who designed it, who built it? There’s no clear

identification. The original intent of the biblical garden was
never really made. There’s no landscape plan. Fitch wasn’t
the landscape designer. The garden’s been altered. The
plants that were originally planted were the incorrect
species. The garden’s lost its integrity; it has been altered.
We’ve also showed you that this garden was never part of
Merrick’s original plan for the City, and no one can define
the architectural style of the wall.

A:910. Petitioner was permitted a rebuttal where she tacitly conceded

that it “previously . . . was a biblical garden” and asserted, without

addressing the applicable code provision or her own application, that

the Property could be divided to designate only the garden. A:912-14.

Counsel for the Property Owner also presented to the

Commission. A:916-22. The presentation noted that “[t]his is the

fourth time that the City was considering this [P]roperty’s eligibility

for historic designation” and noted the numerous arguments that

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Petitioner has raised during this process in her attempt to designate

the Property. A:916. The Property Owner also recognized that

Petitioner “failed to provide any evidence whatsoever to prove that”

the HPB’s decision was not supported by competent, substantial

evidence. A:917. Succinctly put, the evidence before the HPB was

that:

 “the garden’s landscaping consists of a collection of random

plantings over the years by many different individuals and

parishioners, none of whom have been shown to be licensed

landscape architects”;

 “it’s been clearly established that this garden is

commemorative, which does not rise to the level of significance

required for designation”;

 “the [P]roperty is not associated in any way with the life or

activities of a major historical person or a major historical

event”;

 “neither the wall nor the garden are one of [Smith’s] outstanding

works” and Smith “was not a landscape architect”;

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  “the wall and garden [are] not . . . historically significant or

appropriate for designation”;

 “the wall does not embody an innovative method of

construction, nor does it embody the distinguishing

characteristics of the architecture that was prevalent”; and

 noted that “of the 1,200 historic sites that are listed” in the

Coral Gables registry, only four are parks.

A:917-21.

Again, Petitioner was allowed another opportunity to speak

during which time she objected to the HPB allowing “expert testimony

from [] two architects” because “it’s in violation of Section 15-104(c)”

as “Jorge Hernandez [did] not qualif[y] because he failed to register

five days prior to hearing.” A:922. Counsel for the Property Owner

clarified that neither of the two experts were employed by the

Property Owner and they came as residents to this meeting. A:922.

The City Attorney explained that “if they were . . . appearing on their

own behalf, in their own interest, then they would have not had to

register as lobbyists.” A:923. Accordingly, it was concluded that

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“[t]hey were not paid, and they do not have to register as lobbyists,”

therefore Section 15-104(c) was inapplicable. Id.

Petitioner then asked the Commission to “find a way to make

[the garden] fit the criteria.” A:924. To which counsel for the Property

Owner reminded the Commission that it “need[ed] to apply the

criteria that’s in the Code today, and currently, this particular

property does not qualify” for historic designation. A:925.

Extensive public comments were heard by the Commission.

A:926-54. After which, the Commission members discussed the

HPB’s decision with and questioned City staff and the City Attorney.

A:954-78. Petitioner also was permitted to address certain questions

throughout this process. E.g. A:966, 967, 968, 969, 970. The

Commission unanimously voted to affirm the HPB’s denial of the

application for historic designation and deny Petitioner’s appeal.

A:978.

In the Commission’s resolution, the Commission recognized

that:

 “on August 9, 2021, Historical Preservation Staff

[found] that, after careful research and study of City
records, the Property did meet the minimum eligibility
criteria for designation as a local historic landmark”;
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  “on November 29, 2022, it was determined by the
Historical Preservation Office that after careful research
and study of City records, along with information provided
with the application, the Property still did not qualify for a
Local Historic Landmark designation”;

 “on January 18, 2023, the Appellant prepared and

presented a historical designation report for the Property
to the Historic Preservation Board for consideration,
during its regular meeting and the Historic Preservation
Board denied the request for historic designation of the
Property as a local historic landmark (6-2, one member
absent), based on the criteria in Article 8, Section 8-103 of
the Coral Gables Zoning Code, finding that the Property is
not historically significant because it does not meet any of
the criteria for designation”; and

 “after reviewing the record and decision of the

Historic Preservation Board, and after having given an
opportunity for interested parties to be heard, the City
Commission finds that the decision of the Historic
Preservation Board, to not designate the Property a local
landmark, was based on competent substantial evidence,
that due process was properly afforded to all interested
parties, and that the essential requirements of law were
met, specifically, that the Historic Preservation Board
appropriately applied the designation criteria.”

A:581-82. Accordingly, the Commission denied “the appeal of the

Historic Preservation Board’s decision to not designate the Property

a local historic landmark.” A:582.

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 SUMMARY OF ARGUMENT

Petitioner’s overarching argument is that she simply disagrees

with the denial of historic designation for the Property. A review of

the record establishes that the HPB’s denial is supported by

competent substantial evidence, that was determined by applying the

essential requirements of the law, and that the requirements of due

process were satisfied in reaching that decision.

Instead of directly addressing the standard of review, Petitioner

asks this Court to reweigh the evidence—something that it cannot

do—because she believes the HPB should have granted historic

designation. Not only does the law not support such an undertaking

by this Court, but the record does not support such a finding.

The record is clear. The HPB’s decision is supported by

competent, substantial evidence, as the City Commission also found,

and Petitioner was granted all required due process.2 Therefore, there

2 In the Petition, Petitioner did not assert that the essential

requirements of the law were not applied in the HPB’s decision,
therefore, any such issue is waived. Parker-Cyrus v. Justice Admin.
Comm’n, 160 So. 3d 926, 928-29 (Fla. 1st DCA 2015) (citing
McAllister v. Breakers Seville Ass’n, 981 So. 2d 566, 575 (Fla. 4th
19
is no basis to grant certiorari review and the Petition should be

denied.

ARGUMENT

I. STANDARD OF REVIEW.

On certiorari review of a local governmental board’s quasi-

judicial decision, this Court applies a three-part review standard,

inquiring whether the administrative tribunal: (i) accorded due

process of law; (ii) applied the correct law, i.e., whether the essential

requirements of law were observed in the proceedings; and (iii) based

its decision on competent, substantial evidence. E.g., Wiggins v. Fla.

Dep’t of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1170

(Fla. 2017); Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm’rs, 794

So. 2d 1270, 1274 (Fla. 2001); Town of Manalapan v. Gyongyosi, 828

So. 2d 1029, 1032 (Fla. 4th DCA 2002). The Court can neither

reweigh the evidence nor substitute its judgment for that of the local

governmental board, and de novo review is prohibited. Dusseau, 794

DCA 2008)) (declining to reach merits of procedurally barred

arguments that Petitioner failed to raise in original petition).
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So. 2d at 1275-76; Fla. Power & Light Co. v. City of Dania, 761 So. 2d

1089, 1093 (Fla. 1993).

Instead, this Court applies an exacting—and constrained—

review standard to the evidence presented:

[T]he “competent substantial evidence” standard cannot

be used by a reviewing court as a mechanism for exerting
covert control over the policy determinations and factual
findings of the local agency. Rather, this standard requires
the reviewing court to defer to the agency’s superior
technical expertise and special vantage point in such
matters. The issue before the court is not whether the
agency’s decision is the “best” decision or the “right”
decision or even a “wise” decision, for these are technical
and policy-based determinations properly within the
purview of the agency. The circuit court has no training or
experience—and is inherently unsuited—to sit as a roving
“super agency” with plenary oversight in such matters.

Dusseau, 794 So. 2d at 1275-76; accord Miami-Dade County v.

Torbert, 69 So. 3d 970, 974 (Fla. 3d DCA 2011). “As long as the record

contains competent substantial evidence to support the agency’s

decision, the decision is presumed lawful,” and the Court’s “job is

ended.” Dusseau, 794 So. 2d at 1276.

II. THE HPB’S DENIAL OF HISTORIC DESIGNATION IS

SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE.

Ignoring this Court’s limited review, the Petition argues at

length that the record “contains substantial competent evidence that

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the criteria for designation . . . were met,” Petition at 14-15, and in

doing so disregards any evidence—let alone, the competent,

substantial evidence on which the HPB based its denial. Petitioner

exclusively quotes her own experts, as evidence of competent

substantial evidence and ignores all other evidence presented to the

HPB, to conclude that her expert’s statements were “not refuted with

any record evidence.” Petition at 17-22. Not only is this a gross

misrepresentation of the record before the HPB, but also conflates

this Court’s scope of review. Dusseau, 794 So. 2d at 1276 (“[e]vidence

contrary to the agency’s decision is outside the scope of the inquiry

at this point, for the reviewing court above all cannot reweigh the

‘pros and cons’ of conflicting evidence” as “contrary evidence . . . is

irrelevant to the lawfulness of the decision”). The competent,

substantial evidence supports the HPB’s denial of historic

designation such that this Court should deny the Petition.

A. The Property Lacks the Historical, Cultural

Significance Required for Historic Designation.

Petitioner fails to address this criterion and instead solely

recites her experts’ curriculum vitae. Petition at 15-16. In doing so,

Petitioner provides no actual evidence that the HPB did not rely on
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competent, substantial evidence in its denial. This alone requires a

denial of the Petition.

Even if that were not true, the record establishes that the HPB

relied on competent, substantial evidence when it found that the

Property is not of historical, cultural significance, as required by the

code, for designation. A:322-323. During the HPB hearing, Historic

Preservation Officer Adams explained that the Property must be of

“historical cultural significance,” which criterion can be satisfied in a

number of ways—none of which Petitioner addresses—but that the

Property does not satisfy.

First, “one is associated in a significant way with the lives or

activities of a major historic person important in the past.” A:322.

Adams acknowledged Smith “was an accomplished architect” but

that “he did not rise to the level of major historic person important in

the past.” Id. In fact, Petitioner “did not list [Smith] under this criteria,”

in her application, likely because “it would be incredibly rare to list

an architect under this criteria.” Id. (emphasis added). There also was

testimony presented to the HPB that there was no evidence that

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Smith actually designed the garden (A:402-03), but even if he did,

that he designed it alone does not warrant designation.

Second, if “a historic event with significant effect upon the

community, city, state or nation” occurred on the Property. A:323,

590. Once again, Petitioner failed to address this in the application.

Id. This is because “no historic event of a significant effect upon the

community, state or nation is known to have taken place at this site.”

Id.

Third, if the Property “exemplifies the historical, cultural,

political, economic or social trends of the community.” A:323, 590.

Adams explained that “[a] Biblical garden does not exemplify the

historical, cultural, political, economic or social trends of the

community” as the Property is located in an area that “clearly [was]

meant to be a hub of activity” and the City “encouraged its form of

development.” Id. Such that, “the historical, cultural, political,

economic and social trend in this community was the construction

of garden apartments at that time.” A:323-24.

Finally, Adams addressed whether the Property was “associated

in a significant way with a past or continuing institution which has

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contributed substantially to the life of the city.” A:324, 590. The

application did “not provide sufficient information on this criterion”

and instead noted what the Property has including a church and

school. Id. And, while the church and schools may have “contributed

to the city in some way, [that] doesn’t mean they’re eligible for

designation.” Id.; Diocese of Newton Melkite Church v. City of Miami,

No. 13-325 AP, 2014 WL 12970299, at *4 (Fla. 11th Jud. Cir. Ct. Sept.

2, 2014) (“properties owned by religious institutions or used for

religious purposes are ordinarily ineligible for historic designation

unless the religious property derives its primary significance from its

architectural or artistic distinction or historical importance”).

Accordingly, the evidence before the HPB competently,

substantially supports the denial of the historic designation

application. City of Hialeah Gardens v. Miami-Dade Charter Found.,

Inc., 857 So. 2d 202, 205 (Fla. 3d DCA 2003) (testimony of

professional staff, when based on “professional experiences and

personal observations, as well as [information contained in an]

application, site plan, and traffic study,” constitutes competent

substantial evidence).

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 B. The Property Lacks the Architectural Significance
Required for Historic Designation.

To address each of the “architectural significance” criteria,

Petitioner simply quotes her expert witnesses and concludes that the

criteria “was not refuted with any record evidence.” Petition at 17-20.

This recitation in no way addresses whether there is competent,

substantial evidence to support the HPB’s denial and completely

ignores the record, which is replete with support for the denial.

1. The architectural style of the Property does not portray

the environment in an era of history.

Petitioner’s argument essentially is because the garden is a

Biblical garden, it necessitates historic designation. Petition at 17.

The competent, substantial evidence does not support that

statement; instead, the evidence establishes: (i) the garden is not a

Biblical garden (if it ever was); and (ii) the garden no longer has

retained its integrity that is required for historic designation.

During the HPB hearing, the City’s Division Director of Green

Space Management in Public Works, Denna Bell-Llewllyn, who is a

licensed landscape architect, a certified arborist and has practiced in

this area for 31 years, and has toured the Property three times, stated

26
she “didn’t see any Biblical plants in the garden.” A:316. Instead, the

plants currently on the Property are “our tropical variety” that “are

locally available in Homestead” such that “there’s no real proof of any

of this being Biblical planting.” A:316-17. Instead, as early as 1971,

it was known that “many of the plants were not the Biblical plants”

as the “church [accepted] plants from whoever decided to donate

them” which suggests that there was “no planting or landscape plan.”

A:314-15. And, by 1974, “the [g]arden had started to decline” as there

was “the loss of trees, vandalism, the theft of statutes” and that there

were “alterations to the church, including a renovation of the

garden.” A:317-18. Accordingly, expert evidence was submitted to the

HPB that “none of the plants” that would be in a Biblical garden are

located in the garden now. A:316-317 (“there’s no proof or evidence

of Biblical plants”); SA:15-18.

Also, the garden no longer has retained its integrity, which is

required for historic designation. For example, “[t]he original plan

notes a four-foot wide imitation stone wall, scored in two feet

squares” and “[t]hat’s not what exists.” A:314. “What exists . . . is not

an imitation stone sidewalk in two squares.” Id. Moreover, the design

27
application made “no mention of coral rock benches, no mention of a

coral rock pond, no mention of many of the features that are included

on the site.” A:312; A:313 (there is “no proof that it was designed by

[Smith]”). The evidence before the HPB was that “part of the path was

added when the gate was added in [the] 1970s” and is “different from

the original design.” A:313; A:318 (“article from 1974 notes

alterations to the church, including a renovation of the garden”).

Finally, the HPB heard testimony that the garden “has fallen in

disrepair from the years of lack of maintenance” and that the garden

has been “overtaken with weeds.” A:317.

At best, the garden may have been “intended to be a Biblical

garden and was promoted as a Biblical garden,” but the reality is that

is not what occurred or what is presented over the last 50 years.

A:315.

2. The Property does not embody distinguishing

characteristics of an architectural style, period or
method of construction.

Contrary to Petitioner’s claims that there is no record evidence

to refute her claims that the Property “[e]mbodies th[e] distinguishing

characteristics of an architectural style, or period, or method of

28
construction” (Petition at 18), Adams explained to the HPB that “[t]he

wall [located on the Property] is constructed from concrete block,

topped with a concrete beam supporting two thin keystone sections

to form a triangular cap” and “[t]he wall is faced with stucco, very

common material.” A:325. The columns also “are concrete block, with

vertical supporting rods, faced with keystone and not a carved

ornament, but a case stone ornament on top.” Id. Again, all “common

materials.” Id. Adams noted that the application “does not specify a

specific style in that report” and concluded that “[t]he architectural

style is not a pure form of a style, but, rather, a mixture of styles from

different periods[.]” Id.

3. The Property is not the outstanding work of a

prominent designer or builder.

The HPB was provided competent, substantial evidence that

Smith did not design the garden—at least as it was implemented.

A:403. At best, “to state that [Smith] designed this garden is a

massive assumption” as “[t]here’s no proof.” A:313.3 It is not

3 Adams also addressed each of Petitioner’s expert’s opinion to

establish that there was no proof to support their opinions,
questioned if any of the experts had actually visited the Property and,
29
surprising that Smith did not design the garden as he “was not a

landscape architect,” instead “[h]e designed buildings.” A:311; see

also A:312.

Petitioner cites at length a history of Smith, including referring

to him as “one of the notable of South Florida’s early architects.”

Petition at 18. But what is apparent from this explanation is that

Smith did not specialize in landscape or garden architecture. Petition

at 18-19. All of the Smith work highlighted in the Petition is that of

residences—and tellingly for one of his residences, Smith utilized

someone else to design the landscape. Id. (citing to his work designing

the “landmark residence of Colonel Robert and Nell Jennings

Montgomery, with the landscape by William Lyman Phillips”); see

also Petition at 19 (“[a]mong Smith’s many significant local

commissions are other residences”) (emphasis added); A:312 (noting

that in the houses Smith designed, he “didn’t design the landscape”).

Petitioner provides no evidence that Smith—if he even designed this

garden—was a prominent landscape architect or designer.

specifically the garden, as it is privately owned and locked, and the

opinions do not really address the garden itself. A:318-20.
30
 Finally, even if Smith did design the garden and was a

prominent landscape architect, the only portion of the garden that

was part of the original application was the “walkway and a wall.”

A:312; 614. At the hearing, the HPB heard competent, substantial

evidence that “[n]either the wall, nor the coral rock features, rise to

the level of an outstanding work.” A:325-26. Such that, when you

compare the original design and the current design, one is left

“questioning integrity or the actual initial design of the [P]roperty.”

A:314.

4. The Property does not contain elements of design,

detail, materials or craftmanship of outstanding
quality that represent a significant innovation or
adaptation to the South Florida environment.

In the Petition, Petitioner relies on her expert’s opinion that the

design for the garden wall and, in particular its pilasters, urns and

settings, warrant historic designation. Petition at 20. This statement

is contradicted by Adams’ testimony and other expert opinions.

Specifically, Adams testified that “no church records identifying

burials have been located” that establish the Property was used as a

burial ground and the prior owner, which was a church, “did not

indicate . . . there are any burials there.” A:308. Moreover, the

31
Property Owner “exercised their due diligence” by hiring experts who

determined that while there are “some [burial] memorials” on the

Property, those simply are “memorial garden dedications, or tree

dedications with no urn placements.” A:308; SA:5-14. As to “two urns

containing cremated remains [which] were interment in the garden

wall,” those “have been removed and given to the family members of

the deceased, in accordance with all legal requirements.” A:309;

SA:19-20.

Also, Petitioner relies on the idea that the Property is historic as

it “represents a continuity of quality and design that recall the walls

of Vizcaya’s Farm Village.” Petition at 20. But Petitioner’s claims do

not change the fact that the decision of the HPB was based on

competent, substantial evidence, such that this Court cannot

reweigh other evidence. Dusseau, 794 So. 2d at 1275-76 (“[e]vidence

contrary to the agency’s decision is outside the scope of the inquiry

at this point, for the reviewing court above all cannot reweigh the

‘pros and cons’ of conflicting evidence” as “contrary evidence . . . is

irrelevant to the lawfulness of the decision”).

C. The Property Lacks the Aesthetic Significance

Required for Historic Designation.
32
 1. The Property is not based on a historical, cultural or
architectural motif.

Petitioner initially asserts that there are “less than a handful of

public gardens” in Coral Gables, and the garden “is one of them.”

Petition at 21. This statement is inaccurate as the garden is located

on private property and kept closed off from the public. Moreover,

this in no way addresses whether the Property is of the aesthetic

significance required for historic designation.

Next, Petitioner argues that the Property is part of a “green

corridor” between the “commercial and residential” area of Coral

Gables, and therefore is meant to be a garden. Petition at 21. But the

history of this section of Coral Gables establishes otherwise as

evidence was provided to the HPB that shows that the Property

clearly was intended for development. A:321. “[A] park and a garden

there was not what Merrick intended” as supported by “other

additional plats” “[e]very one of them shows that this site was

intended for development.” Id. The Property “is related to the Douglas

Section, which has been developed according to the original intent of

the Douglas Section, i.e., the construction of apartment buildings.”

33
A:326-27. “Historic plats for this section indicate this block was

intended to be developed and not utilized as a garden.” A:327.

Therefore, “[t]he dominant idea and central theme in [the Section

where the Property is located] is for garden apartments.” Id.

2. The Property is not integral to the plan of Coral Gables

as it is located in a section intended for development.

Per the Code, “[i]n [the] case of a park or landscape feature,” to

be designated historic, the Property must be “integral to the plan of

such neighborhood or city.” A:327. Petitioner’s only attempt to satisfy

this criteria is to assert—without record support—that the Property

is “located in Coral Gables, which was designed to be a garden city

and followed the precepts of the garden city movement.” Petition at

22. But the record is clear, as the HPB heard, that “Merrick,

wholeheartedly incorporated the Garden city precepts of

comprehensive planning with defined areas for different uses . . . as

well as providing an abundance of public facilities.” A:320. On this

Property, “a park was not integral to the original design intent of

Merrick for this block and this location.” A:328.

3. Petitioner’s request for this Court to reweigh the

evidence is not permitted under the law.

34
 Petitioner raises numerous issues as part of her disagreement

with the HPB’s denial of the historic designation application. First,

Petitioner argues that the Staff Report “contains no analysis

whatsoever” and asserts that Adams’ testimony “provided no

evidence to refute the evidence provided by” Petitioner. Petition at 22-

23. As set forth supra, that simply is inaccurate as the record

establishes significant analysis undertaken by City Staff, including

Adams and Bell-Llewllyn. A:600-26, 309-28. See City of Hialeah

Gardens, 857 So. 2d at 205 (testimony of professional staff, when

based on “professional experiences and personal observations, as

well as [information contained in an] application, site plan, and traffic

study,” constitutes competent substantial evidence). Thus, the

record establishes that competent substantial evidence was

presented to support the City Commission’s approval. Dusseau, 794

So. 2d at 1275-76 (“[t]he issue before the court is not whether the

agency’s decision is the ‘best’ decision or the ‘right’ decision or even

a ‘wise’ decision,” instead, this Court must review the record to

assess the evidentiary support for the agency’s decision); accord

Town of Manalapan, 828 So. 2d at 1032-33.

35
 Finally, Petitioner argues that the HPB could have designated

the garden alone. Petition at 23-24. Adams addressed this indirectly

during the HPB meeting explaining that the Property is “comprised

of ten lots, but it is one site.” A:304. Accordingly, the HPB heard

competent, substantial evidence that by designating any piece of the

Property, it would be designating the entire Property. A:310. Even if

Petitioner was correct, it is of no matter as the HPB had before it

competent, substantial evidence that the garden itself did not satisfy

the necessary criteria for historic designation. Therefore, the HPB

correctly denied historic designation.

III. THERE IS NO DUE PROCESS VIOLATION.

Petitioner next argues, relying on section 15-104, that the “City

violated its own laws and [Petitioner’s] due process rights by

admitting evidence at the Historic Review Board hearing that was not

timely filed.” Petition at 24. The record clearly establishes no such

due process violation occurred.

Section 15-104(c) provides that:

Submission of evidence. Copies of all documentary

evidence and written summaries of expert testimony to be
presented in a quasi-judicial proceeding shall be
submitted to the City Clerk at least five (5) days prior to
36
 the date of any hearing. In the event that documentary
evidence is proffered at a public hearing which was not
submitted to the City Clerk in accordance with this
subsection, the body conducting the quasi-judicial
proceeding shall, at the request of the City Manager or
other party, grant a reasonable continuance to allow for
an opportunity to review and respond to the evidence
which was not submitted to the City Clerk as required in
this subsection.

At issue here, during the HPB hearing, counsel for the Property

Owner recognized two speakers that had spoken during the public

portion of the meeting—Jorge Hernandez and Richard Heisenbottle.

A:417, 330-34, 337-40. Specifically, counsel noted that the “resumes

[of both] speak for themselves, and if there’s no objections” counsel

requested that the HPB Board “[qualify] them as experts.” A:417.

Counsel also clarified that “these individuals came in, in their own

capacity,” “were not retained by the owner, and they were not

compensated for their time here by the owner.” Id. No objection was

made to this request or statement. A:417-418.

Instead, the record reflects that Petitioner did speak multiple

times after the request was made and did not object or request a

continuance to allow an opportunity to review and respond to the

evidence a required under the applicable code provision. E.g., A:446-

37
47, 448, 450-451, 452-54.4 Accordingly, any such objection is waived

by Petitioner’s inaction during the HPB hearing. Murphy v. Int’l

Robotic Sys., Inc., 766 So. 2d 1010, 1026 (Fla. 2000); accord Phelps

v. Johnson, 113 So. 3d 924, 926 (Fla. 2d DCA 2013)

(“contemporaneous objection requirement prevents an attorney from

sandbagging the court and his opponent” (citation and internal

quotation marks omitted)); First City Sav. Corp. of Tex. v. S&B

Partners, 548 So. 2d 1156, 1158 (Fla. 5th DCA 1989) (refusing to

consider alleged error on certiorari review because petitioner

“‘sandbagged’ the county commission by raising this issue for the

first time in the circuit court certiorari proceeding”).

4 The record also does not support Petitioner’s statement that when
someone—not Petitioner—approached to object, “he was asked to sit
down.” Petition at 25. Moreover, the person actually spoke after Mr.
Hernandez read his letter into the public comments and no objection
was made. A:393-400. Any issue, therefore is waived, because review
“is confined to issues decided adversely to [Petitioner’s] position, or
issues that were preserved with a sufficiently specific objection”
before the administrative tribunal. Clear Channel Commc’ns, Inc. v.
City of N. Bay Vill., 911 So. 2d 188, 189-90 (Fla. 3d DCA 2005); see
also Sarasota County v. Kemper, 746 So. 2d 539, 540-41 (Fla. 2d DCA
1999); Citrus County v. Fla. Rock Indus., Inc., 726 So. 2d 383, 386
(Fla. 5th DCA 1999).
38
 Moreover, Petitioner fails to acknowledge that Mr. Hernandez

read his letter into the record at the HPB hearing without objection,

such that, even if the HPB did not “receive” the letter, they were

provided the information during the public hearing portion of the

meeting. A:330-35. To be clear, no objection was made during the

reading of this letter or following the reading of the letter by Petitioner

(or any other person) even though public comments section of the

meeting was ongoing at this point. A:330-405. And Petitioner spoke

multiple times after the letter was read into the record, as did Mr.

Gillis, the citizen that Petitioner claims (without record support) was

not allowed to object. Again, any due process issue was waived by

Petitioner’s own inaction. Clear Channel Commc’ns, Inc., 911 So. 2d

at 189-90 (Fla. 3d DCA 2005). Instead, the record clearly illustrates

that Petitioner had notice and an opportunity to be heard, which she

chose not to invoke. Chakra 5, Inc. v. City of Miami Beach, 354 So. 3d

1126, 1134 (Fla. 3d DCA 2023) (due process requires only notice and

an opportunity to be heard at a meaningful time and manner)

(citation omitted); Jennings v. Dade County, 589 So. 2d 1337, 1340

(Fla. 3d DCA 1991) (to comport with the “minimal standards of due

39
process” applicable to a quasi-judicial proceeding, the governmental

board must provide parties to that proceeding only with notice and

an opportunity to be heard). The requirements of due process were

satisfied here.

Even if that were not dispositive, the City Attorney explained to

the Commission, when it reviewed the HPB denial, that no due

process violation occurred as Mr. Hernandez and the second person

“appear[ed] on their own behalf, in their own interest, [such that] they

would have not had to register as lobbyists.” A:922-23. Mayor Lago

continued, that “clarif[ies] both issues” as “[t]hey were not paid, and

they do not have to register as lobbyists.” A:923. Once again,

Petitioner did not make any further request, including that she be

permitted to respond to the evidence. Id. Accordingly, the

requirements of due process were fulfilled and Petitioner’s request for

certiorari should be denied.

CONCLUSION

Century requests the Court to deny the Petition in all respects.

40
 Respectfully submitted,

Brigid F. Cech Samole

Florida Bar No. 730440
Bethany J.M. Pandher
Florida Bar No. 1010814
Greenberg Traurig, P.A.
333 Southeast Second Avenue
Suite 4400
Miami, Florida 33131
Telephone: 305.579.0500
Facsimile: 305.579.0717
[email protected]
[email protected]
[email protected]

By: /s/ Brigid F. Cech Samole

Brigid F. Cech Samole

Counsel for Century Crystal Group, LLC

41
 CERTIFICATE OF COMPLIANCE

I hereby certify that this Response was prepared in Bookman

Old Style 14-point and contains 7,393 words, in compliance with

Rule 9.045 and Rule 9.100 of the Florida Rules of Appellate

Procedure.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that, on July 3, 2023, I electronically filed

the foregoing with the Clerk of the Court by using the Florida Courts

E-Filing Portal, which will send an electronic copy of the foregoing to

counsel listed below:

Cristina M. Suarez David J. Winker

Stephanie M. Throckmorton David J. Winker, P.A.
Gus Ceballos 4720 S. LeJeune Road
City of Coral Gables Coral Gables, FL 33146
405 Biltmore Way [email protected]
Coral Gables, FL 33134
[email protected]
[email protected]
[email protected]

Eric A. Hernandez
Hernandez Lee Martinez, LLC
28 West Flagler Street
Suite 600
Miami, FL 33130
[email protected]
By: /s/ Brigid F. Cech Samole
Brigid F. Cech Samole
42