If you own operate a business, rent to commercial tenants, develop real estate or even just own a parcel containing a single-family home, chances are, you are going to have to seek some sort of regulatory approval from a local government. A zoning exception to sell beer and wine, a variance to increase the size of your driveway or deck, a special exception to include an alternative use in a certain zoning category, a certificate of necessity to operate a recycling facility. These are just a few examples of the “permission” that any of us must obtain from a local government prior to putting our property to use.
As a business or land owner, you may be required to appear before a development review board, a commission sub-committee or a full city council body to obtain your requested approval. This blog will explain the appeal steps you may be required to take when such review boards deny your request, either in whole or in-part. And while the purpose of this blog is to explain the appellate procedures, standards of review and strategies, it also provides guidance on how to best approach your initial efforts to obtain the requisite permission. Examining appellate remedies often provides a road-map on how to best approach your objective from the initial starting line – this blog offers that insight as well as explaining the particularized process of appealing what are known as “quasi-judicial” decisions.
What is a Quasi-Judicial Decision?
There are many types of decisions rendered by local governments. The most common are executive or administrative, legislative, and quasi-judicial. An executive decision occurs when a single government official carries out the law. https://caselaw.findlaw.com/fl-district-court-of-appeal/1885088.html The best example of this is when a city manager or planning director decides within the scope of his or her authority – such as denying a right-of-way permit. Most executive decisions do not require any type of hearing and are considered ministerial in nature.
Legislative decisions are most often made by a board or commission and involve changing existing law, formulating law and policy, issuing resolutions and other such decrees that apply to all that are subject to the local government’s jurisdiction. https://caselaw.findlaw.com/fl-supreme-court/1495758.html An example of a legislative decision is most often seen when a commission or council enacts or amends an ordinance. For instance, when a commission adopts a city-wide leash law for domestic pets – that is a legislative decision.
The third-most common type of decision rendered by a local government is known as a quasi-judicial decision. This is when a board or commission applies the law to a set of specific facts. https://law.justia.com/cases/florida/supreme-court/1957/95-so-2d-912-0.html The board considers and evaluates certain facts and information and then investigates and determines how the applicable ordinance or law applies to the information provided. As we will discuss, this decision is subject to certain procedural and substantive thresholds that involve due process, standards of review, and evidentiary considerations. The most frequent type of quasi-judicial decision, as mentioned above, involves taking an application for a certain type of land use request, applying it to the zoning code, and deciding whether the requested use is consistent with the code. Variances, waivers, zoning exceptions, site plans, development orders, and rezoning are all specific examples of quasi-judicial decisions:
Before we get into the details of filing a petition for certiorari review, let’s examine some unique characteristics of this appellate process. Certiorari has limited review standards – meaning the review is NOT de novo or “starting anew”. https://caselaw.findlaw.com/fl-district-court-of-appeal/1399003.html https://law.justia.com/cases/florida/supreme-court/1993/79720-0.html There is no exchange of discovery, depositions, mediation or trial in a certiorari proceeding. https://caselaw.findlaw.com/fl-district-court-of-appeal/1066886.html The circuit court sits in its appellate capacity, rather than its more usual trial court capacity, and is limited to the record on appeal and the briefs filed. The circuit court has no jurisdiction to make factual findings or enter a judgment on the merits of the underlying controversy. https://casetext.com/case/evergreen-v-charlotte-cty-bd Further, the circuit court may not enter injunctions or damages. https://caselaw.findlaw.com/fl-district-court-of-appeal/1237091.html
Petition for Writ of Certiorari
So, back to the original issue – what happens if a local government board denies your request for a variance or zoning exception? What are your remedies and how to you go about appealing such a decision?
A Petition for Writ of Certiorari is the only proper mechanism for an appeal of a local government’s quasi-judicial decision. https://casetext.com/case/hirt-v-polk-cty-bd-of-cty-comrs Of course, there are always exceptions to a rule, and in this case certiorari review is not applicable to appeals pursuant to the Administrative Procedures Act as set forth in Chapter 120, Florida Statutes. Certiorari review also does not apply to comprehensive plan challenges, code enforcement decisions or differing methods of review as required by Florida Law. https://caselaw.findlaw.com/fl-district-court-of-appeal/1621306.html Briefly (but described more fully below), a Petition for Writ of Certiorari essentially asks the Circuit Court, in its appellate capacity, to review the sufficiency and legality of the underlying local government action. This is what is known as “first-tier” certiorari review.
Procedurally, the Florida Rules of Appellate Procedure apply to first-tier certiorari review. There is a strict 30-day deadline to file a petition. This is a jurisdictional threshold that will prevent any review if not complied with. https://caselaw.findlaw.com/fl-district-court-of-appeal/1521401.html Once the local government decision is “rendered” – meaning adoption of the minutes of the meeting in which the underlying decision was made or execution of an order or permit, the 30-day clock commences. Additionally, not only is the petition due within 30 days, but so is the complete record. The petitioner bears the burden of ensuring the complete record is filed with the petition, including transcripts of any proceedings held below and all evidence that was presented. The petition and appendix must comply with Rule 9.100(g) & (l), in that it must be paginated, bookmarked and searchable. https://caselaw.findlaw.com/fl-district-court-of-appeal/1403816.html
An additional hurdle that must be addressed is that of standing. Standing in quasi-judicial settings is that of special injury differing in kind, not degree. All applicants or authorized agents of applicants for applicable land use decisions have standing because the authorization at issue directly impacts such parties. On the other hand, third parties, such as adjacent owners and citizens must prove standing at the quasi-judicial hearing. Standing cannot be proven for the first time on appeal. https://law.justia.com/cases/florida/supreme-court/1972/41388-0.html This dovetails with the concept that appellate doctrines apply to quasi-judicial hearings. The rule of preservation (in order to appeal an issue, it must have been presented and addressed below), the harm-less error doctrine and the mootness doctrine, all apply on certiorari review. https://www.courtlistener.com/opinion/1831462/miami-dade-county-v-omnipoint-holdings-inc/
Standards of Review
First-tier review by way of certiorari involves three essential questions:
- Was procedural due process afforded?;
- Does the decision below depart from the essential requirements of the law?; and,
- Is the decision supported by competent, substantial evidence?
A negative answer to any one of these questions provides grounds for remand by the circuit court.
In examining procedural due process, we must keep in mind the “quasi” aspect of quasi-judicial hearings and decisions. Being quasi-judicial in nature means, in part, that the rigid guidelines normally associated with judicial hearings, trials and the like are not applied. Procedural due process in quasi-judicial matters is less stringent than in the more familiar judicial context. At its core, procedural due process in quasi-judicial hearings requires fair notice and a meaningful opportunity to be heard. https://caselaw.findlaw.com/fl-district-court-of-appeal/1283777.html
Considering this less-stringent due process standard, it must be pointed out that “participants” (usually members of the public), rather than “parties”, are afforded less due process in quasi-judicial hearings. https://caselaw.findlaw.com/fl-district-court-of-appeal/1530198.html This concept is directly related to standing and the direct injury that an actual party may suffer. However, this does not lessen the potential impact of citizen involvement and citizen testimony as discussed more fully below.
Some common examples of due process violations include not strictly complying with notice requirements (https://www.courtlistener.com/opinion/1109061/city-of-jacksonville-v-huffman/), failure to disclose ex parte communications, preventing parties from presenting witnesses and evidence, an opportunity to cross-examine witnesses, and evidentiary and procedural rules, such as burden of proof (https://www.leagle.com/decision/20031436838so2d59811411).
Essential Requirements of the Law
In acting in its quasi-judicial capacity, a local government must follow the essential requirements of the law. An Allegation that a local government board or commission departed from the essential requirements of the law requires something more than simple legal error. https://www.courtlistener.com/opinion/1744831/combs-v-state/ This appellate allegation also must involve more than merely disagreeing with a local government’s legal interpretation. https://caselaw.findlaw.com/fl-supreme-court/1000023.html A departure from the essential requirements of the law must include “an inherent illegality or irregularity, an abuse of judicial power, or an act of judicial tyranny.” https://law.justia.com/cases/florida/supreme-court/1995/84243-0.html There is no finding of departure if the correct law was applied incorrectly. https://www.courtlistener.com/opinion/1136699/stilson-v-allstate-ins-co/
Some quick examples to illustrate the above:
- If a board or commission relies on factors irrelevant to the consideration of a variance, that likely constitutes a reversible departure, but
- If a board or commission misinterprets a provision or requirement of a land use code, that is likely insufficient to constitute a reversible departure.
Therefore, a petitioner must keep in mind that to successfully argue that a local government has departed from the essential requirements of the law, serious and egregious errors must have taken place. An appellate court will need more than simple mistake or misinterpretation to remand a quasi-judicial decision.
Competent Substantial Evidence
While most petitions for write of certiorari site to an alleged violation of due process and an alleged departure from the essential requirements of the law, almost all of them fundamentally come down to an examination of whether competent substantial evidence is present, in the record, to support the quasi-judicial decision. Competent substantial evidence is that evidence that has a substantial basis in fact from which the fact at issue can be reasonably inferred. https://caselaw.findlaw.com/fl-district-court-of-appeal/1621493.html The reviewing circuit court must determine if there is ANY evidence in the record that supports the underlying local government decision. The circuit court, sitting in its appellate capacity, cannot reweigh the evidence, draw different inferences, or substitute its judgment. https://casetext.com/case/dept-of-highway-safety-v-trimble The law is clear that unsubstantiated opinions and popularity polls carry no weight in a quasi-judicial proceeding. https://caselaw.findlaw.com/fl-district-court-of-appeal/1325804.html Citizen testimony that amounts to nothing more than speculation, fears, or desires to simply maintain the status quo does not rise to the level of competent substantial evidence. https://www.courtlistener.com/opinion/1885107/city-of-apopka-v-orange-county/
However, in examining the role of citizen testimony, courts have found that fact-based citizen testimony is no less competent than that of an expert. So long as the testimony is based on facts and not merely an expression of unsubstantiated or irrelevant opinions, citizen testimony is perfectly permissible, and, as a matter of law, can constitute competent substantial evidence that is legally sufficient to support a quasi-judicial decision. https://www.courtlistener.com/opinion/1135640/dade-county-v-sportacres-devel-group/ Going further, citizen testimony regarding the “aesthetic incompatibility” of a project with a surrounding neighborhood, coupled with drawings, aerial photographs, and site plans, can constitute competent substantial evidence. (Driver v City of Neptune Beach, No. 16-2016-CA-000966, Division:CV-A (Fla. 4th Cir. Ct. Dec. 4, 2017)).
Some examples of competent substantial evidence in a quasi-judicial hearing include:
- The petitioner’s application and its attachments,
- Testimony of sworn witnesses,
- Agency staff recommendations and testimony,
- Agency staff written reports, and
- An underlying planning commission’s recommendations and findings.
Some examples of information not constituting competent substantial evidence are:
- An attorney’s or agent’s statements and arguments,
- Statements by residents and/or neighbors, that are not supported by additional information or that are otherwise conclusory in nature.
Unfortunately, it can be very difficult for a petitioner to identify for an appellate court which evidence meets the standard and which does not. Citizen testimony is most often riddled with mere opinions and subjective objections. For instance, a neighboring property owner claiming that a proposed activity is going to negatively impact its property values is insufficient evidence absent supporting documentation and information such as appraisals or valuation reports. Or a group of citizens claiming that the proposed project will bring increased traffic and congestion problems likely does not rise to competent substantial evidence unless it is accompanied by traffic count reports, thoroughfare capacity analysis or other such data. While such testimony may be compelling and may come in the form of multiple witnesses and petitions, the circuit court must be shown that it is simply not enough to warrant remand. Speaking of which . . .
If an appeal of a quasi-judicial decision is made and a successful argument is presented regarding due process, the essential requirements of the law or competent substantial evidence, what is the remedy? The circuit court cannot order the local government to take any specific action on the land use request at issue – meaning, the local government cannot be forced to issue a variance, development order or zoning exception. The circuit court also cannot even remand the case with any real instructions or directions to the local government. https://casetext.com/case/st-johns-county-v-smith
The circuit court can only “quash” the decision of the local government, thus sending the matter back to where it was before the initial quasi-judicial order or decision was entered. Essentially, this results in a “re-do” of the previously held quasi-judicial process.
On the other hand, if a party loses its first-tier appellate review, it may seek second-tier review to a district court of appeal. This appellate review will have an extremely narrow standard of review. The appellate court will examine whether the circuit court, in its appellate capacity, afforded procedural due process and followed the essential requirements of the law. https://caselaw.findlaw.com/fl-supreme-court/1391087.html This is a very high standard to overcome as a petitioner.
Citizen Opposition in Today’s Age
Before concluding, it is important to address the concept of citizen opposition. If a proposed project is facing significant citizen opposition, the applicant and its team must be very mindful of not only what this can do to any chances of success on appeal but must also be considerate of such opposition on its chances of obtaining the initial quasi-judicial approval. As a reminder, it only takes one substantiated point of fact to constitute competent substantial evidence. Meaning, if an applicant has multiple reports, diagrams, sketches, spreadsheets and other such supporting evidence, a denial can still be rendered and justified if just ONE piece of evidence in opposition is presented and rises to competent substantial evidence.
Such evidentiary odds mean citizen groups can be very empowered in their abilities to oppose and block proposed projects at the local government level. Their burden is just not that significant. Sometimes, this results in a productive dialogue between applicants and citizen groups – dialogue that results in a project modified to account for certain citizen or neighbor concerns. But it can also lead to a complete “hi-jacking” of the quasi-judicial process.
Elected and appointed officials make up local government boards and commissions. They are residents and members of the local community and answer to the voting public and are much more accessible and subject to influence by the very nature of their positions. Organized and vocal citizen opposition can be very compelling to the decision-making process of elected officials. Add the recent phenomenon of social media platforms being used to galvanize opposition, and now an applicant is having to “fight” two battles: comply with often confusing and multi-faceted land use codes and appease nameless, faceless, and often mis-informed (or partially informed) citizens that can attack projects and disseminate (mis)information behind the anonymity of Facebook.
An excellent read on the dynamic between proposed development and citizen opposition is Peter Hendee Brown’s How Developers Think. Design, Profits, and Community. https://www.peterhendeebrown.com/HowRealEstateDevelopersThink.html
Looking back, we can see that the usual judicial formalities and standards do not apply when appealing a quasi-judicial ruling. This means that an applicant seeking local government approval for a land use type request, must ensure that any due process violations have been fully objected to and ruled on and that any opposing competent substantial evidence, even in the form of citizen testimony, must be rebutted to the maximum extent. Even if an applicant presents multiple witnesses supporting its application, if a board is presented with just one opposing witness that provides substantiated testimony, it can justly rule against the applicant. Another important factor that an appealing party must consider, is that the circuit court will not place itself in the role of fact-finder. The circuit court is prohibited, by law, from re-evaluating and re-weighing the evidence that was presented during the quasi-judicial hearing. The circuit court should also limit its judgment of the quasi-judicial body to mistakes that are so egregious, they are considered tyrannical. These limiting standards must be kept in mind by an applicant both on appeal, and in the initial approval seeking effort below.
While less formal than typical judicial settings, quasi-judicial hearings require both applicants and local governments to perform at high levels. These decisions are important and impactful on the community and the businesses that hope to operate and flourish there. Detailed and fact-based evidence, adherence to procedural requirements, and following the strictures of the law are all essential to navigating this process. But if any one of those aspects is faulty, the petition for writ of certiorari is the standard mechanism for obtaining relief.
 Pursuant to In re Amendments to Fla. R. of Civ. P., 131 So. 3d 643, 652 (Fla. 2013), Rule 1.630 no longer applies to certiorari proceedings.