Third District Court of Appeal
State of Florida
Opinion filed July 15, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-0562
Lower Tribunal No. 24-7581-CA-01
Miccosukee Tribe of Indians of Florida,
Appellant,
vs.
Miami-Dade County,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Mavel Ruiz, Judge.
Kula & Associates, P.A., and Elliot B. Kula and Elaine D. Walter; Christopher Ajizian, P.A., and Christopher Ajizian; Todd R. Friedman, P.A., and Todd R. Friedman, for appellant.
Geraldine Bonzon-Keenan, Miami-Dade County Attorney, Christopher J. Wahl and Luis M. Reyes and Christian Sanchez Leon, Assistant County Attorneys, for appellee.
Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
LINDSEY, J.
Appellant, The Miccosukee Tribe of Indians of Florida (the “Tribe”),
appeals an order dismissing a declaratory judgment action brought against
Miami-Dade County (“the County”). For the reasons set forth below, we
reverse.
I. BACKGROUND
By way of background, in 1989, the federal government conveyed a
115-acre parcel of land in unincorporated Miami-Dade County (the
“Property”) to the County subject to a deed restriction and reverter that
restricted the Property’s use to correctional purposes. The County never
operated the Property for correctional purposes.
In 1998, the Miami-Dade Department of Corrections (“MDCR”) leased
the Property to the State of Florida Department of Children and Families
(“DCF”). DCF constructed and operated a youth treatment facility on the
Property. In 2019, the Miami-Dade County Homeless Trust, an agency and
instrumentality of Miami-Dade County, began planning a project to benefit
special needs people experiencing homelessness (the “Project”).1 The
Homeless Trust recommended the Property as the Projects’ site.
1
Although DCF eventually ceased its operations and returned the Property to the County, if the Homeless Trust were to repurpose the facility for the Project, the County would need the federal government to release the deed restriction.
2
In October 2022, the County Commission therefore adopted a
resolution (the “2022 Resolution”). The 2022 Resolution authorized the
County Mayor to execute a real estate transaction with the federal
government where the federal government would release the deed
restriction and waive its reversionary rights in exchange for the County’s
payment of a sum representing the appraised value of the Property when it
was conveyed to the County. The 2022 Resolution also approved over $11
million in funding, both for the transaction and for anticipated facility
improvements in furtherance of the Project.
Thereafter, the Homeless Trust sought guidance from the County’s
Assistant Director of Planning for the County’s Department of Regulatory and
Economic Resources regarding the County’s Comprehensive Development
Master Plan (“CDMP”) 2 and any applicable zoning process. The County’s
Assistant Director issued a letter in December 2022 (the “Planning Letter”)
2
The CDMP is “[a] local comprehensive land use plan,” which “is a statutorily mandated legislative plan to control and direct the use and development of property within [the County.]” Machado v. Musgrove, 519 So. 2d 629, 632– 33 (Fla. 3d DCA 1987) (citing § 163.3167(1), Fla. Stat. (1985)). The plan accomplishes this goal, in relevant part, by setting forth a “future land use plan element,” which contains a “future land use map and goals, policies, and measurable objectives to guide future land use decisions.” Bd. of Cnty. Comm’rs of Brevard Cnty. v. Snyder, 627 So. 2d 469, 473 (Fla. 1993). Once a plan is adopted, “all development orders approved by local governments must be consistent with the adopted local plan.” Id.
3
opining that the Project’s proposed land use “is an institutional use and can
be considered for approval . . . if compatible” and would therefore be
“consistent with the CDMP.” The Planning letter also referred to the
governmental facilities approval process. 3
The Planning Letter advised that the Property was already subject to a
prior governmental facility approval for institutional use—the correctional
facility. Therefore, the Planning letter advised that the Project’s proposed
institutional use would be consistent with, and within the scope of, the prior
approval. The Planning letter also advised that “[w]hen plans are completed
for the renovation of the building, those plans should be submitted . . . for a
review of a ‘administrative approval for a non-substantial change’ to the
existing Government Facility approval.” But the Planning letter concluded
with the following caveat: “This letter is provided in response to your request
for interpreting the provisions of the CDMP and does not constitute a
departmental recommendation on any pending or future requests for
development approval.” (emphasis added).
In 2023, the County Commission adopted another resolution (the
“2023 Resolution”), which approved $2 million in bond funding for facility
improvements in furtherance of the Project and amended the 2022
3
The governmental facilities approval process is set forth in section 33-303(b) of The Code of Miami-Dade County, Florida (“County Code”).
4
Resolution to authorize some of those authorized expenditures to be pulled
from bond funds.
As the Planning Letter explained, construction and operation of the
Project would need to be approved through the governmental facilities
approval process set forth in section 33-303(b) of the County Code. This
process provides an alternative to the County’s zoning approval process
when the County seeks to construct or operate a governmental facility. The
procedure generally requires the County Commission to, among other
things, provide appropriate notice to the public, hold a public hearing, and
then issue a decision. See County Code § 33-303(b)(2).
Additionally, once a governmental facility has been approved under the
public hearing process, subsequent changes to the facility may be approved
administratively, so long as the changes are “non-substantial.” See County
Code § 33-303(b)(6). This administrative approval must be made by the
Director of the Department of Regulatory and Economic Resources after
considering the factors in subsection (b)(6). See id.
In April 2024, while the Project had not yet received a formal
development order, the Tribe filed a one count complaint against the County
for declaratory relief. The Tribe alleged that the County violated Florida law
when it passed certain resolutions permitting the construction of the Project
outside of the County’s Urban Development Boundary (the “UBD”) adjacent
5
to Tribe-owned property. Particularly, the Tribe alleged that the 2022 and
2023 Resolutions violated the County Code and CDMP because they
authorized funding for the construction and operation of the Project without
properly changing the Property’s permitted use.
The County moved to dismiss arguing the Tribe’s claims fell into three
categories, all requiring dismissal: (1) the County used an administrative
approval process, the statutes under which the Tribe sought relief were
facially unapplicable to the administrative process, and the Tribe failed to
allege a special injury to attain standing; (2) a consistency challenge under
section 163.3215 is only allowed for development orders, the complaint
contained no allegations that the County’s actions constituted a development
order, and, even if it did, any challenge to the consistency of a development
order was time-barred; and (3) no due process violation occurred because
the County held a public hearing.
The Tribe responded arguing, as a threshold matter, the trial court was
bound to the four corners rule in determining the motion to dismiss. As such,
the Tribe contended it sought declaratory judgment action on the basis that
the County’s Resolutions were tantamount to a development order. 4
4
Section 163.3164(15), Florida Statutes (2024) defines “development order” as “any order granting, denying, or granting with conditions an application for a development permit.” And section 163.3164(16), Florida Statutes (2024) defines “development permit” as “any building permit, zoning permit,
6
As to the complaint itself, the Tribe argued it contained well-pled
allegations for declaratory relief on the County’s improper use of its
comprehensive plan and code to circumvent the County’s obligations under
Florida law. The Tribe also argued it had standing given its status as an
adjacent landowner and the County’s failure to give it notice required under
section 33-303. 5
After a hearing, on February 28, 2025, the trial court “dismisse[d] the
action, without prejudice, for Plaintiff to re-file once consistency review has
ripened.” Twelve days later, on March 12, 2025, the Tribe moved under
Florida Rule of Civil Procedure 1.140 to extend the time to file its first
amended complaint. The County opposed the extension request, noting the
“consistency review” had not “ripened” so that an amendment could not be
articulated. The trial court denied the Tribe’s request relying on its ruling that
an action could be “re-file[d] once consistency review has ripened.” On
March 28, 2025, the trial court directed the clerk to close the case, clarifying
that its “order of dismissal did not authorize or require an amended pleading
subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.”
5
The Tribe withdrew its allegations related to general bond procedures and voluntarily dismissed those declaratory judgment claims.
7
to be filed at this time, [the Tribe’s] Motion must be denied.” On March 31,
2025, this timely appeal followed.
II. ANALYSIS
Florida Rule of Civil Procedure 1.190 provides the right to amend the
Tribe sought: “A party may amend a pleading once as a matter of course at
any time before a responsive pleading is served[.]” See also Sarfaty v. M.S.,
232 So. 3d 1074, 1082 n.12 (Fla. 3d DCA 2017) (discussing the “absolute
right to amend the complaint before a responsive pleading is served”).
Further, the County’s motion to dismiss was not a responsive pleading and
the Tribe had not yet exercised its absolute right to amend it once. See Boca
Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005) (citing Fla. R. Civ. P.
1.100(a)) (“[T]he filing of a motion to dismiss does not terminate a plaintiff’s
absolute right to amend the complaint ‘once as a matter of course.’”); Galvez
v. CIT Bank, 407 So. 3d 522, 524 (Fla. 3d DCA 2025), reh’g denied (Mar.
27, 2025) (quotation omitted) (“[A] motion to dismiss is not a ‘responsive
pleading’ because it is not a ‘pleading’ under the rules.”).
Therefore, we find the trial court did not have discretion to deny the
Tribe’s request to file its first amended complaint. See Grove Isle Ass’n, Inc.
v. Grove Isle Associates, LLLP, 137 So. 3d 1081, 1095 (Fla. 3d DCA 2014)
(quotation omitted) (“[A] trial court does not have discretion to deny leave to
amend on the basis that the complaint is not amendable until (1) the
8
defendant has filed an answer or (2) the plaintiff has already exercised the
right to amend once.”); Bronstein v. Progressive Am. Ins. Co., 338 So. 3d
966, 968 n.2 (Fla. 3d DCA 2022) (citation omitted) (explaining the “right of
plaintiff under rule 1.190(a) to amend complaint once before service of
responsive pleading is automatic and absolute, and trial court has no
discretion to deny such amendment”); see also Solonenko v. Vogue
Properties, LLC, 192 So. 3d 87 (Fla. 4th DCA 2016) (emphasis in original)
(“While appellee argues amendment of the complaint would be futile,
appellant has the right to amend her complaint, even if it appears likely that
the amended complaint would be meritless.”); Williams v. Gaffin Indus.
Services, Inc., 88 So. 3d 1027, 1030 (Fla. 2d DCA 2012) (“[R]ule 1.190(a)
and Boca Burger, Inc. clearly provide that the trial court could not deny
[Appellant’s] request to amend the complaint based on [Appellee’s]
argument that an amendment would have been futile.”). Accordingly, we are
constrained to reverse and remand for proceedings consistent herewith. 6
Reversed and remanded.
6
We express no opinion on the merits of the Tribe’s declaratory relief action or on any of the other issues raised in this appeal.
9