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Conquering the Maze of Certiorari Review of Local Government Quasi-judicial Land Use Decisions

Environmental & Land Use Law

For land use practitioners, there are few feelings worse than walking away from a county commission meeting in the dead of night after an hours-long quasi-judicial hearing which—despite your preparation—results in a defeat. Worse yet is waking up the next morning to the realization that you must prepare a petition for writ of certiorari. In an effort to ease uncertainties with this process, this article synthesizes the rules and cases applicable to certiorari review and offers a practical guide to the certiorari process.

• What are the deadline and requirements for filing a petition for writ of certiorari?

Rule 9.100(c) of the Florida Rules of Appellate Procedure requires that a petition for writ of certiorari be “ filed within thirty (30) days of rendition of the order to be reviewed.” (Emphasis added.) Rule 9.100(g) specifically requires that all petitions for certiorari contain at least the following: 1) the jurisdictional basis; 2) facts entitling petitioner to relief; 3) nature of the relief sought; and 4) argument with appropriate citations. The rule also requires that the petition have on its first page a caption appropriate for the court in which the petition is filed. If the action is a circuit court petition for writ of certiorari, Rule 9.100(f)(2) further requires that the caption contain a statement that the pleading is in actuality a petition for writ of certiorari filed pursuant to Rule 9.100. Typically, placement of a short statement such as “Rule 9.100 Petition for Writ of Certiorari” above the case number will satisfy the requirements of the rule.

The petition itself cannot exceed 50 pages in length.1 Unlike the general rules regarding lengths of briefs filed in appellate proceedings,2 Rule 9.100 makes no provision for petitions in excess of 50 pages.

• What local government decisions are reviewable via a petition for certiorari?

Quasi-judicial decisions of agencies, boards, and local government commissions not directly appealable by way of another provision of general law are reviewable via a petition for certiorari.3 The Florida Supreme Court described quasi-judicial decisions as the application of existing policies as opposed to the formulation of new policies.4 In the land use context, quasi-judicial decisions appropriate for certiorari review normally involve approval of site plans,5 building permits,6 rezoning applications,7 plats,8 special exception permits,9 and any other development orders.10

Legislative decisions by local governments for which there is a remedy pursuant to Florida’s Administrative Procedure Act are not reviewable via a petition for writ of certiorari in circuit court. For example, decisions regarding comprehensive plan amendments,11 Including small scale plan amendments,12 are not appropriate for certiorari review in circuit court.13 Additionally, the Florida Supreme Court recently clarified that constitutional challenges to local government action are not subject to certiorari review as the reviewing court is without power in a certiorari proceeding to declare the local government’s decision violative of the federal or state constitution.14

• Must the local government’s decision be in writing?

In most cases, no. Although the authors of this article agree with Justice Pariente’s dissent in Broward County v. G.B.V., 787 So. 2d 838 (Fla. 2001), regarding the usefulness of written findings, as of yet, there is no universal requirement in Florida that quasi-judicial decisions by local governments be reduced to writing. However, exceptions to the general rule can be found in specific statutes. For example, the federal Telecommunications Act requires that the final decision of a local government regarding consideration of a request for a communications tower be made in writing.15 Unless governed by a specific statutory requirement (and interpretive case law supporting the proposition that a decision is not final until reduced to writing), it should be assumed for purposes of calculating pertinent filing deadlines that a local government’s decision is rendered on the day the vote is cast.

• Must an appendix be filed with the petition?

Yes. Rule 9.100(g) requires that a petition be accompanied by an appendix which comports with the requirements of Fla. R. App. P. 9.220 which in substantive part requires that the appendix contain “such portions of the record deemed necessary to an understanding of the issues presented.” Florida courts have ruled on several occasions that lack of an appendix16 or an insufficient appendix17 is grounds for dismissal or denial of a petition for certiorari. Rule 9.100(g) also requires that the petition “contain references to the appropriate pages of the supporting appendix.”

The appendix must be indexed and composed on 8½ x 11 inch paper.18 It must be either bound separately or separated from the petition itself by some type of divider or tab.19 If the appendix is separately bound, the index will typically be captioned. If a written opinion exists, such as a resolution, a copy must be included in the appendix.20

The appendix must contain the decision for which review is sought if it has been reduced to writing. Beyond that, technically, the appendix is only required to contain that information necessary to an understanding of the issues raised by the petition. Typically, the appendix will contain items such as a transcript (if available), official minutes of the meeting(s), the application for development approval, and any exhibits introduced at the quasi-judicial hearing. Items in the appendix must be confined to those items which would otherwise be properly characterized as part of the “record.” As such, newly created affidavits and other documents not presented at the quasi-judicial hearing are not appropriate for inclusion in the appendix.

• Does a record need to be transmitted that includes a transcript of the hearing?

No. Rule 9.100(i) specifically provides that no record be transmitted to the court except upon order of the court. It is, however, permissible and common practice to include a transcript of the quasi-judicial hearing, if available, as part of the appendix filed in support of the petition. The plain language of the rule does not require transmission of a transcript so long as the appendix contains enough material to set forth an adequate basis for relief. If it is determined that the transcript is not “necessary to an understanding of the issues presented,” there is no requirement that a transcript be prepared and included as part of an appendix.

Occasions will undoubtedly arise when a court reporter is not on hand to transcribe the meeting in “real time.” A workable substitute is to have a court reporter obtain copies of audio tapes of the meeting, if they exist, and transcribe the tapes. If transcription is simply not possible due to bad audio quality, unavailability of tapes or otherwise, the only recourse is to obtain the “official minutes” of the meeting, as recorded by the clerk. In cases where live transcription or transcription of a recording of the meeting is not available, the only available medium reflecting the proceedings is likely the minutes of the meeting, which are inevitably composed as the clerk perceives fit. The prudent practitioner will have a court reporter on hand for a quasi-judicial hearing and determine after the meeting if transcription is necessary.

• What formatting and other technical considerations need to be taken into account when filing the petition? 21

The petition must be presented to the court in typeface that is either Times New Roman 14-point font or Courier New 12-point font.22 To ensure compliance with the rule, the petition must contain a “certificate of compliance,”23 located after the certificate of service, which indicates that the brief comports with the font requirements of Rule 9.100(l). The petition must be printed with one inch margins on all sides, and the text is to be double-spaced, except for footnotes and quotations which may be single-spaced. As the petition is filed pursuant to the Florida Rules of Appellate Procedure, the uniform citation requirements prescribed by Rule 9.800 are applicable.

• If other causes of action exist as a result of the same local government action, should the petition for writ of certiorari be filed as a separate cause of action or included as part of one filing which consists of a complaint and petition for writ of certiorari?

Often, one local government decision will result in multiple causes of action. For example, the failure of a local government to approve a development order at a quasi-judicial hearing may result in a complaint for declaratory and injunctive relief based on inconsistency with the local comprehensive plan as well as a petition for writ of certiorari claiming a lack of competent substantial evidence to support the quasi-judicial decision. The question is whether the complaint and petition can be filed as part of the same initial filing with the petition for writ of certiorari being another “count” of the complaint. The answer is that practitioners tend to disagree on the appropriate course of action, although the authors believe that in almost all cases, filing a petition for writ of certiorari in circuit court as part of a larger complaint stating other causes of action is appropriate and saves your client the additional costs associated with pursuing two litigation matters.

Rule 1.630 of the Florida Rules of Civil Procedure affords circuit courts the power to review complaints for common law certiorari and notes that the initial pleading shall be a complaint.24 The Florida Supreme Court has noted that although the appellate rules apply to certiorari proceedings in circuit court, the true nature of the proceedings is more akin to a “trial de novo” than an “appeal.”25 The recent debate among land use practitioners regarding whether separate causes of action must be filed stems from the Florida Supreme Court’s December 2003 ruling in Miami-Dade County v. Omnipoint Holdings, 863 So. 2d 195 (Fla. 2003), in which the court held that review of the constitutionality of a local regulation is inappropriate through certiorari review. Due to the limited nature of the scope of review and possible remedies applicable to certiorari actions, the court’s decision in Omnipoint is not surprising as the district court not only upheld the circuit court’s quashing of the local government decision but also sua sponte declared portions of the local government regulations unconstitutional. Omnipoint does not specifically prohibit filing one cause of action which contains a petition for certiorari review and pleads other bases for relief. The appropriate interpretation of Omnipoint until further clarified is that one cause of action is permissible pleading practice.

From a practical standpoint, it would be prudent to hold the noncertiorari causes of action in abeyance (by way of joint stipulation or otherwise) until after the court issues its decision in the certiorari proceeding. The court’s certiorari review is limited to the record, as explained above, whereas in a declaratory judgment action alleging inconsistency between a local government decision and the applicable comprehensive plan is a de novo proceeding at which all evidence available, not just presented to the local government, may be considered by the court in making its determination. In order to keep the certiorari review untainted by extraneous and inadmissible evidence the best course of action is to delay the introduction of such evidence and issues until the conclusion of the certiorari proceeding, should pursuit of alternative remedies be necessary at that point.

As a final note on this subject, every lawyer’s touchstone for pleading should be what is usual, customary and expected in the circuit at issue. Some circuits have appellate divisions which are the appropriate forum for the certiorari proceeding, but not other legal claims. Other circuits are accustomed to the filing of separate causes of action. Local practice in your circuit should factor heavily in this decision.

• What happens upon filing?

After filing the petition for writ of certiorari, the onus is on the court to take action. Rule 9.100(f)(3) requires the clerk of the circuit court to transmit the petition and appendix to the assigned judge in order to determine whether an order to show cause should be issued. The court typically reviews the petition and appendix for sufficiency and if appropriate an order to show cause is issued. The order to show cause directs the respondent to “show cause” why the petition for certiorari should not be granted. Rule 9.100(h) provides that the petition must demonstrate at least one of three things for the court to issue an order to show cause: 1) a preliminary basis for relief; 2) a departure from the essential requirements of law which will cause material injury for which there is no adequate remedy through appeal; or 3) that review of final administrative action would not provide adequate relief. If the petition demonstrates such a basis for relief, the court, in its discretion, may issue an order to show cause.

• What if the court fails to issue an order to show cause in a timely manner?

The Rules of Appellate Procedure do not prescribe any time period in which the court must issue an order to show cause or decline to do so. If more than 90 days have elapsed since filing the petition, it is possible that the petition has not been properly directed by the clerk or the court is otherwise unaware of its pendency. After three months, it is in your client’s best interest to ensure the court is aware of the pending petition without offending the assigned judge. A good first step would be to contact the court clerk to confirm that the petition and appendix were forwarded to the appropriate judge for review as required by Rule 9.100(f)(3).

Other possible options include a request for case management conference and/or submission of a polite letter to the assigned judge. Technically, it would be possible to wait an extended period of time to resolve the matter as petitions for writ of certiorari are not fairly susceptible to motions to dismiss for failure to prosecute;26 however, such delay is seldom in the client’s best interest.

• Must the court issue an order to show cause?

No. Rule 9.100(h) describes the court’s power to issue orders to show cause as discretionary.27 Florida circuit courts which have declined to issue orders to show cause in cases where it was determined that the petitioner failed to state a preliminary basis for relief have been upheld on appeal.28 It is worth noting, however, that recent cases from the Second District suggest that if the petition is facially sufficient and demonstrates a preliminary basis for relief, an order to show cause must be issued.29

• Is it appropriate to file a motion to dismiss a petition for writ of certiorari prior to the issuance of an order to show cause?

No. The only appropriate responsive pleading permitted by the rules is a response brief which is to be filed only after issuance of an order to show cause.30

• When is the response brief due and what are its technical requirements?

Pursuant to Rule 9.100(j) the response is due on the date set by the court in the order to show cause. The response brief must contain argument in support of respondent’s position, citation of authority, and appropriate references to the appendix. The respondent may also file additional portions of the record with the court by way of an appendix, if necessary. The response brief cannot exceed 50 pages in length31 and must meet the same technical requirements as the petition described above (uniform citation, font requirements with certificate of compliance, page size, margins, and double-spaced).32

• When is the reply brief due and what are its technical requirements?

The reply brief must be served within 20 days of the service of the response brief, unless another time is set by the court.33 The reply brief cannot exceed 15 pages in length, but it may be filed with a supplemental appendix, if necessary. Again, the reply brief must comply with all technical formatting requirements prescribed by Rule 9.100(l) of the Florida Rules of Appellate Procedure.

• What is the standard of review applied by the circuit court in deciding whether to issue an order to show cause?

The Florida Supreme Court has described circuit court certiorari review of quasi-judicial local government decisions as “first-tier” certiorari review.34 In first-tier certiorari review, the court must determine “(1) whether procedural due process is afforded, (2) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” The circuit court is without power to take any action in the certiorari proceeding except to quash the decision of the local government and thereby “halt the miscarriage of justice.”35

• What is “supported by competent substantial evidence?”

Too often in certiorari proceedings, lawyers ask the court to reweigh the evidence presented at the quasi-judicial hearing by taking into account that evidence which supports the decision of the local government and comparing its relative strength to that evidence which rebuts the decision of the local government. Such practice is inappropriate as part of first-tier certiorari review. The circuit court’s function in evaluating the competent substantial evidence prong of the first-tier certiorari review is to peruse the record to find evidence which supports the local government’s decision and then determine whether such supporting evidence is competent and substantial.36 From a practical standpoint, the standard of review in certiorari proceedings is very deferential to the local government decision, as any evidence determined to be competent and substantial will effectively defend the propriety of the local government decision.37

• What recourse exists for an adverse decision by the circuit court?

The appropriate recourse for an adverse decision by the circuit court is to file a petition for writ of certiorari in the appropriate district court of appeal. Because Rule 9.100 will govern the certiorari proceedings in the district court, the technical aspects of the certiorari process will be the same as the circuit court except that the order to be reviewed is that of the circuit court, not the local government.

• What is the standard of review applied by the district court of appeal in its certiorari review of the circuit court decision?

Certiorari review by the district court of appeal is more limited than that afforded the parties in the circuit court proceeding. It has been described by the Florida Supreme Court as “second-tier certiorari review” which is “similar in scope to true common law certiorari.”38 In reviewing the circuit court’s judgment, the district court is limited to consideration of whether the circuit court afforded procedural due process and applied the correct law.39 Consideration by the district court of whether the decision is supported by competent substantial evidence is impermissible. Likewise, the district court is without power to address the merits of the controversy by a judgment directed to either the circuit court or local government. The district court through certiorari review is only empowered to quash the order of the circuit court and remand for further proceedings.

As with most legal endeavors, preparing an effective petition for writ of certiorari begins before the opening of the quasi-judicial hearing. A useful and thorough record is an essential step toward effectively arguing a petition for writ of certiorari in circuit court. After the hearing, understanding and being comfortable with the rules and cases governing the certiorari process will go a long way toward effective advocacy and defense of your client’s interests.

1 Fla. R. App. P. 9.100(g).
2 See Fla. R. App. P. 9.210(a)(5) (“Longer briefs may be permitted by the Court.”).
3 Fla. R. App. P. 9.100(c)(2).
4 Broward County v. G.B.V., 787 So. 2d 838 n.4 (Fla. 2001) (citing Board of County Comm’rs v. Snyder, 627 So. 2d 469, 474 (Fla. 1993)).
5 Id.
6 Id.
7 Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986).
8 G.B.V., 787 So. 2d 838.
9 Miami-Dade County v. Omnipoint Holdings, 863 So. 2d 195 (Fla. 2003).
10 It is worth noting if a “typical” quasi-judicial decision fails to afford a due process hearing, it is possible that certiorari review will not be available and review of the local government action may have to be by way of a de novo circuit court action for declaratory and injunctive relief. See Robert Lincoln and Sidney F. Ansbacher, What’s a Local Government Got to Do to Get Reviewed Around Here? – Review of Local Administrative Actions by Common Law Certiorari after Pleasures II v. City of Sarasota, 77 Fla. B.J. 50 (May 2003).
11 Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997).
12 Coastal Development of North Florida v. City of Jacksonville, 788 So. 2d 204, 210 (Fla. 2001).
13 There is also a possibility that large-scale rezonings may be considered legislative in nature as opposed to quasi-judicial, thereby making certiorari review inappropriate. See City of New Smyrna Beach v. Andover Dev. Co., 672 So. 2d 618 n.2 (Fla. 5th D.C.A. 1996).
14 Omnipoint, 863 So. 2d 195 (Fla. 2003).
15 47 U.S.C. §332(c)(7)(B)(iii).
16 See DiPietro v. Coletta, 512 So. 2d 1048, 1050 (Fla. 3d D.C.A. 1987) (dismissal of petition for writ of certiorari appropriate when petitioner failed to supply any record of the proceedings below); City of Hallendale v. Heim, 472 So. 2d 1386, 1387 (Fla. 4th D.C.A. 1985) (dismissal was appropriate when petitioner failed to supply a record and a transcript of the proceedings below).
17 McCray v. County of Volusia, 400 So. 2d 511, 512 (Fla. 5th D.C.A. 1981) (dismissal of petition for certiorari was appropriate when petitioner failed to submit in his appendix any testimony from the witnesses who testified at the personnel board hearing which was essential to the court’s understanding of the issues presented by the petition).
18 Fla. R. App. P. 9.220.
19 Id.
20 Id.
21 The technical requirements cited in this section are applicable only in Florida state courts. If the petition for writ of certiorari is filed in federal district court, the applicable local rules will govern such technical requirements. It is worth noting that although the circuit court certiorari proceeding is “appellate” in nature, venue of the action in federal district court is sometimes possible. If the petition for certiorari involves the same case or controversy as other causes of action which “arise under” federal statutes or the U.S. Constitution, the district court, in its discretion, may exercise supplemental jurisdiction over the petition for writ of certiorari filed pursuant to Florida law. See Chicago v. International College of Surgeons, 522 U.S. 156, 166 (1997); Gainer v. City of Winter Haven, 134 F. Supp.2d 1295, 1302 (M.D. Fla. 2000).
22 Fla. R. App. P. 9.100(l).
23 A typical certificate of compliance will read as follows: “I hereby certify that this brief was prepared in Times New Roman, 14-point font, in compliance with Rule 9.100(l) of the Florida Rules of Appellate Procedure.”
24 Although Rule 1.630 describes the process for circuit court certiorari review generally, the Florida Rules of Appellate Procedure speak directly to the issue of certiorari review of quasi-judicial decisions by local governments. If ever in conflict, the more specific provisions of Rule 9.100 of the Florida Rules of Appellate Procedure should govern certiorari review of quasi-judicial land use decisions by local governments in circuit court, not the provisions of Rule 1.630 of the Florida Rules of Civil Procedure. Fla. R. Jud. Admin. 2.135.
25 City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982).
26 Rightler v. Pompano Beach Police, 467 So. 2d 461 (Fla. 4th D.C.A. 1985) (after a petition is filed, it is up to the trial court to make the next move and a motion to dismiss for failure to prosecute is inappropriate).
27 Fla. R. App. P. 9.100(h) (“If the petition demonstrates a preliminary basis for relief. . . the court may issue an order directing the respondent to show cause. . . . ”) (emphasis added).
28 See Wingate v. State, 442 So. 2d 1023 (Fla. 5th D.C.A. 1983).
29 See Department of Highway and Motor Vehicles v. Snell, 832 So. 2d 177 (Fla. 2d D.C.A. 2002); Evergreen Tree Treasures v. Charlotte County, 810 So. 2d 526 (Fla. 2d D.C.A. 2002).
30 See Irvine, 495 So. 2d 167 (describing the burden shifting as the certiorari proceeding progresses and appropriate responses by respondent after issuance of order to show cause).
31 Fla. R. App. P. 9.100(j).
32 Fla. R. App. P. 9.100(l).
33 Fla. R. App. P. 9.100(k).
34 Vaillant, 419 So. 2d at 626 (Fla. 1982).
35 G.B.V., 787 So. 2d at 843; see also Tamiami Trail Tours, Inc. v. Railroad Comm’n, 174 So. 451, 454 (Fla. 1937) (“The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the respondent to enter any particular order or judgment.”).
36 See G.B.V., 787 So. 2d at n.25 (finding that a determination by county staff that the plat should be approved was outside the scope of the inquiry during certiorari review because the local government decision being reviewed was a denial of the plat application).
37 See, e.g., Dorian v. Davis, 874 So. 2d 661, 663 (Fla. 5th D.C.A. 2004) (noting that any competent substantial evidence in the record will support the local government’s determination); Eckler v. Orange County, 763 So. 2d 545 (Fla. 5th D.C.A. 2000) (upholding local government determination even though only one of the three bases for decision were supported by the record).
38 G.B.V., 787 So. 2d at 843.
39 Vaillant, 419 So. 2d at 626.

Gary K. Hunter, Jr., is a litigation attorney and shareholder with the law firm of Hopping Green & Sams in Tallahassee where he focuses his practice throughout the state of Florida primarily in the areas of environmental and land use litigation, including private property rights litigation, local government development entitlements, solid and hazardous waste regulatory issues and Superfund cost recovery actions.
Jennifer A. Tschetter is an associate with Hopping Green & Sams whose
focus is land use litigation and enforcement of private property rights.
Author’s note: The information in this article is general in nature and should not be construed as legal advice or a legal opinion on specific facts or circumstances.
This column is submitted on behalf of the Environmental and Land Use Law Section, Robert D. Fingar, chair, and Robert Manning, editor.

Environmental & Land Use Law