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. 

3d DCA - Petitioners in Cert cases are ENTITLED to meaningful legal review and redress

In Osborn v. Board of County Comm'rs (Monroe), here's the opinion, the 3d wrote one of those short and sweet opinions that you really need to keep around.

The 3d granted cert and quashed a circuit court's opinion in a cert case because the lower court's opinion demonstrated a lack of clarity regarding its role and the standards that it should or could apply. In so doing, the 3d expressed an expansive view of the rights of a petitioner to have meaningful review AND an expansive view of the nature of the remedial instructions that the circuit court can provide.

Here's the guts of the opinion, emphasis is mine:

On first-tier certiorari review from an administrative decision, "the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence." City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). The Petitioner is, in effect, entitled to consideration of whether the administrative agency followed its laws and regulations, and whether the agency’s findings are supported by competent substantial evidence. Baker v. Metro. Dade County, 774 So. 2d 14 (Fla. 3d DCA 2001). Thus, at first tier level, the circuit court may correct any errors made below: jurisdictional, procedural or substantive; and judgments may be modified, reversed, remanded with directions, or affirmed. See G-W Dev. Corp. v. Village of N. Palm Beach Zoning Bd. & Adjustment, 317 So. 2d 828, 830-831 (Fla. 4th DCA 1975).

Ok - this decision is CRITICAL for land use practioners who constantly get hosed by local goverment attorneys who emphasis the "limited scope of review" in cert and claim that the 2d tier standard limiting it to addressing a "miscarriage of justice" applies to 1st tier claims.

FIRST - the Petitioner is ENTITLED to consideration of whether the agency followed its laws and regulations and whether the decision is supported by CSE. They forgot the constitution, but we can take it that constitutional issues go along for the ride here. Then, the court may correct ANY ERRORS made below, jurisdictional, procedural or subantive. Not just errors that rise to a miscarriage of justice. Finally, the court may modify, reverse, or remand with instructions - not just remand.

Note that the last line seems to fly in the face of the "just quash" approach that the the Fla. Supremes adopted in GBV. But in that case, the court tried to order that the lower court grant the development order. The third is saying something more limited: the trial court can tell the agency (or board acting quasi-judicially) what needs to be done to correct the error. And note that if the court does this, the lower tribunal violates the law of the case if it does something else on remand.

This is critical because local governments play vile and nasty games on remand. Just look at the Quadrangle case in Orange County.

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