2d DCA – Building Permit Decisions are NOT Quasi-Judicial and Not Subject to Certiorari Review

City of St. Pete Beach and Ronald Holehouse v. Sowa, 4 So.3d 1245 (Fla. 2d DCA 2009)
The 2d DCA overtuned a circuit court decision that granted certiorari review of a decision of the building official to issue a building permit. The 2d DCA properly found that the building official’s decision was not quasi-judicial and therefore not subject to certiorari review. This should not be news to anyone (see, e.g. Pleasure II Adult Video v. City of Sarasota - directly on point), but attorneys not versed in land use law – and circuit courts – continue to screw it up.
Note – any declaratory action to challenge this decision will/should probably be dismissed for failure to exhaust administrative remedies that are provided by the Florida Building Code.

Code Enforcement and the Fact Not Discussed

In City of Miami v. Cortez, the 3d District overturned a circuit court decision in an appeal of a code enforcement board "mitigation order."

The 3d found that the circuit court failed to comport with the essential requirements of law. It found that any objections to the testimony in the mitigation hearing were not preserved, and that due process had been followed.

Here's how the 3d characterized the background facts:

On October 3, 2003, the City’s Code Enforcement Board ("Board") held a hearing
where property owner Amado Sabina pled guilty to a code violation for
performance of work on a residential property without a final permit. The Board
entered an enforcement order on October 10, 2003. Property owners Sabina and
Eumelia Cortes were afforded 60 days to correct the violation or face a fine of
$250 per day.

The property owners failed to correct the violations
and fines totaling $105,750 were assessed. On June 2, 2005, the Board held a
mitigation hearing to determine whether to reduce the amount of the fines
accrued. All of the witnesses at the hearing were duly sworn. At the conclusion
of that hearing, the Board reduced the fine to $10,000 and entered a mitigation
order.

The property owners appealed the mitigation order to the appellate
division of the circuit court, arguing that the mitigation order should be set
aside because the city inspector had improperly delayed inspection for a period
of six months. However the Board had already accepted this argument in reducing
the fine to $10,000. The appellate division nonetheless reversed both the
enforcement and mitigation orders.

The 3d quashed the decision of the circuit court.

However, it's clear to me that the 3d didn't include the truly relevant facts or address the real due process problem.

I suspect that the owners thought that they had fixed the problem and were shocked that fines were still accruing - this happens ALL THE TIME in these cases. The issue is that these orders end up creating "running fines" and (I think unconstitutionally) put the burden of proof on the owners to demonstrate that the violation no longer exists. Once an order imposing fines is issued, the local governments claim that they are under no further obligation to investigate or to determine whether a violation continues.

When the violation is for work without a permit, the violation generally isn't fixed until a permit is issued, any remedial work is done, and the work is inspected and signed off. This creates a situation where the local government can leave a person in violation by delaying permit decisions or imposing improper conditions, by finding inconsequential problems in the inspection, or by not inspecting. And by not notifying the code enforcement people when the inspection is done.

It's quite possible under the fact here that the property owners in fact got a permit and did anything else they needed to do within the 60 day window, but that the inspections were delayed and then even after the inspection the fines were accruing.

I would argue strongly that if that is the case, then the code enforcement statute is being administered unconstitutionally. I KNOW that this happens every day.

And I'm having to speculate because the opinion in this case is so devoid of the truly relevant facts, but I suspect that this is what the owners showed to the circuit court. So, did the 3d District get it wrong? We really can't tell because the opinion doesn't give use the rel event facts.

LESSON: If a client gets into code enforcement problems, get in the board's face and start objecting to EVERYTHING from the first hearing. Object that the hearings violate due process because the written guidelines are inadequate or lacking; demand rulings on right to cross examine; object to every piece of written evidence that is offered (most of it is hearsay, lots of it is inadmissible). Object to the local ordinance if you can. And demand very specific findings from the Board or Special Magistrate regarding EXACTLY what actions need to be taken to correct the violation. And then appeal the VERY FIRST determination (the "violation" determination).

If it gets to a "penalty" hearing, make the same objections. Then enter evidence on the "four factors" in the section 162.09 regarding the amount of penalty.

The code enforcement system has turned into a maze of abusive traps because the processes are badly written, badly administered, and almost always applied against unrepresented respondents.

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.

Failure to Appear or Raise Issues at QJ Hearing Does not Preclude Standing under 163.3215

In Dunlop v. Orange County, the 5th DCA held that a aggreived neighbor is not precluded by waiver from demonstrating standing and raising issues in a de novo proceeding under 163.3215 for failure to do so in the quasi-judicial proceeding before the local agency.

Yeah, it's obvious: if you have a de novo hearing, all of the issues are de novo. Didn't stop Orange County from claiming waiver and preclusion to the apparently clueless circuit court.

Just another example that the circuit courts (improperly, in way too many cases) trust the positions of local government attorneys over their private counterparts, whether they are representing developers or neighbors. The result: effectively unreviewable discretion. De novo proceedings under 163.3215 are one of the exceptions -- too bad the courts refuse to give effect to the 2002 amendments and allow landowners to challenge improper interpretations of the plan to deny development orders.

Just What Can You Do After Quashal?

In Hernandez-Canton et al v. Miami City Commission et al, the 3d DCA held that the city commission and circuit court erred in interpreting an earlier decision it had issued in the same matter.

The dispute goes to whether an application was vested against changes in the zoning regulations. The vesting provision in the amending resolution sets a particular date for having a complete application submitted. In the first case, here's the link to the original Morningside opinion, the 3d District found that the application was subject to the new regulations because the approval resolution on its face established that the "completeness" date was after the vesting date. Here's the most relevant part of the opinion:

The City’s zoning resolution states, in the second "whereas" clause, that "on
February 10, 2004, . . . [the developer] submitted a complete Application for
the previously reviewed Major Use Special Permit application . . . ." (Emphasis
added). By the terms of the resolution, the City treated the application as
being complete on February 10, 2004. This was after the effective date of the
new ordinance.
Section 1305.2.1 of the zoning code provides in substance for
grandfathering of "any complete application for development filed prior to
January 1, 2004 . . . ." (Emphasis added). As stated in the zoning resolution,
the application in this case was not complete until February 10, 2004. That
being so, the January 2004 amendments are applicable to this application.

On remand, the City Attorney apparently took the position that the resolution approving the development was not actually quashed and could be fixed by entering new findings. The City Commission apparently reapproved the resolution. Here's how the 3d DCA describes it:

The City Attorney took the view that our court had left the 2004 zoning
resolution intact, and had simply remanded so that the City Commission could
make findings in support of its 2004 resolution. The objectors argued that the
earlier zoning resolution could not stand in view of this court’s determination
that the 2004 resolution was based on the wrong law, i.e., the wrong version of
Section 1305.
The City Commission accepted the proposition that its 2004 zoning resolution had not been overturned. The City Commission enacted a new zoning resolution which made the findings contemplated by the new version of Section 1305. The objectors sought certiorari review in the appellate division of the circuit court, which was denied.
The objectors then sought second-tier certiorari review in this court. The petition for certiorari is well taken.

OK, so what this does NOT tell us is whether the findings that the City Commission entered were new findings that the application was in fact complete prior to the "drop dead date." We also don't know whether new findings were challenged as being supported or supportable by competent substantial evidence, or simply that the City Commission didn't have the legal right to alter its earlier finding on remand.

The 3d goes on to make this out to be a big misunderstanding of its earlier opinion and to provide very precise instructions on the scope of its decision:

We must respectfully say that our prior opinion was misinterpreted in the
proceedings on remand. In order for the developer’s application to be approved,
it was necessary for the developer to demonstrate compliance with the new
version of Section 1305. Since the City Commission in 2004 applied the old
version of Section 1305, it follows that the 2004 zoning resolution was
defective and had to be set aside. It was necessary for the City Commission to
conduct a new hearing and make a determination whether the developer’s proposed
project does, or does not, comply with the new version of Section 1305.
We therefore grant certiorari and quash the decision of the circuit court appellate
division. We vacate the 2006 and 2004 zoning resolutions. We remand this matter
to the circuit court appellate division, with directions to remand the matter to
the City Commission for a new hearing and determination by the City Commission
whether the proposed project does, or does not, comply with Section 1305 as
amended in 2004. At the new hearing, the developer has the burden of
demonstrating compliance with the new version of Section 1305.

OK, it's obvious that if the project could meet the amended versions there would be no dispute here. BTW, it's also very unclear whether the court's instructions violate the Florida Supreme Court's determination in G.B.V. regarding what "quashal" and "remand" mean, and the limits on judicial authority in cert cases.

What's interesting is that the Court, without ever saying so, is holding that the City was not free to make new findings regarding the "completeness date" and whether the application therefore could be processed under the earlier regulations.

I find this case very troublesome all around. On one hand, it is hard to avoid the conclusion that the developer and the City were playing hard and fast with the rules, in both hearings. On the other hand, the facts we have are those in the 3d DCA opinions, and (sorry to say) the Court clearly has a bias on how it makes these cases come out.

Moreover, the Court does not help us at all understand what it thinks are the rules on remands. It is saying that, as a matter of law, on remand the City Commission can treat the application as still open, open a new evidentiary hearing, and approve the application if the developer proves that it meets the later ordinance. On the other hand, the Court is foreclosing - without discussion- the question of whether evidence could show that the project is vested.

What's going on? does the Court think that the issue of whether the application was vested is a factual "law of the case" matter that was completely disposed of in the first opinion? If so, why doesn't the Court say so? Is the Court saying that, where a local government makes a finding of fact (even in a whereas clause, rather than in some kind of formal finding), it cannot, on remand, accept evidence on that point and make a different finding ? Does the Court believe that to be the meaning of the "law of the case'? If so, is there an exception where cert was granted because the original finding wasn't supported by CSE? Those kinds of holdings would actually be useful to practitioners because these areas of cert law are still very uncertain. Some kind of legal reasoning would at least give us some reference point as to why the Court is adamant that the case can be opened but only to enter findings as to the later regulations.

The failure of the Court to establish the legal basis for its conclusion that its earlier decision was misunderstood and misapplied leads to two alternative conclusions: First, the Court thinks that the situation was sleazy and is trying to kill the development because it thinks that the City made or will make unjustifiable findings in order to vest project, all for some improper purpose. Second, the Court has no clear idea of the legal principles it is invoking or creating and is simply muddying the waters in total confusion. Well, maybe both could be true.

Getting clear legal bases for opinions is not a "pro development" or "anti-development" issue. Everyone in the process should be able to understand what the rules are and how they will be applied, at all stages from staff reviews to hearings to judicial review.

More to This Than Meets the Eye: Dec Action to Challenge Plat Approval

In McCarthy et al v. Hillsborough County, etc al, here's the link, the Second DCA issued this unfortunately short opinion that masks a serious issue that needed serious public analysis:

PER CURIAM.
We deny the petition for writ of certiorari without prejudice to the
petitioners seeking declaratory relief in the circuit court.

Here's the hook: the 2d tier cert was a challenge to the circuit court's denial of a cert attack on the Hillsborough County Commission's approval of a plat in a non-quasi judicial proceeding.

The critical sub-issue is this: under City of Boyton Beach v. Park of Commerce, _____, the Florida Supreme Court held that the site plan decision under review was quasi-judicial in nature. The opinion included language stating broadly that all land use decision were quasi-judicial. But a footnote cited to the Snyder case, noting that the same analysis applied. Snyder, of course, involved a rezoning, and there is are statutory requirements that rezoning ordinance be adopted by ordinance (which involves a hearing). The statute involving plats, as well as the Hillsborough County land use regulations, do NOT have such an explicit provision. However, the platting statute (Chapter 177) does require the local governing board to approve a plat, and other provisions of Chapter 125 and 166 provide that the only way for local governments to act are through ordiances or resolutions, and both those statutes and the Sunshine Law require those actions to be taken at public meeetings - but not necessarily after "public hearings."

Also complicating matters is the whole bizaare history of whether and when plat approvals are ministerial; under the statute, they are if the plat meets the objective, ennumerated standards, but most local subdivision ordinance add additional requirements that may include some discretionary criteria.

Here (based on information I have that's not in the opinion), the Hillsborough County Commission approved the plat at a public hearing, but did not allow affected neighbors to introduce evidence against it. Neighbors challenged by cert under Park of Commerce, claiming violations of due process and essential requirements of law. Circuit court denied, stating that the hearing wasn't quasi-judicial in nature, and the appeal followed.

What we don't know is whether the lower court held that the plat approval wasn't quasi-judicial under the structural analysis of Bloomfield v. Mayo, which holds that you look to see whether the delegating statute or ordinance requires notice and a due process type hearing, or under the so-called functional analysis that comes from Snyder, under which the court looks to see whether the local government was applying versus making policy, and implies and requires quasi-judicial procedures if they are.

Clearly, the County did not offer the incidents of a quasi-judicial hearing, and now the courts have held that a dec action, rather than cert, was the proper remedy. The question is how broadly this holding reaches.