Dade County v. Markoe
| Decision Date | 02 June 1964 |
| Docket Number | No. 63-438,63-438 |
| Citation | 164 So.2d 881 |
| Parties | DADE COUNTY, a political subdivision of the State of Florida, et al., Appellants, v. Seymour and Gerald MARKOE, Appellees. |
| Court | Florida District Court of Appeals |
Darrey A. Davis, County Atty., and St. Julien P. Rosemond, Asst. County Atty., for appellants.
Watson & Watson, Burton M. Cohen, Miami, for appellees.
Before CARROLL, HORTON and HENDRY, JJ.
The Board of County Commissioners of Dade County, respondents below, seek review of a final order which granted the appellees' petition for certiorari and quashed a zoning resolution of the commission.
In early 1962, the appellees applied for a change of zoning on their property from residential to neighborhood business. The Building and Zoning Department of Dade County recommended that the change be denied. After notice and hearing the Zoning Appeals Board also recommended to the appellant commission that the requested change be denied. The matter then came on to be heard before the Board of County Commissioners on July 12, 1962, at which time the commission overruled the recommendations of the Zoning Appeals Board and granted the appellees' requested rezoning by the enactment of resolution # Z-211-62.
On or about July 20, 1962, a neighboring property owner and others requested that the matter be reheard and reconsidered, stating as grounds for their request that the commission had relied upon certain mistaken facts in enacting the resolution. The commission subsequently notified the parties that the matter would be reconsidered and upon a second hearing, on September 6, 1962, heard arguments on both sides of the question as to whether it should reconsider its decision on the requested zoning change. As a result of the September 6, 1962, hearing, the commission adopted resolution # Z-227-62, rescinding resolution # Z-211-62, thus re-establishing the original zoning classification.
The appellees petitioned for certiorari in the circuit court pursuant to § 33-316 1 of the Code of Metropolitan Dade County, in effect challenging the validity of the county commission's action in rescinding its first resolution. After hearing, the circuit court entered the final order granting the petition and quashing resolution #Z-227-62. The appeal is from this order.
We pretermit a discussion of the merits of this appeal to note a serious jurisdictional question, i. e., did the circuit court, under a review by traditional certiorari, have the power and authority to nullify the actions of the appellant commission? We conclude that it did not.
The petition for certiorari filed in the circuit court was pursuant to § 33-316 of the Code of Metropolitan Dade County, and is not to be confused with the statutory certiorari providing for review of decisions of municipal boards of adjustment under the provisions of § 176.16, Fla.Stat., F.S.A. In the latter (statutory) review by certiorari upon the grounds of illegality of the decision is permitted. This has been construed to hold that in certiorari proceedings under the aforesaid statute, a party may attack the constitutionality or validity of a zoning ordinance under which he has unsuccessfully sought a variance or exemption. This statutory certiorari is considered de novo proceedings and the court is permitted to take testimony relative to the alleged claims of illegality. See Union Trust Company v. Lucas, Fla.App.1960, 125 So.2d 582. Such, however, is not permitted in traditional certiorari to review the actions of boards and administrative bodies where they are exercising judicial or quasi-judicial powers and are not within the ambit of § 176.16, supra.
No testimony was taken in this cause and the court determined the matter as a question of law upon the record of the...
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Dade County v. Yumbo, S. A., 76-1433
...administrative in nature were challenged by a direct attack on their validity in an equitable type proceeding. Dade County v. Markoe, 164 So.2d 881 (Fla. 3rd D.C.A. 1964); Sun Ray Homes, Inc. v. County of Dade, supra. Quasi-judicial orders, on the other hand, were reviewable by certiorari i......
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