LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Filtering by Tag: certiorari

Circuit Court Correctly Applied Rules of Construction and Did Not Reweigh Evidence in Overturning Town Commission Approval of PUD Amendment: B. Town of Longboat Key et al v. Islandside Property Owners Coalition, LLC et al, 95 So. 3d 1037 (Fla. 2d DCA 2012.

Disclaimer – I was the attorney for the Islandside respondents.
This case involves an extended and torturous set of proceedings to approve a major amendment to a PUD, originally approved in 1976, to allow redevelopment of a small commercial parcel and two recreational parcels with 300 multifamily and hotel units, a spa, restaurant and conference facilities.  The Town amended the zoning code in the middle of the proceedings, and approved the amendment.  When it became obvious that both the amendments and the approval would violate the comprehensive plan, it amended the comprehensive plan and further amended the zoning code to try to “save” the approval retroactively.

The approval was challenged in both declaratory and certiorari actions.  In the certiorari action, the Circuit Court entered an order finding that the approval violated the clear and unambiguous language of zoning code in multiple ways, and that the Town applied an ambiguous provision in a way that was unreasonable and therefore illegal.  In the introduction to the opinion, the Circuit Court noted comments by the Town’s Planning Director, that were adverse to the project. 

The Town and the developer challenged the Circuit Court’s opinion to the Second District, claiming that (1) the Circuit Court reweighed the evidence, and (2) that the Circuit Court misapplied the law by failing to give deference to the Commission’s interpretation of the code and failing to construe the code broadly to favor the developer.

The District Court upheld the Circuit Court.   The District Court rejected the reweighing claim, finding that the Circuit Court’s analysis focused with precision on the specific words in the Code.  The District Court also found not merit in the Town’s claim that the Circuit Court decision was based on improper reweighing of the evidence.  In particular, the District Court rejected the Town’s argument that the Circuit Court’s mere recitation of negative comments in the record as part of the background section of the opinion established that the circuit court reweighed the evidence.  The District Court noted that “ the Town’s argument reaches too far and would encourage a judge to omit any meaningful background information in an order lest he or she be accused of impropriety.  This hardly promotes judicial transparency, sound explanation and rational analysis.”

The District Court also found that, given the language of the Code and the Circuit Court’s analysis, it was not required to defer to the Town’s interpretation.  It found that the Circuit Court had correctly focused on the language of the Code and applied dictionary definitions to interpret undefined terms.  

The District Court rejected the Town’s claim that the previous approval of other development under the same language demonstrated that the language was ambiguous and, therefore, required deference to the Town’s interpretation:
The Town’s longstanding interpretation of its Code cannot tie the circuit court’s hands.  To allow such a result would countenance a shifting sands approach to Code construction that would deny meaningful judicial review of local quasi-judicial decisions.  The meaning of a code would remain in flux.  Such an approach does not promote consistency in the application of law.  As the wording of its laws binds a legislature, the Town is bound by the wording of its Code.  This mounts a bulwark against the Town’s unfettered exercise of power.


This opinion (and practitioners should also review the circuit court opinion, which is available on Fla. L. Weekly Supp) provides ammunition to attorneys on both sides of an issue with a local government – the local zoning code (or comprehensive plan) is not “ambiguous” simply because the local government wants to reinterpret it in a particular case.  Local governments are obligated to apply the plain meaning of their codes, as are the circuit courts.  Failure to do so is a departure from the essential requirements of law. 

County Commission Could Not Grant a Variance that Did Not Meet the Published Criteria: A. Wolk v. Bd. of County Commissioners of Seminole County et al, 38 Fla. L. Weekly D1474a (Fla. 5th DCA July 5, 2013).

This case involved a variance from an ordinance that requires all fences or walls to be set back 25’ from the front/street lot line unless they are less than 3 feet tall or “see through.” 
At issue were portions of a side fence consisting of 6’ stockade fencing.  The applicants/owners originally wanted this fence to extend to 1’ from the road, but after seeing negative staff reports, they used permissible iron fencing along the side.  However, it was not clear that the permitted fencing actually met the 25’ setback.  The Board of Adjustment denied the application, finding that the requested variance did not meet the published criteria.  The owners appealed to the County Commission under a “de novo” appeal provision.  The Commission granted the variance, but also found it unnecessary despite the evidence that showed a 6’ stockade fence within 25’ of the front property line.  The circuit court upheld this decision, finding and upholding the Commission on the basis that it could find that the variance was not necessary, and paradoxically therefore, could be granted.
The Fifth District reversed, finding that the Board of Adjustment applied the right law, and that the County Commission and circuit court did not.  While the District Court did not say so, it clearly viewed the Commission’s action as an impermissible attempt to rewrite the zoning regulation through interpretation.  The Fifth District stated:
We believe that the methodology utilized by the Board and approved by the circuit court of granting a variance in violation of the Code provisions yet concurrently concluding that the variance is not necessary is wrong, and its use needs to stop. Otherwise, others will be encouraged to employ the same or similar methods to work their will without regard to applicable laws and ordinances. Such methods not only disregard valid laws, they deprive others living in the neighborhood and surrounding areas of the valid application of ordinances that ensure the landscape of the neighborhood is kept in conformity with orderly growth and development.

The District Court recognized what the circuit court did not:  that the County Commission was using the variance appeal process to simply reinterpret the code and apply it as it saw fit to individual cases.  The Commission clearly thought that the established setback requirement was somehow unreasonable under the circumstances, so refused to enforce it – and refused to apply the published variance criteria.  The District Court correctly found this process to be the application of the wrong law and a miscarriage of justice.

Motion to Enforce Mandate may be a Way to Enforce a Writ of Certiorari -- Village of Palmetto Bay v. Palmer Trinity, 37 Fla. L. Weekly D1509 (Fla. 3d DCA, July 5, 2012)

Really, I couldn’t make this stuff up if I wanted to.  The School applied for a rezoning for 32 acres of land and an accompanying special exception and some development variances to expand from 600 students to 1400.  After the Village denied the rezoning request, the circuit court denied cert without opinion.  The Third District reversed, finding that the Village’s action was impermissible reverse spot zoning.

On remand, the School modified the conditions of the zoning request and the special exception application to reduce the number of students to 1150, with conditions to expand the enrollment over time, and eliminated the requested variances.  The Village approved the rezoning and, at the same hearing, heard the special exception.   The staff recommended approval of both, but also included a condition that the School record a 30 year covenant against any further requests for additional buildings, students and other relief.  At the hearing, there was no testimony or evidence in support of the covenant condition, but the School’s attorney objected to it.  There was evidence that the 1150 student enrollment was consistent with traffic and other levels of service.  Neighbors and opponents testified for and against the application.  When the testimony closed, the council began deliberating. 

One of the council members made a motion to reduce the number of students to 900.  There was debate, and the special exception resolution was passed, with the 900 student condition and the 30 year covenant requirement.  The School challenged these conditions in a cert petition.
The circuit court, sitting in its appellate capacity on the cert petition, found that neither of the conditions was supported by competent substantial evidence.  In addition, the circuit court found that the 30 year restrictive covenant was essentially illegal, as a moratorium and beyond the legitimate power of zoning.   The circuit court quashed the conditions and remanded.

The Village then made plans to thwart the School and the circuit court.  The School filed a motion to enforce the mandate (to require the Village to act again on the application) and the Village filed a motion for clarification claiming that the Commission could reconsider the entire application and approval because there was no severability clause in the adopting resolution.  The Circuit Court responded to this Motion, instructing that the Village could not rely on the lack of a severability provision to consider the entire application.  The School then filed an emergency motion with the circuit court to enforce the mandate, claiming the Village was planning to violate the circuit court’s mandate. The Village’s attorney filed a statement and a memo advising the Commission not to reopen the evidentiary portion of the hearing, and the circuit court denied the emergency relief.  The Commission then held its hearing on remand and adopted an amended Resolution on the Special Exception.  The Amended Resolution removed the 900 student cap, but it did not reinstate the 1150 student cap or mention any number of students; resulting in a resolution which kept the existing 600 student limit on the expanded campus, with numerous other conditions designed to accommodate the increase in students. 

The School filed a motion to enforce the mandate (rather than a separate cert petition) which was heard by the circuit court with full appellate proceedings.  The circuit court found the Village’s action in direct violation of the order (as clarified) and mandate.  The circuit court rejected legalistic claims from the Village and intervening neighbors that the mandate only quashed the 900 student cap, but did not require the Village to approve the 1150 student application; and acclaim by the neighbors that the School “waived” its right to challenge the refusal to grant the 1150 student approval by challenging the 900 student cap condition.  The circuit court’s order granted the motion to enforce the mandate and remanded to the Village “for proceedings in accordance with this Order and the Court’s Mandate of March 3, 2011.”

On first tier certiorari back to the 3d DCA, the Court upheld the circuit court's order to enforce its mandate.  

Scofflaw City Flaunts the Court’s Lack of Authority on Certiorari Review - Dougherty v City of Miami, 89 So.3d 963 (Fla. 3d DCA 2012)


In its third crack at this case, the Third DCA granted second tier cert and quashed the circuit court’s decision for violating the law of the case and its earlier mandate.  The issue in the original case dealt with the proper version of the code that should have been applied, and the extent of the authority of the City Commission on an administrative appeal.  The circuit court originally held, and the District Court upheld, that under the terms of the City Code, the City Commission (a) could not hear a site plan appeal de novo, but instead had to apply the record below, and (b) had to apply the original code under which an application had been made.

 On remand, the City Commission (via the City Attorney) decided that the Commission had the authority to re-open the hearing and hear new evidence and (believe it or not) to apply the new code – which it utilized to reduce the height of the development approval from 110 to 35 feet.  The developer challenged the decision, the circuit court determined that the City Commission applied the wrong law, and the Third District upheld the circuit court.

On remand a second time, the City Commission again held a de novo hearing and again imposed the 35 foot height limit.  When the developer challenged this “approval” by cert, the circuit court (inexplicably) denied relief with a PCA.  The developer again went back to the District Court, which held that the circuit court departed from the essential requirements of law by failing to enforce the law of the case against the City Commission.  Under the previous orders, the City could not conduct a de novo review, but had to apply appellate principles.  Under the applicable codes, the Zoning Board decision to approve the application at the higher height was supported by competent substantial evidence and legal.  The Commission’s application of a lower height was not only unauthorized, but inconsistent with the earlier decision and mandate. 


Given the limited nature of the Court’s authority under certiorari review – then what?  The District Court stated, “If we were able to direct the City Commission to affirm the Zoning Board’s determination, the result which would have occurred but for the City Commission’s erroneous de novo review almost eight years ago, we would do so.”  Is there really any question that we need statutory provisions for judicial review of local quasi-judicial decisions?

Monroe County v. Cisneros

In Monroe County v. Cisneros the 3d DCA reversed a writ of mandamus regarding code enforcement matters while the same issues were pending appeal.

Like the earlier Dade County and Sunny Isles cases, what we find here is that the circuit courts need more presribed methods for granting stays of local administrative orders that are pending appeal. In code enforcement cases - which are subject to appeal rather than certiorari - there actually is a process under the Fla. Rules of Appellate Procedure, but they are very confusing. If a certiorari action is filed, there is no statutory or rule authority for a stay.

So - again - what we need is legislation providing more effective judicial relief in cases involving local administrative actions -- perhaps the legislature could make quasi-judicial orders of a local administrative body subject to appeal pursuant to 120.68.

3d DCA - Limits on the Use of Estoppel or Laches against Gov't in Code Enforcement

In Monroe County v. Carter the 3d DCA quashed the circuit court's quashal of a code enforcement order. The circuit court found that that the County was barred by laches or estoppel from enforcing the code against a ground floor (below flood elevation) rental unit in Ms. Carter's house. The 3d DCA disagreed and distinguished the earlier Castro decision becuase the unit here had never been permitted.

3d DCA Holds that Law of the Case Precluded City from Reopening Hearing after Quashal

Dougherty v. City of Miami, 23 S.3d 156, 34 Fla. L. Weekly D2047a (Fla. 3d DCA Oct. 7, 2009)

The City Commission granted a special permit. The circuit court upheld the City’s decision. In Dougherty v. City of Miami, the 3d DCA quashed the circuit court decision following an earlier remand. The 3d DCA decision turned on the failure of the City Commission and the circuit court to adhere to the law of the case in the matter.

In earlier proceedings, the City had granted the special permit and the circuit court had reversed, finding that the City Commission’s authority was limited to appellate review of a Zoning Board decision and that the City Code required the City Commission to issue findings of fact. The circuit Court quashed the decision and remanded it to the City Commission to issue a written decision based on the record before the Zoning Board.

On remand, the City Commission conducted another de novo hearing and applied later adopted provisions of the Code. It then approved the permit with an additional condition. On first tier certiorari review, the circuit court held that the City Commission was permitted to conduct a de novo review because the code had changed.

The 3d DCA quashed the circuit court’s denial of certiorari, holding that both the City Commission and the circuit court were bound by the law of the case: The 3d DCA stated “[t]here is no doubt that the 2006 circuit court appellate decision actually decided that the City Commmission had to limit its review to the record received from the Zoning Board and that it was required to render findings of fact in support of its decision.”

A concurring opinion agreed that the law of the case applied and determined the matter, but (citing Snyder and GBV,) disagreed with the original decision. The concurrence is wrong. The City Code required that all agents, agencies or boards issue written findings concerning zoning matters. The concurrence incorrectly assumes that requirement would not apply to the City Commission sitting in a quasi-judicial capacity (whether appellate or de novo). However, where a governing body sits in a quasi-judicial capacity, it is exercising executive or administrative authority delegated to it by code or statute and is bound by those restrictions just as any “inferior” board or agency would be bound.

This is an important case. Even if it does not establish any substantive law, it clearly indicates that even under the restrictions on “quashal” under G.B.V., the circuit court’s order on certiorari review is binding on both the lower tribunal and later review by the court.

The 3d DCA Makes a Good, But Tough Call on “Reverse Spot Zoning”

Miami Dade County v. Valdea, 9 So.3d 17 (Fla. 3d DCA 2009)

In this “reverse spot zoning” case, the circuit court had found that a single family home surrounded by non-residential uses was entitled to receive office zoning. The 3d DCA upheld the circuit court.

The dissent questions the decision because the “group homes” on at least one side of the property are classified as residential uses. The dissent also takes the circuit court and majority opinion to task for not simply looking at whether “competent substantial evidence” supported the denial. The dissent uses the circuit court’s detailed examination of the evidence for “reverse spot zoning” as sufficient in and of itself that the circuit court impermissibly reweighed the evidence.

The problem with the dissent’s position is that if the Board was legally incorrect in denying the rezoning because the evidence established that the denial would be “reverse spot zoning,” the circuit court would be obliged to cite all the evidence demonstrating the Board’s error. Under the dissent’s approach, if there was evidence to support a reason for denial, the circuit court would err in examining evidence proving that the denial was legally impermissible.

The dissent’s position demonstrates that the current standards of certiorari review are simply too lax and too deferential to the local government position to provide any meaningful judicial review.

First DCA Puts Another Nail in the Coffin of Due Process- Findings not Required for Denial of Plat

Alachua Land Investors v. City of Gainesville, 15 S.3d 732, 34 Fla. L Weekly D2163 (Fla. 1st DCA July 17, 2009)

In Alachua Land Investors v. City of Gainesville the 1st DCA held that the City did not violate due process or the essential requirements of the law when it denied a plat without written findings. The Court cited G.B.V. Internat’l and Bd. of County Comm’rs v. Snyder for support. As I have written elsewhere, G.B.V. is improperly cited for this proposition because the language in the decision was purely dicta and the matter was not property before the Court. Similarly, Snyder only dealt with rezoning and did not over-rule other cases holding local quasi-judicial decisions had to have written findings.

The bottom line is that Justice Pariente got it right in her dissent in G.B.V. – as had been consistently determined by the courts previous to Snyder: effective judicial review of a quasi-judicial decision is impossible without written findings. These decisions deny due process to applicants and neighbors alike by allowing local tribunals to make up reasons for denying or approving an application in order to meet the facts in the record.

2d DCA – Building Permit Decisions are NOT Quasi-Judicial and Not Subject to Certiorari Review

City of St. Pete Beach and Ronald Holehouse v. Sowa, 4 So.3d 1245 (Fla. 2d DCA 2009)
The 2d DCA overtuned a circuit court decision that granted certiorari review of a decision of the building official to issue a building permit. The 2d DCA properly found that the building official’s decision was not quasi-judicial and therefore not subject to certiorari review. This should not be news to anyone (see, e.g. Pleasure II Adult Video v. City of Sarasota - directly on point), but attorneys not versed in land use law – and circuit courts – continue to screw it up.
Note – any declaratory action to challenge this decision will/should probably be dismissed for failure to exhaust administrative remedies that are provided by the Florida Building Code.

3d DCA Finds Reverse Spot Zoning to Maintain Stormwater Benefits to Neighbors Violates Essential Requirements of Law

Richard Road Estates v. Miami Dade County Bd of County Commr’s,2 So.3d 1117 (Fla. 3d DCA 2009)

Ok, the 3d DCA continues to confound. Here, a panel of the Court, with Judge Schwartz writing the opinion, overturned the County Commission’s denial of a rezoning from an ag zone district (one per 5 acres) to an estate district (one per acre). The Court found that not only was there “reverse spot zoning” because all the surrounding property was zoned estate, but also found that the record established that the rezoning was denied because the property has, over time, been used by the surround properties as the dumping ground for their stormwater runoff.
The court finds that is an unconstitutional and improper basis to deny a rezoning, and that the circuit court’s acceptance of that rationale resulted in a miscarriage of justice. Probably the best quote in the opinion is one that too many courts should consider. It’s buried in a footnote: “it may be observed that in this case, as probably in every case, what seems (because it is) unfair also turns out to be wrong.”

3d DCA - "Side" Interpretation of Code Not Separately Reveiwable

In City of Sunny Isles Beach v. Publix, the 3d DCA continued its apparent quest to tell the appellate division of Dade County never to side with a landowner or developer on a land development code issue.

The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.

The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.

Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.

The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.

Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.

Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.

2d DCA - Standing for Cert Review Must Be Established at Hearing

In an opinion certain to create further chaos before local commissions, the Second District in City of Ft. Myers v. Splitt et al, held that certain citizens and citizens groups had not established sufficient standing to maintain a certiorari challenge to the approval of a PUD ordinance.

The City approved a PUD. Neighbors and activist groups opposed it at the hearing, then brought both a certiorari challenge and a 163.3215 consistency challenge, which was later dropped.

The City claimed before the circuit court that the various petitioners had not demonstrated facts sufficient to establish standing under Renard v. Dade County for determining whether special damages are present. The Petitioners disagreed. The Circuit court found that the 163.3215 definitions of affected parties governed and ruled for the Petitioners.

The Second DCA found that once the consistency challenge was dropped, the Renard standing test applied, and that the facts in the record could not establish standing per Renard. The Court found:

We reject any suggestion that Mrs. Splitt et al. had standing even under
the more restrictive requirements of Renard and that the circuit court's failure to
apply the correct law therefore was harmless error. Standing under the Renard
special damages test is typically based on some impact on the litigant's
interest as an owner of property
. See, e.g., Kagan v. West, 677 So. 2d 905,
908 (Fla. 4th DCA 1996); Pichette v. City of N. Miami, 642 So. 2d 1165,
1165-66 (Fla. 3d DCA 1994); State ex rel. Gardner v. Sailboat Key, Inc., 306
So. 2d 616, 618 (Fla. 3d DCA 1974). There is no warrant for concluding that
if the circuit court had applied the correct law, it would have determined
that Mrs. Splitt et al. established their standing under the special damages test

Emphasis added.

Two critical problems will be accentuated by this decision as written. First, where a local ordinance does not specify who is a party and who has standing to appeal, a bunch of time will have to be spent establishing standing facts before the local commission. You can just see the issues - neighbors will quite properly start demanding 20-30 minutes so that they can enter sufficient facts to establish standing/party status.

Second, the Second District was clearly led into mis-stating or mis-interpreting the Renard rule as being somehow tied to "ownership" when it clearly was not. The Renard test turns on whether the complaining party can establish an interest that is protected by the ordinance involved, and affected by the decision, to a different extent than the community at large. Renters and frequent users of property (or roads, etc.) affected by a decision could establish such interests. Furthermore, nothing in Renard would prevent associational standing as otherwise established in Florida law.

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