Miami-Dade Property Owner Gains Ground in Code Enforcement Case
The property owner should have been afforded a laches defense in front of a code enforcement hearing officer, a three-judge panel said.
November 21, 2017 at 02:53 PM
6 minute read
A southwest Miami-Dade County property owner who says the county is wrongly requiring him to maintain and clean up a public road will get another code enforcement hearing.
Old Cutler Creek LLC owns about 9.5 acres in a narrow strip of land between Florida's Turnpike and Southwest 107th Avenue and from 216th Street to Old Cutler Road south of Cutler Bay.
The owner has been fighting a county code enforcement citation over maintenance of what he maintains is a public road adjacent to his property for more than two years — and recently gained some ground on a laches claim of an unreasonable delay in enforcement.
A Miami-Dade Circuit Court appellate panel said the county hearing officer who presided over the code citation erred when he failed to allow for a laches defense.
“In this instance, the hearing officer's preclusion of the laches defense … is tantamount to a failure to observe the essential requirements of law,” Judge Antonio Arzola wrote in the Nov. 6 opinion for the three-judge panel. Judges Jose M. Rodriguez and David Miller concurred.
The judges concluded, “The hearing officer did not afford due process, and his findings and conclusions were not based on competent and substantial evidence.”
The county did not return a request for comment by deadline.
Malcolm B. Wiseheart III, the Miami attorney for Old Cutler Creek, said the key now would be to prove the county knew there was an issue on the road long before it cited his client for a code violation.
“The predominant feature of the laches defense is that Miami-Dade County has been waiting too long to enforce this, which has caused legal prejudice to the property owner,” Wiseheart said. “In this case, it has been going on well before the ordinance was enacted since the late '90s. It's a very long time. … Why did they choose not to enforce this, and why all of the sudden are they able to enforce this?”
If Wiseheart and his client can establish the laches defense, the county would be precluded from pursuing the case, and all other issues would become moot, Wiseheart said.
The legal battle dates back to Sept. 18, 2015, when the county cited Old Cutler Creek and Robert M. Oliver III for “placing an article in the public right-of-way without a permit,” according to county records.
Oliver is the registered agent and title manager for Old Cutler Creek, state records show.
The right of way at issue is part of Southwest 107th Avenue between 216th and 220th streets, according to a March 18, 2016, county description filed in court.
In late 2016, the issue boiled over into the courts when Old Cutler Creek sued County Clerk Harvey Ruvin alleging a hearing that was supposed to be scheduled in May never was set, according to the complaint.
Old Cutler Creek appealed a Sept. 12, 2016, county order requiring it to “maintain and clear Miami-Dade County's right of way,” according to Old Cutler Creek's appeal. It also filed a motion for either a rehearing or a written opinion, with the court denying both.
A southwest Miami-Dade County property owner who says the county is wrongly requiring him to maintain and clean up a public road will get another code enforcement hearing.
Old Cutler Creek LLC owns about 9.5 acres in a narrow strip of land between Florida's Turnpike and Southwest 107th Avenue and from 216th Street to Old Cutler Road south of Cutler Bay.
The owner has been fighting a county code enforcement citation over maintenance of what he maintains is a public road adjacent to his property for more than two years — and recently gained some ground on a laches claim of an unreasonable delay in enforcement.
A Miami-Dade Circuit Court appellate panel said the county hearing officer who presided over the code citation erred when he failed to allow for a laches defense.
“In this instance, the hearing officer's preclusion of the laches defense … is tantamount to a failure to observe the essential requirements of law,” Judge
The judges concluded, “The hearing officer did not afford due process, and his findings and conclusions were not based on competent and substantial evidence.”
The county did not return a request for comment by deadline.
Malcolm B. Wiseheart III, the Miami attorney for Old Cutler Creek, said the key now would be to prove the county knew there was an issue on the road long before it cited his client for a code violation.
“The predominant feature of the laches defense is that Miami-Dade County has been waiting too long to enforce this, which has caused legal prejudice to the property owner,” Wiseheart said. “In this case, it has been going on well before the ordinance was enacted since the late '90s. It's a very long time. … Why did they choose not to enforce this, and why all of the sudden are they able to enforce this?”
If Wiseheart and his client can establish the laches defense, the county would be precluded from pursuing the case, and all other issues would become moot, Wiseheart said.
The legal battle dates back to Sept. 18, 2015, when the county cited Old Cutler Creek and Robert M. Oliver III for “placing an article in the public right-of-way without a permit,” according to county records.
Oliver is the registered agent and title manager for Old Cutler Creek, state records show.
The right of way at issue is part of Southwest 107th Avenue between 216th and 220th streets, according to a March 18, 2016, county description filed in court.
In late 2016, the issue boiled over into the courts when Old Cutler Creek sued County Clerk Harvey Ruvin alleging a hearing that was supposed to be scheduled in May never was set, according to the complaint.
Old Cutler Creek appealed a Sept. 12, 2016, county order requiring it to “maintain and clear Miami-Dade County's right of way,” according to Old Cutler Creek's appeal. It also filed a motion for either a rehearing or a written opinion, with the court denying both.
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