Evans Rowing Club, LLC v. City of Jacksonville, No. 1D19-1851
| Decision Date | 18 June 2020 |
| Docket Number | No. 1D19-1851 |
| Citation | 300 So.3d 1249 (Mem) |
| Parties | EVANS ROWING CLUB, LLC, Petitioner, v. CITY OF JACKSONVILLE, Respondent. |
| Court | Florida District Court of Appeals |
Barry A. Bobek and Lauren E. Bobek of Bobek & Bobek, Jacksonville, for Petitioner.
Tiffiny Douglas Pinkstaff and R. Kyle Gavin, Assistant General Counsel, Office of General Counsel, City of Jacksonville, Jacksonville, for Respondent.
DENIED .
Wolf, J., concurs with opinion; B.L. Thomas, specially concurs with opinion; and Makar, J., concurs with opinion.
The view expressed in Judge Thomas's concurrence is that adoption of article V, section 21 of the Florida Constitution has somehow affected this court's second-tier review of local government land use decisions. This constitutional section has nothing to do with local government decision making, nor does it affect the scope of either original review by the circuit court or the second level review of local zoning decisions by the appellate courts of this state.* The actual terms of the constitutional section exclude local actions. In addition, the common understanding of the terms in the amendment would not have put the voters adopting the constitutional amendment on notice that they were giving the courts more powers over local zoning decisions.
Article V, section 21 reads:
In interpreting a state statute or rule , a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule and must interpret such statute or rule de novo.
(Emphasis added.)
Local land use regulations are not state statutes or rules. Review of local land use decisions and regulations are not pursuant to general law. Local governments are not "administrative agencies." The decision being reviewed is not an interpretation of "state statute or rules." The language clearly refers to initial determinations by a court and says nothing about the scope of second-tier review. The language does not mention local government. Nor is there any mention of putting the courts on an equal footing with local government concerning local land use decisions.
The common meaning of the terms used in the new section would have indicated to voters that they were voting on review of state administrative decisions. They clearly would not have known that they were ceding control on land use decisions from local people who are familiar with local conditions to state appellate judges. A state appellate court in Tallahassee should not put themselves on the same footing concerning land use decisions as local officials from Jacksonville.
The common meaning of "statute" is a law passed by the Legislature. Section 166.041, Florida Statutes, defines local laws as "ordinances." "Agency" is defined in section 120.52. Section 120.52(11)(c) specifically excludes municipalities and legal entities they create from the definition of agency. Section 120.52(16) defines a rule as an "agency" statement. The meaning of these terms was known at the time the people voted on the constitutional amendment.
Existing law is that the court's review of zoning decisions is extremely restricted. Miami-Dade Cty. v. Omnipoint Holdings , 863 So. 2d 195 (Fla. 2003). The scope of this review was laid out 25 years ago by the Florida Supreme Court in Haines City Community Development v. Heggs , 658 So. 2d 523 (Fla. 1995). As Judge Thomas correctly points out in his opinion, this limited review "is based on the principle that the local decisions on zoning and exceptions are entitled to ‘deference [as] to the agency's technical mastery of its field of expertise, and inquiry narrows as a case proceeds up the judicial ladder.’ Broward Cty. v. G.B.V. Int'l Ltd., 787 So. 2d 838, 843 (Fla. 2001) )."
Nothing in the constitutional amendment or public policy considerations warrants the courts to take a more active role in local land use decisions. We should not consider changing these well settled principles.
I concur only because our standard of review is extremely restricted under binding case law, Miami-Dade Cty. v. Omnipoint Holdings, 863 So. 2d 195, 199 (Fla. 2003), but I think this precedent should be reconsidered by the Florida Supreme Court in light of the electorate's command that courts no longer defer to administrative agencies in interpreting administrative actions "pursuant to general law." Such deference, which is even magnified by the supreme court's creation of the highly deferential standard of review in second-tier certiorari cases, does not pass constitutional muster under article V, section 21 of the Florida Constitution.1 I would certify a question addressing this important issue.
In land-use cases, the hyper-deferential review of second-tier certiorari is based on the principle that the local decisions on zoning and exceptions are entitled to "deference [as] to the agency's technical mastery of its field of expertise, and the inquiry narrows as a case proceeds up the judicial ladder." Broward Cty. v. G.B.V. Int'l Ltd ., 787 So. 2d 838, 843 (Fla. 2001) (emphasis added) (footnotes omitted). The precedent of the supreme court establishing that district courts are powerless to conduct plenary review of local zoning decisions is based on the principle that such decisions are inherently administrative and "technical" in nature and, therefore, the extremely limited review on appeal, solely by second-tier certiorari, must respect that administrative competence:
Wiggins v. Fla. Dep't of Highway Safety & Motor Vehicles , 209 So. 3d 1165, 1171-72 (Fla. 2017) (emphasis added).
The rationale in Wiggins has unquestionably now been repudiated. Administrative decisions by nature are now not entitled to deference, and courts must exercise their independent judgment in reviewing those decisions. This of course does not mean that courts must disregard an administrative agency's expertise and knowledge, but courts cannot allow that expertise and knowledge to become a substitute for judicial review established in Florida's organic law under article V of Florida's Constitution: (Emphasis added).
Judge Wolf's concurrence correctly notes that the constitutional amendment adopted in the last election abolishing deference to administrative actions refers to "a state statute or rule[,]" but the concurring opinion incorrectly asserts that article V, section 21 of the Florida Constitution "has nothing to do with local government decision making, nor does it affect the scope of the second level review of local zoning decisions by the appellate courts of this state." Concurring opinion , page 2 . Quite the contrary, the organic law now prohibits deference to local zoning decisions because the constitution itself provides that all zoning decisions must be compliant with general law . "The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law ... Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors." Art. VIII, § 1(f)-(g), Fla. Const. Article VIII, section 1 (i) provides that "Each county ordinance shall be filed with the custodian of state records and shall become effective at such time thereafter as is provided by general law ." (Emphasis added). And in fact, every zoning decision made by local governments carries the imprimatur of state law: "In exercising the ordinance-making powers conferred by s.1, Art. VIII, of the state constitution, counties shall adhere to the procedures prescribed herein. " § 125.66(1), Fla. Stat. (2019) (emphasis added). Any reader who simply searches the term "zoning" in the Florida Statutes in the Florida Legislature's excellent "Online Sunshine" website will receive 176 returns. See Online Sunshine , http://www.leg.state.fl.us/Statutes/index.cfm (last visited May 28, 2020).
Chapter 125, Florida Statutes (2019), provides that the ...
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