F & R Builders, Inc. v. Durant
| Decision Date | 25 November 1980 |
| Docket Number | No. 80-1588,80-1588 |
| Citation | 390 So.2d 784 |
| Parties | F & R BUILDERS, INC., Petitioner, v. The Honorable N. Joseph DURANT, Jr., Circuit Judge 11th Judicial Circuit in and for Dade County, Respondent. |
| Court | Florida District Court of Appeals |
Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Anthony J. O'Donnell, Jr., Miami, for petitioner.
John H. Lipinski, Miami, for respondent.
Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
In this original proceeding, petitioner, F & R Builders, Inc. (F & R) seeks a writ of prohibition to prevent the Appellate Division of the Circuit Court of the Eleventh Judicial Circuit from entertaining further jurisdiction in a proceeding for common law certiorari (Case No. 80-073-AP) in which Cheryl Brown is the petitioner and Metropolitan Dade County and F & R are respondents.
F & R requested the Zoning Appeals Board to grant a special exception to permit residential property to be served by private drives. The Zoning Appeals Board sent Ms. Brown as well as other property owners in the area a courtesy notice informing them of the application and hearing date. Ms. Brown did not appear before the Zoning Appeals Board which ultimately approved the request. She then timely appealed that order to the Board of County Commissioners pursuant to Section 33-313, Metropolitan Dade County Code. After review of Ms. Brown's appeal, the Board of County Commissioners unanimously adopted the action taken by the Zoning Appeals Board. Ms. Brown then timely commenced the pending petition for a writ of certiorari (Case No. 80-073-AP) in the Circuit Court. F & R in turn filed a motion to dismiss the petition on the grounds that the Circuit Court had no jurisdiction because Ms. Brown: (1) did not have standing to bring the suit; and (2) had not exhausted her administrative remedies as evidenced by her failure to object to the original application at the time it was pending before the Zoning Appeals Board.
We first consider the preemptive question of whether Ms. Brown had standing in the lower tribunal and in the underlying proceedings before the Board of County Commissioners and the Zoning Appeals Board.
The Appellate Division of the Eleventh Judicial Circuit denied the motion to dismiss, evidently relying upon our decision in Dade County v. Jim's Northwest, Inc., 171 So.2d 612 (Fla.3d DCA 1965). That decision is readily distinguishable because there the record from the Zoning Appeals Board involved the request to enlarge the use of a permittee's premises from that of a bar to a nightclub and mandatorily required that churches and schools within a certain distance of the permittee's business be included on a required sketch which was an exhibit placed in the record. It was for that reason that the church's name was part of the record which this court held gave it sufficient standing to pursue the appeal.
The courtesy notice given to Ms. Brown did not afford her standing. We consider the decision in Dade County v. Jim's Northwest, Inc., supra, inapplicable because, under the facts of this case, the definition of "record" is established by the Board of County Commissioners pursuant to Section 33-302(k) of the Metropolitan Dade County Code 1 and that section did not make a courtesy notice to Ms. Brown part of the record. The fact that her name may have appeared on papers transmitted by the Zoning Appeals Board to the Board of County Commissioners did not enlarge upon her rights as defined by Section 33-302(k), supra.
The notice to Ms. Brown was, at most, a courtesy extended to her but as it was not properly part of the record she had no standing as an "aggrieved party" as that term is...
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