Filtering by Tag: certiorari
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).
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)
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)
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.
Dougherty v. City of
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.
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.
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.
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
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.”
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.
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
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.