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. 

A Not So Fine Day in Coral Gables, or The City that Makes Your House Less Safe

In Fine v. City of Coral Gables, Judge Rothenburg (dissenter in the Kuvin case) writes an opinon for the 3d DCA that denies second tier cert where the circuit court had refused to even issue an order to show cause for the Fine's petition for cert review of the city BZA's denial of a variance to permit a metal roof. The 3d DCA found that (despite the fact that cert review is MANDATORY) the Fine's petition did not establish a basis for relief because they could not show or claim "undue hardship." Of course, it's the 3d DCA and they don't recognize that the legislature repealed Florida's version of the standard zoning enabling act in 1985, along with its mandatory "hardship" standard for variances.

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).

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.