Filtering by Tag: variance
Neither rule 9.100(h) nor rule 1.630 requires the reviewing court to issue a show cause order or to order a response to the petition if the petition does not demonstrate a preliminary basis for relief. See Wingate v. State, Dep’t of Highway Safety & Motor Vehicles, 442 So. 2d 1023 (Fla. 5th DCA 1983)(denying second-tier petition for writ of certiorari even though circuit court sitting in its appellate capacity declined to issue an order to show cause based on its determination that the petitioner failed to state a preliminary basis for relief).
In the instant case, the circuit court denied the Fines’ petition for writ of
certiorari without issuing an order to show cause requiring a response by the
City. This clearly was not error, as our review of the petition filed by the
Fines reflects that no response was necessary as the Fines failed to establish
an "unnecessary hardship," an essential element when seeking a variance. See
Miami-Dade County v. Brennan, 802 So. 2d 1154, 1155 (Fla. 3d DCA 2001).
"‘Unnecessary hardship’ has generally been defined as a non-self created
characteristic of the property in question which renders it virtually impossible
to use the land for the purpose or in the manner for which it is zoned." Id. at
1155 n.2 (Fletcher, J., concurring); see also Maturo v. City of Coral Gables,
619 So. 2d 455, 456 (Fla. 3d DCA 1993)(stating that "a legal hardship will be
found to exist only in those cases where the property is virtually unusable or
incapable of yielding a reasonable return when used pursuant to the applicable
zoning regulations"); Herrera v. City of Miami, 600 So. 2d 561, 562 (Fla.
3d DCA 1992)(holding that a variance may be issued only when no reasonable use
can be made of the property without the variance). As the petition did not
establish the requisite hardship, the circuit court did not fail to apply the
correct law by not requiring the respondent to respond before denying the
On a procedural level, it's terrifying to see Wingate cited in a land use case, because it involved "discretionary" cert review.
Turning from the procedural, yes, in the beautiful but stupid City of Coral Gables, you have to have a barrel tile type roof that's less safe than a metal roof. Why? Because they're authoritarian freaks who would regulate the types of toilet tissue you could put in your house if they ever thought of it. Probably would find that the use of recycled or no-brand tissue would be commercial in nature and have the potential to devalue residential neighborhoods - so you have to use something that costs at least $1.50 per roll.
The Fines should have taken their chances and filed a declaratory action seeking to hold the ordinance standard unreasonable or, perhaps, pre-empted by the provisions of the Florida Building Code. While they may have not suffered an "unnecessary hardship," they certainly have been subject to an arbitrary and unreasonable regulation (well - depending on the panel you pull).
In Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion, the court overturned a circuit court's refusal to quash a variance (though it upheld the court's decision to uphold a major special use permits). In language that clearly holds that the courts SHOULD actively police the decisions of zoning tribunals, the court wrote:
As in numerous prior cases, therefore, including many, like this one, on
“second-tier” review of a circuit court decision, quashal of the variance is
required. On the other hand, by invalidating the variance, we reaffirm
this Court’s solemn promise, which it has steadfastly honored, that
"[t]he law . . . will not and cannot approve a zoning regulation or any governmental
action adversely affecting the rights of others which is based on no more than
the fact that those who support it have the power to work their will." Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387, 394 (Fla. 3d DCA 1980), cert. denied, 386 So. 2d 635 (Fla. 1980).
(internal citations omitted, quotation reformatted to work for the web).
While Allapattah involved the approval of a development over the objections of surrounding neighborhoods, the language applies equally to the denial of a development order at the behest of a complaining public.
The Court went on in a footnote to address the issue of whether the failure to follow the law constituted a “miscarriage of justice” and suggested that ANYTIME the lower tribunal fails to follow the law, a miscarriage has occurred:
The respondents seem to suggest that the simple, clear and direct violation ofMaybe what we're seeing is a reassertion of the proper role of the judiciary after years of allowing local governments to do what they want without effective judicial review, whichever way that decision happens to go.
the law, which we find here without “weighing” or “evaluating” the non-existent
evidence of a hardship, may be justified by claims (a) that the variance may
render the project more aesthetically pleasing; or (b) more economically
rewarding; or (c) that fixing the results of improperly granting the variance
may be expensive or inconvenient; (d) that the City of Miami authorities thought
that the variance was generally a good idea; or (e) that the violation was, in the broad scheme of things, too minor to warrant our attention. Notwithstanding any or all of this, it is the unshirkable obligation of the courts, on whatever “tier” of consideration, “to say what the law is” and to effect that judgment. Failing to do so in this case would create both a direct conflict with these decisions, and an unjustified approval of the obvious failure of the circuit court to apply the correct law and of the resulting “miscarriage of justice” which occurred below.