Snyder House Rules? The New Deference in the Review of Quasi-Judicial Decisions
When the Florida Supreme Court issued its opinion in Board of County Commissioners of Brevard v. Snyder, 627 So. 2d 469 (Fla. 1993), landowners and developers cheered the decision as a victory for applicants seeking zoning changes from local governments.1 Rezonings, the Florida Supreme Court ruled, were not legislative decisions entitled to deferential review under the “fairly debatable” standard.2 Rather, rezonings are “quasi-judicial” decisions, which need not be given such deference and must be supported by competent and substantial evidence.3 Local governments complained that the decision in Snyder placed too heavy a burden on zoning boards and commissions4 and would result in numerous losses on appellate review.
The past seven years have demonstrated that the Snyder decision has been difficult for courts to apply. Circuit courts must determine whether zoning decisions are supported by competent and substantial evidence but also must avoid, on certiorari review, substituting their judgment for local zoning boards and “re-weighing” the evidence.5 District courts must determine whether circuit court decisions meet the “essential requirements of law” but also must avoid, in a “second” certiorari review, undertaking any review of the evidence in the record.6
Difficulty applying Snyder has recently been highlighted by the Florida Supreme Court’s decision in Florida Power & Light Company v. City of Dania, No. SC 93940, 2000 Fla. LEXIS 1220 (Fla. June 15, 2000). In City of Dania, the Florida Supreme Court held that both the circuit court, which quashed the denial of a rezoning, and the district court, which quashed the circuit court’s decision, had erred in their certiorari reviews under Snyder. The circuit court had been wrong to re-weigh the evidence; the district court had been wrong to review the record evidence at all.7
The difficulties which courts face today can be traced to the Snyder decision. Although Snyder required nondeferential review of rezonings as quasi-judicial decisions, it explicitly did not require that written findings be included by local governments in such decisions.8 Written findings, however, are a critical ingredient in the review of quasi-judicial decisions.9 They are necessary guideposts without which a circuit court is left to review the outcome of the local zoning board’s vote on the rezoning without the benefit of the board’s reasoning.10
In its required review of the evidence below, a circuit court applying Snyder faces a “Catch-22”: the court cannot “re-weigh” the evidence or substitute its judgment for that of the zoning board, and yet, in the absence of written findings, any evidence which is relied upon by the circuit court in its review may or may not have been relied upon by the zoning board. Thus, in examining the record without the guidance afforded by written findings, the circuit court necessarily is “re-weighing” the evidence and substituting its judgment for that of the zoning board. District courts, quick to find error in the “re-weighing” of evidence, urge circuit courts to search the record for any evidence in the record supporting the outcome of the zoning board’s vote.11 Exit nondeferential review of decisions which are quasi-judicial; enter deferential review of decisions which are, in effect, viewed as legislative.
Prior to Snyder: Written Findings Are Necessary
Before Snyder, Florida courts uniformly recognized the necessity of written findings to support quasi-judicial decisions and relied upon such findings as the starting point in a circuit court’s review.12 As explained by Judge Zehmer in Irvine v. Duval County Planning Commission, 466 So. 2d 357, 366 (Fla. 1st DCA 1985) (Zehmer, J., dissenting), approved, 495 So. 2d 167 (Fla. 1986), adopted after remand, 504 So. 2d 1265 (Fla. 1st DCA 1986), findings benefit a reviewing circuit court by exposing the “decisional referents”13 below and eliminating “guess-work as to what facts alleged were found not to be true.”14 With findings, the circuit court “can first determine whether or not the facts found by the agency constitute lawful grounds for its action and, then, determine whether the evidence supports the finding[s].”15 In this way, findings operate to prevent a circuit court from “re-weighing” evidence or substituting its judgment for that of the local zoning board.16
Pre-Snyder courts also recognized that written findings operate to “de-politicize” and promote “objective rationality” in zoning decisions.17 In Lee County v. Sunbelt Equities, 619 So. 2d 996 (Fla. 2d DCA 1993), the district court observed, “The requirement of providing specific reasons for a [rezoning], in accord with the characterization of such proceedings as quasi-judicial, should diminish (if not altogether eliminate) the likelihood those mandatory findings will only mask the real reason [an] application was denied.”18
Snyder: No Findings
are Necessary
In Snyder, the Florida Supreme Court acknowledged that written findings are “useful” but remarkably held, without explanation, that such findings are not required to support rezoning decisions.19 The court did not distinguish Irvine or other authorities which require written findings in quasi-judicial decisions;20 nor did the court distinguish rezonings from other quasi-judicial zoning changes in which findings have been required.21 Indeed, it is an open question whether Irvine, which required written findings in a zoning exception, remains good law on this issue.22
Appellate Review
Since Snyder
Although it is unclear whether the Florida Supreme Court intended for Snyder to require a dramatically different review than described by Judge Zehmer in Irvine, that has been the indisputable result.23 In determining that rezonings are quasi-judicial decisions while at the same time eliminating the requirement of written findings in such decisions, Snyder has radically altered appellate review of such decisions by circuit courts.
First, in removing findings as the starting point for appellate review, Snyder forces circuit courts to begin with the outcome (denial or approval) of the local zoning board’s vote and then review the entire record for any evidence supporting the outcome.24 contrast, the review contemplated in Irvine begins with the actual decision, including its reasoning and findings, followed by a review of the record to determine whether the evidence supports the findings.25
Its as grounds for a denial, under Irvine the circuit court reviews the evidence which may support the finding of traffic impacts. It need not review evidence relating to issues such as environmental impacts, because they were not cited by the local board as reasons for the denial. Under Snyder, the circuit court must review the entire record to determine whether it contains any competent and substantial evidence supporting a denial of the rezoning. This review could include evidence relating to environmental impacts. Thus, at a minimum, Snyder requires a much broader review of the evidence below than required under prior authorities.
Second, as described above, the absence of written findings or a reliance on written findings necessarily forces circuit courts to “re-weigh” evidence because they are provided no indication of what “weight” a local zoning board assigned to the evidence in the first instance. For example, a local zoning board may hear expert testimony in opposition to a rezoning but, when denying the rezoning, may rely only on evidence introduced by opposing neighbors which is neither competent nor substantial.26 Under Snyder, a reviewing circuit court may uphold this decision because the record contained expert testimony, even though the local board did not rely upon or assign any “weight” to this expert testimony.27 This type of review bears little resemblance to the review of quasi-judicial decisions described in Irvine or Sunbelt Equities.28
Third, the result of circuit court review without findings is that rezoning outcomes are afforded great deference. If the record contains any evidence supporting the outcome, it will most likely be upheld.29 As a practical matter, the requirement that the evidence be “competent and substantial” does not diminish the deference given the decision. The tests to determine whether evidence is either competent or substantial in this context can hardly be described as “bright line” tests.30 Lay witnesses have been held competent to testify on issues such as compatibility of uses and affects on property values.31 The prohibition on “re-weighing” evidence clearly makes it difficult for circuit courts to determine that evidence is not “substantial.”32
Finally, the result of this deferential review is that local zoning boards actually place themselves at a disadvantage if they adopt written findings. If, indeed, a reviewing circuit court must uphold a rezoning decision if there is any competent and substantial evidence in the record which supports the outcome, then why would a local board ever wish to limit the potential grounds for its decision by specifically identifying them? If a board relied on the testimony of a traffic expert in opposition to a rezoning and ignored the testimony of an environmental expert also in opposition, why would it ever limit its potential grounds on review to only the traffic expert? Clearly there is no incentive for local zoning boards to adopt written findings explaining the basis of its decisions.33
Conclusion
If, as the Florida Supreme Court held seven years ago, rezonings are quasi-judicial decisions, then they must be subject to the requirements applicable to such decisions, the most important of which is the requirement of written findings. These decisions also must be subject to a review which focuses on these findings and the actual decision, as provided in Irvine, rather than the outcome. Without such findings and the review described by Judge Zehmer in Irvine, circuit court review of rezoning decisions will continue to be a daunting task. The confusion wrought by the Snyder decision will be magnified as more local zoning boards start to view the adoption of written findings as placing them at a disadvantage on appellate review and begin omitting written findings from their decision-making process altogether. q
1 Landowners cheered because the Florida Supreme Court determined that rezoning decisions were quasi-judicial and agreed with the Fifth District Court of Appeal’s statement that, “since a property owner’s right to own and use his property is constitutionally protected, review of any governmental action denying or abridging that right is subject to close judicial scrutiny.” Snyder, 627 So. 2d at 474.
2 “The ‘fairly debatable’ test asks whether reasonable minds could differ as to the outcome of a hearing. If so, the court should sustain a county commission’s resolution.” Norwood-Norland Homeowners v. Dade County, 511 So. 2d 1009, 1012 (Fla 3d D.C.A. 1987) (citations omitted). The Florida Supreme Court first adopted the fairly debatable principle in City of Miami Beach v. Ocean Inland Co., 3 So. 2d 364 (Fla. 1941), and it applied the principle to zoning decisions as late as Nance v. Town of Indialantic, 419 So. 2d 1041 (Fla. 1982).
3 Snyder, 627 So. 2d at 476.
4 Id. at 472.
5 Haines City Community Dev. v. Heggs, 658 So. 2d 523 (Fla. 1995); Education Dev. Ctr., Inc. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So. 2d 106 (Fla. 1989); Metropolitan Dade County v. Section 11 Property Corp., 719 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1998); Board of County Commissioners v. Webber, 658 So. 2d 1069 (Fla. 2d D.C.A. 1995); City of Fort Lauderdale v. Multidyne Med. W. Management, 567 So. 2d 955 (Fla. 4th D.C.A. 1990).
6 Heggs, 658 So. 2d 523; Education Dev. Center, Inc., 541 So. 2d 106 (Fla. 1989); Manatee County v. Kuenel, 542 So. 2d 1356 (Fla. 2d D.C.A. 1989); St. Johns County v. Owings, 554 So. 2d 535 (Fla. 5th D.CA. 1989).
7 Florida Power & Light Co., No. SC 93940, 2000 Fla. LEXIS 1220, at *11.
8 Snyder, 627 So. 2d at 476.
9 “[R]equiring detailed findings of fact is manifestly helpful in assuring that administrative decisions are not the result of improper considerations.” Irvine v. Duval County Planning Comm’n, 466 So. 2d 357, 366 (Fla. 1st D.C.A. 1985) (Zehmer, J., dissenting).
10 “Without [detailed findings], the reviewing court would be compelled to grope in the dark and resort to guess work as to what facts the Board had found to be true and what facts alleged were not true.” Id. (Zehmer, J., dissenting) (quoting Laney v. Holbrook, 8 So. 2d 465, 468 (Fla. 1942)).
11 Metropolitan Dade County v. Blumenthal, 675 So. 2d 598 (Fla. 3d D.C.A. 1995); Multidyne Med. W. Management, 567 So. 2d 955 (Fla. 4th D.C.A. 1990).
12 “It has been repeatedly held by the courts of this state that in order to assure due process and equal protection of the laws, every final order entered by an administrative agency in the exercise of quasi-judicial functions must contain specific findings of fact upon which its ultimate action is taken.” Irvine v. Duval County Planning Comm’n, 466 So. 2d at 366 (Fla. 1st D.C.A. 1985) (Zehmer, J., dissenting) (quoting Gentry v. Department of Prof’l & Occupational Regulations, 283 So. 2d 386, 387 (Fla 1st D.C.A. 1973); Accord, e.g., Hickey v. Wells, 91 So. 2d 206 (Fla. 1957); Laney v. Holbrook, 8 So. 2d 465, 467 (Fla. 1942); Harvey v. Nuzum, 345 So. 2d 1106 (Fla. 1st D.C.A. 1977); Edwards v. Division of Beverage, Bd. of Bus. Regulations, 278 So. 2d 659 (Fla. 1st D.C.A. 1973); McCulley Ford, Inc. v. Calvin, 308 So. 2d. 189 (Fla 1st D.C.A. 1975); Ford v. Bay County School Board, 246 So. 2d 119 (Fla. 1st D.C.A. 1970); Powell v. Board of Public Instruction of Levy County, 229 So. 2d 308 (Fla 1st D.C.A. 1970); Polar Ice Cream & Creamery Co. v. Andrews, 150 So. 2d 504 (Fla. 1st D.C.A.1963); see also Sunbelt Equities, 619 So. 2d 996, 998 n.1, 1000-1002 (Fla. 2d D.C.A. 1993); City of Apopka v. Orange County, 299 So. 2d 657, 660 (Fla. 4th D.C.A. 1974).
13 Irvine, 466 So. 2d at 366 n. 5 (Zehmer, J., dissenting) (quoting McDonald v. Department of Banking & Fin., 346 So. 2d 569, 583 n. 12 (Fla. 1st D.C.A. 1977)).
14 Id. (Zehmer, J., dissenting) (quoting Laney v. Holbrook, 8 So. 2d 465, 468 (Fla. 1942)).
15 Id. (Zehmer, J., dissenting) “It is not sufficient that the cited findings merely be general conclusions in the language of the statute or ordinance because such conclusions provide no way for the court to know on judicial review whether the conclusions have sufficient foundations in findings of fact.” Id. (Zehmer, J., dissenting).
16 Id.; see, e.g., Lynch-Davidson Motors Inc. v. Calvin, 308 So. 2d 197 (Fla. 1st D.C.A. 1975); McCulley Ford, Inc. v. Calvin, 308 So. 2d 189 (Fla 1st D.C.A. 1975); Bill Kelley Chevrolet, Inc. v. Calvin, 308 So. 2d 199 (Fla. 1st D.C.A. 1975); City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th D.C.A. 1974).
17 Irvine, 466 So. 2d at 366 n. 5 (Zehmer, J., dissenting) (quoting McDonald v. Department of Banking & Finance, 346 So. 2d 569, 583 n. 12 (Fla. 1st D.C.A. 1977)).
18 Sunbelt Equities, 619 So. 2d at 998 n.1.
19 Snyder, 627 So. 2d at 471.
20 Compare the Florida Supreme Court’s statement in Snyder, 627 So. 2d at 471 (Fla. 1993), that, “while they may be useful, the board will not be required to make findings of fact [in quasi-judicial zoning decisions]” to Endnote 12, supra.
21 See Sunbelt Equities, 619 So. 2d at 998, n.1 (holding that written findings are beneficial in review of a rezoning); Irvine, 466 So. 2d at 365-366 (holding that written findings are required in review of a zoning exception); City of Apopka v. Orange County, 299 So. 2d at 660 (holding that written findings required in review of a zoning exception).
22 See Florida Power & Light Co. v. City of Dania, No. SC 93940, 2000 Fla. LEXIS 1220 (Fla. June 15, 2000); Leffler v. Sarasota County, No. 98-783-CA-01, 1998 Fla. Env. LEXIS 313, 99 ER FALR 45, (Fla. Cir. Ct. June 26, 1998).
23 See Florida Power & Light Co. v. City of Dania, No. SC 93940, 2000 Fla. LEXIS 1220 (Fla. June 15, 2000); Section 11 Property Corp., 719 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1998); Blumenthal, 675 So. 2d 598 (Fla. 3d D.C.A. 1995).
24 See Id.
25 See Irvine v. Duval County Planning Comm’n, 466 So. 2d 357 (Fla. 1st D.C.A. 1985) (Zehmer, J., dissenting). See also cases cited supra note 16.
26 Lay opinion or citizens’ “nonexpert” testimony may form the basis of competent and substantial evidence provided that it is based on facts. See Metropolitan Dade County v. Blumenthal, 675 So. 2d 598 (Fla. 3d D.C.A. 1995); Miami-Dade County v. New Life Apostolic Church of Jesus Christ, Inc., 750 So. 2d 738 (Fla 3d D.C.A. 2000).
27 Florida Power & Light Co. v. City of Dania, No. SC 93940, 2000 Fla. LEXIS 1220 (Fla. June 15, 2000); Section 11 Property Corp., 719 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1998); Blumenthal, 675 So. 2d 598 (Fla. 3d D.C.A. 1995); Multidyne Med. W. Mgt., 567 So. 2d 955 (Fla. 4th D.C.A. 1990).
28 Irvine v. Duval County Planning Comm’n, 466 So. 2d 357 (Fla. 1st D.C.A. 1985) (Zehmer, J., dissenting), approved, 495 So. 2d 167 (Fla. 1986), adopted after remand, 504 So. 2d 1265 (Fla. 1st D.C.A. 1986); Sunbelt Equities, 619 So. 2d 996 (Fla. 2d D.C.A. 1993).
29 See Florida Power & Light Co. v. City of Dania, No. SC 93940, 2000 Fla. LEXIS 1220 (Fla. June 15, 2000); Section 11 Property Corp., 719 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1998); Blumenthal, 675 So. 2d 598 (Fla. 3d D.C.A. 1995); Multidyne Med. W. Mgt., 567 So. 2d 955 (Fla. 4th D.C.A. 1990).
30 “Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclu-sion. In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are aware of the familiar rule that in administrative proceedings the formalities and the introduc-tion of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent, the ‘substantial’ evidence should also be ‘competent.’” (Citations omitted.) DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957); Pollard v. Palm Beach County, 560 So. 2d 1358 (Fla. 4th D.C.A. 1990).
31 Section 11 Property Corp., 719 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1998); Blumenthal, 675 So. 2d 598, 607 (Fla. 3d D.C.A. 1995); Sunbelt Equities, 619 So. 2d 996 (Fla. 2d D.C.A. 1993); Multidyne Med. W. Mgt., 567 So. 2d 955, 957 (Fla. 4th D.C.A. 1990).
32 Florida Power & Light Co. v. City of Dania, No. SC 93940, 2000 Fla. LEXIS 1220 (Fla. June 15, 2000).
33 This result is contrary to the explicit reasoning in Irvine that, “[t]o meet due process requirements, it is necessary that the agency set out detailed facts found from the evidence so that a court authorized to review the matter on certiorari can first determine whether or not the facts found by the agency constituted lawful grounds for its action and, then, determine whether the evidence supports the findings.” Irvine, 466 So. 2d at 366 (Zehmer, J., dissenting).
T.R. Hainline, Jr., is a shareholder at Rogers, Towers, Bailey, Jones & Gay in Jacksonville. He has exclusively practiced land use and zoning law in Jacksonville since 1983. Mr. Hainline earned his law degree from Duke University in 1983 and received his A.B. from Duke University in 1980 (magna cum laude).
Steven Diebenow is an associate at Rogers, Towers, Bailey, Jones & Gay in Jacksonville. He has practiced in the environment and land use department since joining the firm from Senator Bob Graham’s staff in 1996. Mr. Diebenow received his law degree from the University of Florida in 1994 (with honors) and his B.S. from the University of Florida in 1991.
This column is submitted on behalf of the Environmental and Land Use Law Section, Richard Hamann, chair, and Melissa P. Anderson, editor.
