County Commission Could Not Grant a Variance that Did Not Meet the Published Criteria: A. Wolk v. Bd. of County Commissioners of Seminole County et al, 38 Fla. L. Weekly D1474a (Fla. 5th DCA July 5, 2013).

This case involved a variance from an ordinance that requires all fences or walls to be set back 25’ from the front/street lot line unless they are less than 3 feet tall or “see through.” 

At issue were portions of a side fence consisting of 6’ stockade fencing.  The applicants/owners originally wanted this fence to extend to 1’ from the road, but after seeing negative staff reports, they used permissible iron fencing along the side.  However, it was not clear that the permitted fencing actually met the 25’ setback.  The Board of Adjustment denied the application, finding that the requested variance did not meet the published criteria.  The owners appealed to the County Commission under a “de novo” appeal provision.  The Commission granted the variance, but also found it unnecessary despite the evidence that showed a 6’ stockade fence within 25’ of the front property line.  The circuit court upheld this decision, finding and upholding the Commission on the basis that it could find that the variance was not necessary, and paradoxically therefore, could be granted.

The Fifth District reversed, finding that the Board of Adjustment applied the right law, and that the County Commission and circuit court did not.  While the District Court did not say so, it clearly viewed the Commission’s action as an impermissible attempt to rewrite the zoning regulation through interpretation.  The Fifth District stated:

We believe that the methodology utilized by the Board and approved by the circuit court of granting a variance in violation of the Code provisions yet concurrently concluding that the variance is not necessary is wrong, and its use needs to stop. Otherwise, others will be encouraged to employ the same or similar methods to work their will without regard to applicable laws and ordinances. Such methods not only disregard valid laws, they deprive others living in the neighborhood and surrounding areas of the valid application of ordinances that ensure the landscape of the neighborhood is kept in conformity with orderly growth and development.

The District Court recognized what the circuit court did not:  that the County Commission was using the variance appeal process to simply reinterpret the code and apply it as it saw fit to individual cases.  The Commission clearly thought that the established setback requirement was somehow unreasonable under the circumstances, so refused to enforce it – and refused to apply the published variance criteria.  The District Court correctly found this process to be the application of the wrong law and a miscarriage of justice.

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
petition.

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).

Another 3d DCA Opinion for Strong Judicial Review

Don't know how I missed this one, except that it appeared at first blush to be just another 3d DCA swipe at variances. But the Court seems to be putting a stake in the ground with respect to the proper role of certiorari review - one that is bolsted by the Osborn case.

In Auerbach v. City of Miami, 929 So.2d 623 (Fla. 3d DCA 2006), here's the link to the 3d DCA opinion, the court overturned a circuit court's refusal to quash a variance (though it upheld the court's decision to uphold a major special use permits). In language that clearly holds that the courts SHOULD actively police the decisions of zoning tribunals, the court wrote:

As in numerous prior cases, therefore, including many, like this one, on
“second-tier” review of a circuit court decision, quashal of the variance is
required. On the other hand, by invalidating the variance, we reaffirm
this Court’s solemn promise, which it has steadfastly honored, that
"[t]he law . . . will not and cannot approve a zoning regulation or any governmental
action adversely affecting the rights of others which is based on no more than
the fact that those who support it have the power to work their will." Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387, 394 (Fla. 3d DCA 1980), cert. denied, 386 So. 2d 635 (Fla. 1980).

(internal citations omitted, quotation reformatted to work for the web).

While Allapattah involved the approval of a development over the objections of surrounding neighborhoods, the language applies equally to the denial of a development order at the behest of a complaining public.

The Court went on in a footnote to address the issue of whether the failure to follow the law constituted a “miscarriage of justice” and suggested that ANYTIME the lower tribunal fails to follow the law, a miscarriage has occurred:

The respondents seem to suggest that the simple, clear and direct violation of
the law, which we find here without “weighing” or “evaluating” the non-existent
evidence of a hardship, may be justified by claims (a) that the variance may
render the project more aesthetically pleasing; or (b) more economically
rewarding; or (c) that fixing the results of improperly granting the variance
may be expensive or inconvenient; (d) that the City of Miami authorities thought
that the variance was generally a good idea; or (e) that the violation was, in the broad scheme of things, too minor to warrant our attention. Notwithstanding any or all of this, it is the unshirkable obligation of the courts, on whatever “tier” of consideration, “to say what the law is” and to effect that judgment. Failing to do so in this case would create both a direct conflict with these decisions, and an unjustified approval of the obvious failure of the circuit court to apply the correct law and of the resulting “miscarriage of justice” which occurred below.

Maybe what we're seeing is a reassertion of the proper role of the judiciary after years of allowing local governments to do what they want without effective judicial review, whichever way that decision happens to go.