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. 

3d DCA - "Side" Interpretation of Code Not Separately Reveiwable

In City of Sunny Isles Beach v. Publix, the 3d DCA continued its apparent quest to tell the appellate division of Dade County never to side with a landowner or developer on a land development code issue.

The 3d issued a writ of prohibition preventing the circuit court from hearing a declaratory action brought by Publix against a written interpretation of the local zoning code by the city attorney. The code provided NO local administrative appeal of such a decision.

The 3d granted prohibition on the grounds that the opinion was used in the city commission's denial of Publix's site plan, and that decision was being reviewed by certiorari, so that would be the only review under the rubric that there is no judicial remedy until administrative remedies are exhausted.

Well, all very nice, but the bottom line is that cert review of the denial doesn't get fair review of the issue, for several reasons:
1. If there's any other basis to justify the denial, there's no review of that legal opinion or error.
2. The standard of review at that point is totally unclear because cert review is not to determine "mere legal error" but only "gross" errors that are fundamental (at least when a landowner is seeking review; when it's the government, any error appears to be fundamental in the 3d). Pile on top of that the unclear status of how much discretion to give the local interpretation, and you get a situation where the decision would not be overturned unless there was a finding in the order that flatly contradicted the ordinance AND it was clear from the order that the erroneous construction was the sole reason for the denial.
3 Then throw on top of this the "miscarriage of justice" standard, which was originally added to the 2d tier review standards to indicate further the kind of discretion there is in the discretionary review, but which shows up frequently in circuit court cert opinions.

The upshot is that the issue doesn't actually get resolved and determined. The city will win the cert petition and then claim that this vindicates the interpretation. Which it doesn't and can't.

Which gets to the really interesting problem: a circuit court's review of a local decision really can't be taken as "stare decisis" regarding any interpretation of a local ordinance involved for the simple reason that the court isn't determining whether the interpretation was right or wrong, it's whether it was so totally illegal as applied to particular facts that it created a miscarriage of justice.

Which in turn means that there is no real means in Florida today (and certainly in the 3d District, based on this opinion) to get a full and fair determination of the meaning of local zoning and environmental regulations. Back to the need for a statutory remedy for the review of local ordinances and decisions.

46 N. Washington Blvd, Suite 7, Sarasota, FL 34236      Phone (941) 681-8700

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.