Opinion
No. 1D19-1851
06-18-2020
EVANS ROWING CLUB, LLC, Petitioner, v. CITY OF JACKSONVILLE, Respondent.
Barry A. Bobek and Lauren E. Bobek of Bobek & Bobek, Jacksonville, for Petitioner. Tiffiny Douglas Pinkstaff and R. Kyle Gavin, Assistant General Counsel, Office of General Counsel, City of Jacksonville, Jacksonville, for Respondent.
Barry A. Bobek and Lauren E. Bobek of Bobek & Bobek, Jacksonville, for Petitioner.
Tiffiny Douglas Pinkstaff and R. Kyle Gavin, Assistant General Counsel, Office of General Counsel, City of Jacksonville, Jacksonville, for Respondent.
Per Curiam.
DENIED .
Wolf, J., concurs with opinion; B.L. Thomas, specially concurs with opinion; and Makar, J., concurs with opinion.
Wolf, J., concurring.
The view expressed in Judge Thomas's concurrence is that adoption of article V, section 21 of the Florida Constitution has somehow affected this court's second-tier review of local government land use decisions. This constitutional section has nothing to do with local government decision making, nor does it affect the scope of either original review by the circuit court or the second level review of local zoning decisions by the appellate courts of this state. The actual terms of the constitutional section exclude local actions. In addition, the common understanding of the terms in the amendment would not have put the voters adopting the constitutional amendment on notice that they were giving the courts more powers over local zoning decisions.
Neither party raised the issue of the legal effect of article V, section 21 of the Florida Constitution at the circuit court level or in front of this court.
Article V, section 21 reads:
In interpreting a state statute or rule , a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule and must interpret such statute or rule de novo.
(Emphasis added.)
Local land use regulations are not state statutes or rules. Review of local land use decisions and regulations are not pursuant to general law. Local governments are not "administrative agencies." The decision being reviewed is not an interpretation of "state statute or rules." The language clearly refers to initial determinations by a court and says nothing about the scope of second-tier review. The language does not mention local government. Nor is there any mention of putting the courts on an equal footing with local government concerning local land use decisions.
The common meaning of the terms used in the new section would have indicated to voters that they were voting on review of state administrative decisions. They clearly would not have known that they were ceding control on land use decisions from local people who are familiar with local conditions to state appellate judges. A state appellate court in Tallahassee should not put themselves on the same footing concerning land use decisions as local officials from Jacksonville. The common meaning of "statute" is a law passed by the Legislature. Section 166.041, Florida Statutes, defines local laws as "ordinances." "Agency" is defined in section 120.52. Section 120.52(11)(c) specifically excludes municipalities and legal entities they create from the definition of agency. Section 120.52(16) defines a rule as an "agency" statement. The meaning of these terms was known at the time the people voted on the constitutional amendment.
Existing law is that the court's review of zoning decisions is extremely restricted. Miami-Dade Cty. v. Omnipoint Holdings , 863 So. 2d 195 (Fla. 2003). The scope of this review was laid out 25 years ago by the Florida Supreme Court in Haines City Community Development v. Heggs , 658 So. 2d 523 (Fla. 1995). As Judge Thomas correctly points out in his opinion, this limited review "is based on the principle that the local decisions on zoning and exceptions are entitled to ‘deference [as] to the agency's technical mastery of its field of expertise, and inquiry narrows as a case proceeds up the judicial ladder.’ Broward Cty. v. G.B.V. Int'l Ltd., 787 So. 2d 838, 843 (Fla. 2001) )."
Nothing in the constitutional amendment or public policy considerations warrants the courts to take a more active role in local land use decisions. We should not consider changing these well settled principles.
B.L. Thomas, J., concurring specially.
I concur only because our standard of review is extremely restricted under binding case law, Miami-Dade Cty. v. Omnipoint Holdings, 863 So. 2d 195, 199 (Fla. 2003), but I think this precedent should be reconsidered by the Florida Supreme Court in light of the electorate's command that courts no longer defer to administrative agencies in interpreting administrative actions "pursuant to general law." Such deference, which is even magnified by the supreme court's creation of the highly deferential standard of review in second-tier certiorari cases, does not pass constitutional muster under article V, section 21 of the Florida Constitution. I would certify a question addressing this important issue.
"In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule , and must instead interpret such statute or rule de novo." (Emphasis added).
In land-use cases, the hyper-deferential review of second-tier certiorari is based on the principle that the local decisions on zoning and exceptions are entitled to "deference [as] to the agency's technical mastery of its field of expertise, and the inquiry narrows as a case proceeds up the judicial ladder." Broward Cty. v. G.B.V. Int'l Ltd ., 787 So. 2d 838, 843 (Fla. 2001) (emphasis added) (footnotes omitted). The precedent of the supreme court establishing that district courts are powerless to conduct plenary review of local zoning decisions is based on the principle that such decisions are inherently administrative and "technical" in nature and, therefore, the extremely limited review on appeal, solely by second-tier certiorari, must respect that administrative competence:
This Court has deferred to the findings of an agency fact-finder in the context of zoning and policy determinations, as the agency fact-finder in theory has the requisite experience, skill, and perspective to adequately adjudicate specialized proceedings . See Dusseau , 794 So. 2d at 1276. In the spirit of deferring
Dusseau v. Metro. Dade Cty. Bd. of Cty. Comm'rs , 794 So. 2d 1270, 1276 (Fla. 2001).
to the agency fact-finder in some special cases , this Court has further concluded that when determining whether the administrative decision was founded on competent, substantial evidence, the circuit court may only look for facts in the record that support the agency fact-finder's conclusions. See, e. g., G.B.V. Int'l , 787 So. 2d at 845 (concerning review of a zoning decision) ; Dusseau , 794 So. 2d at 1275–76 (also zoning); Florida Power & Light Co. v. City of Dania , 761 So. 2d 1089, 1093 (Fla. 2000) (also zoning); Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd. of Appeals , 541 So. 2d 106, 108 (Fla. 1989) (also zoning); De Groot v. Sheffield , 95 So. 2d 912, 916 (Fla. 1957) (concerning removal of an employee of the Duval County School Board).
....
The substance of cases that involve special issues of zoning or policy decisions greatly differ from those that involve license suspensions for DUI. A court conducting section 322.2615 first-tier certiorari review faces constitutional questions that do not normally arise in other administrative review settings .
Broward Cty. v. G.B.V. Int'l, Ltd. , 787 So. 2d 838, 845 (Fla. 2001).
Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles , 209 So. 3d 1165, 1171-72 (Fla. 2017) (emphasis added).
The rationale in Wiggins has unquestionably now been repudiated. Administrative decisions by nature are now not entitled to deference, and courts must exercise their independent judgment in reviewing those decisions. This of course does not mean that courts must disregard an administrative agency's expertise and knowledge, but courts cannot allow that expertise and knowledge to become a substitute for judicial review established in Florida's organic law under article V of Florida's Constitution: "The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality." (Emphasis added).
Judge Wolf's concurrence correctly notes that the constitutional amendment adopted in the last election abolishing deference to administrative actions refers to "a state statute or rule[,]" but the concurring opinion incorrectly asserts that article V, section 21 of the Florida Constitution "has nothing to do with local government decision making, nor does it affect the scope of the second level review of local zoning decisions by the appellate courts of this state." Concurring opinion , page 2 . Quite the contrary, the organic law now prohibits deference to local zoning decisions because the constitution itself provides that all zoning decisions must be compliant with general law . "The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law ... Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors." Art. VIII, § 1(f)-(g), Fla. Const. Article VIII, section 1 (i) provides that "Each county ordinance shall be filed with the custodian of state records and shall become effective at such time thereafter as is provided by general law ." (Emphasis added). And in fact, every zoning decision made by local governments carries the imprimatur of state law: "In exercising the ordinance-making powers conferred by s.1, Art. VIII, of the state constitution, counties shall adhere to the procedures prescribed herein. " § 125.66(1), Fla. Stat. (2019) (emphasis added). Any reader who simply searches the term "zoning" in the Florida Statutes in the Florida Legislature's excellent "Online Sunshine" website will receive 176 returns. See Online Sunshine , http://www.leg.state.fl.us/Statutes/index.cfm (last visited May 28, 2020).
Chapter 125, Florida Statutes (2019), provides that the "legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law , this power includes, but is not restricted to, the power to: ... [p]repare and enforce comprehensive plans for the development of the county." § 125.01(g), Fla. Stat. (2019) (emphasis added). Thus, every administrative action of local government involving land-use decisions cannot be inconsistent with state law. This is certainly logical as county governments are subordinate as "subdivisions" of state governments under article VIII, section 1 of the Florida Constitution. Local governments, therefore, cannot be superior to state governments and receive greater deference of their land-use decisions than state administrative actions where such decisions are only possible through compliance with state law. See Art. V, § 21, Fla. Const. (2019). Such a proposition is illogical and inconsistent with organic law establishing local governments as subdivisions of state government and requiring courts to decline to give deference to an administrative decision interpreting state law or state administrative rules.
"The state shall be divided by law into political subdivisions called counties. Counties may be created, abolished or changed by law ." (Emphasis added).
Thus, the concurring opinion would incorrectly disregard the amendment vis-à-vis the supreme court's precedent that a district court of appeal is powerless to conduct plenary review of a local zoning decision denying a property owner's right to a correct ruling of law on the use of waterfront property for a rowing club designed to help young people excel and enjoy nature. But as established above, article V, section 21 now implicitly prohibits deference to local-government zoning decisions, as the supreme court has explicitly recognized, repeatedly, that such decisions are administrative in nature, and under the organic law, those decisions are no longer entitled to deference, certainly not the heightened deference described in Wiggins and cases cited therein.
Constitutionally and logically, local administrative decisions are not entitled to any greater deference than state administrative decisions because the subordinate governmental administrative decision cannot be given greater weight than the superior governmental administrative decision. Therefore, the current deferential and restrictive review of second-tier certiorari cases involving local land use decisions should be replaced with plenary de novo review. See Seminole Cty. Bd. of Cty. Comm'rs v. Long , 422 So. 2d 938, 942 (Fla. 5th DCA 1982) :
Under our constitution, the primary purpose of judicial review of executive action is to prevent arbitrary fact-finding and actions by the executive. Upon judicial review of administrative action in the circuit court, by certiorari or otherwise, the administrative action is entitled to none of the deference due initial judicial action. Such judicial "review" partakes more of the nature of an original judicial proceeding (which it is) than of a classic appeal of a lower judicial tribunal. The constitution gives litigants the right to one appeal from initial judicial action. A right of direct plenary appeal from a circuit court order reviewing administrative action to the district
court of appeal was unquestioned until now. The constitutional provision adopted in 1972 appears to be merely an affirmation and guarantee of prior good law. We prefer this rationale as the basis for appellate review in this case, but if we must justify our review under the Deerfield rationale, then we can be deemed to have treated this appeal as a petition for certiorari under Florida Rule of Appellate Procedure 9.040(c) and to have found that the circuit court applied incorrect rules of law relating to the non-technical nature of pleading administrative complaints and as to the breadth of authority and grounds for an employer, even a governmental employer, to discharge an employee under the case law cited above.
City of Deerfield Beach v. Vaillant , 419 So. 2d 624 (Fla. 1982).
Id. at 942.
The decision in Deerfield disapproves of a decision by the Third District Court of Appeal which allowed review of a circuit court decision reviewing an administrative zoning action by a local government by appeal in the district court:
In the instant case, we have for review a final judgment of the circuit court entered on review of administrative action in an original certiorari proceeding which quashed a zoning resolution passed by a city commission. All agree that this judgment is not directly appealable to the Supreme Court or the circuit court. Under the above constitutional provision (Art. V, s 4(b)(1)) as implemented by Fla. R. App. P. 9.030(b)(1)(A), it follows that such final judgment is appealable as a matter of right to a district court of appeal. This result is supported by an unbroken line of authority in this state. Norman v. Pinellas County , 250 So. 2d 279 (Fla. 2d DCA 1971) ; City of Treasure Island v. Decker , 174 So. 2d 756 (Fla. 2d DCA 1965) ; Board of Adjustment of City of Ft. Lauderdale v. Kremer , 139 So. 2d 448 (Fla. 2d DCA 1962) ; Phillips v. County of Dade , 133 So. 2d 573 (Fla. 3d DCA 1961) ; Wexler v. Ring , 125 So. 2d 883 (Fla. 3d DCA 1961).
It is true, as urged by the appellees, that Fla. R. App. P. 9.030(b)(2)(B) provides that a district court of appeal may review by certiorari "final orders of circuit courts acting in their review capacity." This rule, however, has reference to final orders entered by the circuit court in its appellate review capacity from which no appeal therefrom can be taken. To interpret the rule any broader would mean that a district court of appeal could review by both appeal and certiorari a final judgment similar to the one entered in the instant case. Such would be contrary to the established law that certiorari can never lie where the petitioner has an adequate remedy by appeal. G. W. Development Corp. v. Village of North Palm Beach Zoning Board of Adjustment , 317 So. 2d 828 (Fla. 4th DCA 1975). As an appeal clearly lies to review the final judgment herein, it follows that this court has no certiorari jurisdiction in this case.
United Teachers of Dade v. Save Brickell Ave., Inc. , 378 So. 2d 296, 297 (Fla. 3d DCA 1979), disapproved of by City of Deerfield Beach v. Vaillant , 419 So. 2d 624 (Fla. 1982).
In light of the enactment by the voters of article V, section 21 of the Florida Constitution, prohibiting judicial deference to administrative actions interpreting state law, the supreme court should revisit United Teachers and reestablish the right to appeal local-government zoning decisions in the district courts, which as noted, the supreme court has clearly recognized in Wiggins are administrative decisions. See Wiggins , 209 So. 3d at 1171-72.
Under current law, appellate judges are prohibited from fully reviewing the decision of a circuit court upholding a local administrative decision denying Petitioner's granted-then-revoked permit to operate a rowing club on Julington Creek. Of course, appellate review could be critical to either party in a zoning dispute; if a local government grants a development request in violation of its own zoning requirements, that decision could also be appealed to a district court without the necessity of establishing the near-impossible criteria of second-tier certiorari. Here, however, the property owner could not receive judicial review of the circuit court's ruling on appeal because it was without explanation. Under the current, highly restricted standard of second-tier certiorari review, this Court's ability to conduct a second-tier review is all but futile where it must consider the denial of a writ of certiorari when no written decision was issued in the circuit court explaining the decision, despite Petitioner's request. This is not meant as criticism of the circuit court. This Court often decides cases without written opinion, but in such cases, a party has generally had plenary review of a circuit court's decision. While some decisions without written opinion are appropriate, the rule of law is better served in some cases where a court explains its rationale. Certainly, where a party cannot obtain plenary review in the district court of a decision denying the use of property, a written opinion is preferred.
Were this Court empowered to review the decision by the City of Jacksonville rescinding Petitioner's permitted use for a rowing club, that decision would be properly reversed because it was based on the incorrect interpretation of the text of the applicable law. The City's initial decision granting the permitted use properly applied the correct law of the plain text of the ordinance that specifically approved the use of 2.5 acres in this low-density residential area located on Julington Creek. The City incorrectly relied on its "intent" language in the applicable law to reverse that decision.
I must concur in the decision to deny the writ of certiorari based on our limited standard of review which does not permit this Court to consider the City's incorrect application of its ordinance by plenary de novo review. Therefore, I would certify the following question of great public importance for consideration by the supreme court:
SHOULD THE STANDARD OF REVIEW IN SECOND-TIER CERTIORARI CASES BE REVISED TO PROVIDE PLENARY REVIEW OF LOCAL ADMINISTRATIVE LAND-USE DECISIONS IN LIGHT OF THE CONSTITUTIONAL REQUIREMENT THAT COURTS MUST NOT DEFER TO STATE ADMINISTRATIVE DECISIONS ?
Makar, J., concurring.
I agree with Judge Thomas that the lack of a written order in an important case involving property rights makes appellate review close to ineffectual because we lack the trial judge's reasoning, compelling us "to grope in the dark and to resort to guess-work" in reviewing and deciding the case. Laney v. Holbrook , 150 Fla. 622, 8 So. 2d 465, 468 (1942).
I also agree that we are constrained in this case to deny relief due to boundaries that precedent puts upon appellate judges. On second tier certiorari review, a district court's review of a circuit court's appellate decision is limited and does not allow for granting relief just because legal error has been demonstrated. See Custer Med. Ctr. v. United Auto. Ins. Co. , 62 So. 3d 1086, 1093 (Fla. 2010) ("[A] circuit court appellate decision made according to the forms of law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as to what the law is as applied to facts, is not a departure from the essential requirements of law remediable by certiorari."); Ivey v. Allstate Ins. Co. , 774 So. 2d 679, 683 (Fla. 2000) ("District courts have never been allowed to review decisions, under the guise of certiorari jurisdiction, simply because they are dissatisfied with the result of a decision of a circuit court sitting in its appellate capacity.").
Instead, a departure from the essential requirements of law—a Rashomonic term of art—that amounts to a miscarriage of justice must be shown. See generally Sylvia H. Walbolt & Leah A. Sevi, The "Essential Requirements of the Law" - When Are They Violated? , 85 FLA. B.J. 21, 25 (2011) ("In sum, despite its longevity, and despite repeated efforts by Florida courts to give flesh to the ‘essential requirements of the law’ standard, it remains amorphous. It certainly is not enough to show mere legal error. More is required before legal error will amount to a departure from the essential requirements of law – there must be a grave injustice as a result of that error."). Though appellate courts have been "all over the waterfront" in articulating this concept, Haines City Cmty. Dev. v. Heggs , 658 So. 2d 523, 527 (Fla. 1995), one of the best descriptions is that the "[f]ailure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void," State v. Smith , 118 So. 2d 792, 795 (Fla. 1st DCA 1960). In a case such as this one, where the central legal inquiry is the assessment of a circuit court ruling on the meaning of a local zoning or development code, our supreme court has held that two equivalent standards apply: whether "a violation of a clearly established principle of law result[ed] in a miscarriage of justice" or the circuit court failed to "appl[y] the correct law." Heggs , 658 So. 2d at 529. These high standards, in essence, shield a circuit court's decision against reversal absent an obvious fundamental flaw.
The standards for second tier certiorari review have some similarities to instant "Replay Review" in a major league baseball game where a panel of umpires located at the league's headquarters in New York City are called upon to adjudge the correctness of certain types of on-the-field calls (unlike appellate courts, however, the panel must typically make a decision in real time).* Like the Replay Review panel, we are constrained in what types of decisions can be reviewed and the application of heightened standards. What degree of deference is to be given to the umpire on the field is a vigorously debated topic, see Mitchell N. Berman, Replay , 99 CALIF. L. REV. 1683 (2011) (evaluating what standard of review should be used when instant replay technology is used to review on-field calls), but precedent makes clear that much deference is required on second tier certiorari review. Thus, when called upon by a petitioner to decide whether the umpire made the correct call, our inquiry is not whether the pitch was a ball or strike; instead, we adjudge only whether the umpire's call was itself such a wild pitch that it departed from fundamental legal norms, depriving the losing party of due process and resulting in a miscarriage of justice. Stated another way, we cannot correct "mistake-errors," which are the province of the circuit court, but we can correct "blunder-errors," ones so egregious that a failure of justice would otherwise result. Id. at 1727–28 (discussing correction of "mistake-errors" versus correction of "blunder-errors" in sports officiating). The trial court's affirmance of the interpretation error in this case does not fall in this latter category, i.e., is not a blunder-error, such that our panel lacks the authority to grant relief.
It is anomalous that a single circuit judge has greater authority than a panel of appellate judges, See Dusseau v. Metro. Dade Cty. Bd. of Cty. Comm'rs , 794 So. 2d 1270, 1277–78 (Fla. 2001) ("In light of the far-reaching impact of zoning decisions, we should not continue to sanction a statewide system that allows a single circuit judge to have the identical appellate reviewing authority as a three-judge panel and that also requires the district court of appeal to accord the identical deference to the circuit court's decision regardless of whether the decision was made by a one-judge or three-judge court.") (Pariente, J., concurring), but that is the long-standing nature of certiorari review, which becomes more restrictive as a case moves up the appellate hierarchy. See Heggs , 658 So. 2d at 530 ("As a case travels up the judicial ladder, review should consistently become narrower, not broader."). Just as an umpire cannot add a fourth strike to an out or a fourth out to an inning, we cannot grant relief at this rung of the appellate ladder under the circumstances of this case.
* See Glossary , MLB, http://m.mlb.com/glossary/rules/replay-review (last visited May 20, 2020) ("All reviews are conducted at the Replay Command Center, which is located at Major League Baseball Advanced Media headquarters in New York, by replay officials -- full-time Major League umpires who work shifts at the Replay Command Center in addition to their on-field shifts. Replay officials review all calls subject to replay review and decide whether to change the call on the field, confirm the call on the field or let stand the call on the field due to the lack of clear and convincing evidence. Beginning in the 2017 season, replay officials are expected to render a decision on a replay review within a two-minute time period (some exceptions permitted)."). See also Judge James R. Wolf, Taking A Swing at Appellate Brief Writing , 85 FLA. B.J. 39 (2011) (noting that "Baseball and the law have been connected since Judge Kenesaw Mountain Landis, U.S. district court judge for the Northern District of Illinois, was hired as the first baseball commissioner in 1920.") (footnote omitted).