G.B.V. Intern., Ltd. v. Broward County, 97-2448

• Decision Date: 25 March 1998
• Docket Number: No. 97-2448,97-2448
• Citation: 709 So.2d 155
• Parties: 23 Fla. L. Weekly D806 G.B.V. INTERNATIONAL, LTD., a Florida limited partnership; and Ashok Patel, General Partner, Petitioners, v. BROWARD COUNTY, Respondent.
• Court: Florida District Court of Appeals

Page 155

709 So.2d 155

23 Fla. L. Weekly D806

G.B.V. INTERNATIONAL, LTD., a Florida limited partnership; and Ashok Patel, General Partner, Petitioners, v. BROWARD COUNTY, Respondent.

No. 97-2448.

District Court of Appeal of Florida,

Fourth District.

March 25, 1998.

Rehearing, Rehearing En Banc

and Certification of Conflict

Denied May 13, 1998.

James C. Brady of Brady & Coker, Fort Lauderdale, for petitioners.

John J. Copelan, Jr., County Attorney, and Anthony C. Musto, Chief Appellate Counsel, Fort Lauderdale, for respondent.

PER CURIAM.

A developer seeks timely review by common law certiorari of an order from the circuit court denying initial certiorari review of a denial of an application for plat approval. We grant the petition and quash the order of the circuit court.

Under Haines City Community Development v. Heggs, 658 So.2d 523, 528 (Fla.1995), certiorari correction of a circuit court's appellate decision should be made "only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice." We find that kind of rare occasion in this case in which we should use our review function to correct a miscarriage of justice.

The Commission did not base its denial of the plat as submitted on estoppel but on incompatibility. Yet the circuit court reached beyond the Commission's stated reasons and decided the application on a basis not raised before the County Commissioners. In order to do so, the circuit court relied on evidence not presented to the Commissioners and thus not considered by them in denying approval. In effect the circuit court decided an issue that was neither presented to nor decided by the Commission. We regard the circuit court's decision in this regard as a departure from the essential requirements of law while sitting in certiorari review of local government action and a denial of procedural due process.

Turning to the merits, we take note of the following circumstances from the record. The developer sought to develop land within the City of Coconut Creek into a mix of single and multiple family residences, and commercial use. The comprehensive land use plans of both the County and the City did not allow for as many residential units on this location as the developer proposed. Initially the developer sought an amendment to the County land use plan to permit 10 units an acre. Although the staff approved the amendment, the County Commissioners balked at the higher number and would approve an amendment to the County land use plan for only 6 units per acre.

The comprehensive land use plans of both the County and City have a feature called "flex units." ¹ After the County Commissioners had denied the requested amendment to the land use plan, the developer went to the City and requested flex units that would allow for the number of units proposed. The City agreed with the flex unit request and thereby allowed the developer to use additional units from other areas within the City's borders; with the allowance the City was still within its comprehensive plan in terms of the total number of units to be developed within the City. Accordingly the City approved the proposed development.

The developer then sought site plan approval by the County in accord with the County's legal requirements. The County staff recommended approval of the plat, finding compliance with all County regulations for plat approval. The County Commissioners were therefore being asked to review the plat for compliance with the County's own...