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. 

Just what standard applies to 2d tier review of legal issues?

In Lakewood Travel Park v City of Davie, here's the opinion, the Fourth denied a "2d tier" petition for certiorari against a circuit court denial of cert. The case involved a challenge to a site plan approval issued by the City of Davie.

Apparently, the site plan would be accessed through an off-site drive, and the core issue was whether the site/development standards (like buffering, etc.) applied to that drive.

Without getting to the merits of the case either way (there's really not enough detail in the opinion to help), here's the problem language:


Upon a review of the record, we cannot say that the failure of the Town to
require the owner of the property on which the easement was situated to
authorize the development plan (which would involve paving the easement) or the
failure to apply the Town’s environmental buffer requirements to the access road
clearly violated the town code.

So what, exactly, standard of review did the court apply to the legal interpretation of the Code? If the Code was not ambiguous, then the court should have applied a non-deferential review. If the Code was ambiguous, then it should have deferred to the agency's intepretation unless that interpretation is clearly erroneous. (See the Dixon v. Jacksonville case).

I know of no standard that requires a person attacking the issuance of a development order to show that the action "clearly violated" the code. The action either did or did not violate the Code, which is a seperate issue from what the Code does or does not require. The courts' job is to ensure that the legal standards that have been, are, or will be applied are understood and properly intepreted.

The case may or may not have been properly decided. But without a clear recitation of the standard that was applied, why it was applied, and the language in the Code to which it was applied, we cannot tell the answer.

Sigh.

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