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Land Use and Local Government Law and Litigation

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4th DCA Mis-Cites GBV to Overrule Irvine and Most Administrative Law

OK, back on my soapbox.

The Fourth DCA committed a frequent but grave error in Wal-Mart v. Town of Davie when it cited the Florida Supreme Court's opinion in G.B.V. Int'l for the proposition that written findings are not required in quasi-judicial decisions involving zoning and land use.

Fact: there is langauge to that effect in G.B.V. ,and in fact a disagreement among the justices, but it is pure dicta. Fact: No party raised or briefed the issue in that case, or in the Florida National Properties opinion that was released the week before G.B.V. What happened is that Justice Pariente - quite rightly, and consistent with ALL prior cases except Snyder -- raised the absence of written findings as so inhibiting to effective judicial review as to deny due process. The other justices didn't agree - but agreed to refer the matter to the Justice Administration Commission, which in turn found no authority to adopt rules on the matter.

Fact: Prior to Snyder, every reported cases in Florida that can be found (and pretty much every federal case on administrative proceedings) held that written findings were a due process requirement because effective judicial review is impossible without them. See the cases cited by Justice Pariente in G.B.V., but more importantly, see Snyder and Irvine v. Duval County .

Fact: The controlling decision under Florida law for all quasi-judicial decision except rezoning remains Irvine, where the Supreme Court reversed the 1st DCA and approved the dissent below and where the 1st DCA on remand adopted the dissent as its opinion. That dissent established not only the "burden shifting test" for special exceptions (and other quasi-judicial decisions) but clearly and unequivocally reiterated longstanding Florida law that required written findings in all quasi-judicial zoning decisions.

Fact: Snyder declined to apply the Irvine written findings rule to rezonings, but never held that the findings requirement did not apply to any other decision. Nor could it, because that broad issue was not raised below -- the argument briefed and at issue in Snyder was only whether the Irvine rule applied to rezonings, NOT whether it was the right statement of the law.

Law: Under standards of appellate review, dicta and unbriefed issues are NOT precedent and NOT binding on later courts. See. e.g., Schmitt v. State, 590 So.2d 404, 414 ( Fla. 1991). As the Florida Supreme Court stated the rule:
We take this opportunity to expressly state that this Court does not
intentionally overrule itself sub silentio. Where a court encounters an express
holding from this Court on a specific issue and a subsequent contrary dicta
statement on the same specific issue, the court is to apply our express holding
in the former decision until such time as this Court recedes from the express
holding. Where this Court's decisions create this type of disharmony within the case law, the district courts may utilize their authority to certify a question of great
public importance to grant this Court jurisdiction to settle the law.
Puryear v. State, 810 So.2d 901, 905-906 (Fla. 2002).

Snyder did NOT expressly overrule its earlier decision in Irvine, or the First District's express ruling. It simply declined to extend it. The dicta in Florida National Properties and G.B.V. did not and could not overrule Irvine or extend Snyder because the issue of written findings was not before the court.

Therfore, the Fourth District's opinion in this case is legally wrong, as are the numerous circuit court decisions that "follow" Snyder and refuse to follow Irvine.

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