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The Crown Can Do No Wrong, Except Where It Does: The History, Development, and Basis of Legal Standards Applicable to Florida Local Government Zoning Decisions

Environmental & Land Use Law

The applicable legal standard of review of local government decisions is crucial. It can dictate whether the local government decision is upheld or even whether the action is merited. The predominant standard, the rational basis test,1 reflects a fundamental policy determination that standard upholds. Government decisions should be upheld if done in an objectively good-faith and defensible manner; otherwise, society would break down. The rational basis standard’s progeny, the fairly debatable rule, long held sway in Florida. The fairly debatable standard mirrors the rational basis test in upholding a decision if any “reasonable basis or fairly debatable basis” arguably supports the decision.2

Nonetheless, even the rational basis or fairly debatable test does not protect governmental decisions that are completely irrational. The legislative and judicial branches created numerous, far less deferential standards for certain governmental acts. The most well-known of these is the Snyder rule for quasi-judicial zonings.3 This article attempts to delineate the core Florida standards of zoning review, how and why they exist, what they mean, and, most significantly, the respectively related standard of review.

How Is Local Government Different?
Anyone who has survived grade school civics knows American society functions at three basic tiers: national, state, and local. Our Constitution places the federal government on top, pursuant to the Supremacy Clause4 of the Constitution and leaves to “the states” and “the people” those powers that are not reserved to the federal government.5 Whether one ascribes to the “uncooperative” or “cooperative” federalist model,6 those two levels of government enjoy generally understood allocations of authority.

Local government, however, generally enjoys only the authority that the state grants to it. Even if a local government wields “home rule” authority, the legislature or some other state level authority must first create, and then delineate, the existence and extent of that home rule power.7 American law governing the delegation of authority to local government stems from Dillon’s rule, which held that local government holds only expressly delegated authority; and Cooley’s rule, which maintains local government possesses certain inherent authority.8

Prior to the 1968 Florida Constitution, our state followed Dillon’s rule.9 The constitution at art. VIII, §1, authorized home rule authority for both municipalities and counties. The 1973 Florida Legislature passed the Municipal Home Rule Powers Act, codified at F.S. Ch. 166. A leading article summarized the act’s impact as “dictat[ing] that local governments should be allowed to act if not clearly directed otherwise by the state.”10

Counties’ home rule authority is more nuanced. Article VIII, §1(c), authorizes “charter” and “noncharter” counties. Noncharter counties may exercise “all powers of self-government not inconsistent with general law, or with special law approved by vote of the electors.” Charter counties may enact ordinances that are “not inconsistent with general law.”11

The constitution confers on noncharter counties’ authority “as is provided by general or special law.”12 F.S. §125.01 allows noncharter counties to perform acts that are “not inconsistent with the law,” “are in the common interest of the people of the power,” and are “not specifically prohibited by law.”

The law of preemption and of conflict is complex.13 Nonetheless, our state’s exploding population and related burdens lead local governments to test the limits of their authority. This interplay requires courts and administrative authorities to examine local government acts under a myriad of lenses.

The Rational Basis Test
As stated above, the most well-established legal standard of review of a governmental action is the “rational basis” test. The U.S. Supreme Court created this standard in Munn v. Illinois, 94 U.S. 113, 132 (1877), stating: “If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative powers of the [s]tate. But if it could, we must presume it did.”

Applied to Zoning: The Fairly Debatable Test
Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), established the authority of local government to zone real property. The Euclid Court extended police power nuisance authority to uphold local government power to separate “higher uses” from other uses that were deemed to be incompatible. Euclid established the basic zoning right of municipalities against due process and equal protection challenges.

Nonetheless, “Euclidean zoning” established a stark zoning hierarchy with strict boundaries that is difficult to maintain when property owners seek either expansion or infill. The Court did not intrude on the locality’s legislative zoning plan. Rather, it held that the zoning plan would be upheld if it was “fairly debatable.” That rule was essentially equivalent to the rational basis test:

The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the police power. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delineation.. . . If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.

* * *

It cannot be said that the ordinance in this respect “passes the bounds of reason and assumes the character of a merely arbitrary fiat.”

* * *

[Prior cases cited] agree that the exclusion of buildings devoted to business, trade, etc., from residential districts, bears a rational relation to the health and safety of the community .14

Even though the fairly debatable rule is extremely deferential, limits exist. The rule upholds a zoning decision if any basis could exist to support it. The Supreme Court held in Nectow v. City of Cambridge, 277 U.S. 183, 188 (1928), that the zoning action must “bear a substantial relation to the public health, safety, morals, or general welfare.” The problem with applying this standard is self-evident. It is a recitation of the police power standard, giving no guidance to courts how to determine whether it is met.15

Florida’s Standard and Development of the Fairly Debatable Standard
Florida zoning law developed in steps. In fact, zoning was discretionary until 1973.16 One early Florida Supreme Court decision upheld a zoning ordinance that did not entirely zone the City of Miami.17 Chief Justice Davis’ concurring opinion argued that a zoning ordinance must be “comprehensive” and governed by a plan.18

The impact of the 1926 Euclid decision is apparent when we compare one 1925 Florida decision with another that followed Euclid. One year before Euclid, the Florida Supreme Court struck a zoning ordinance in State ex rel. Shad v. Fowler, 105 So. 733 (Fla. 1925). A Jacksonville ordinance prohibited grocery stores in an area set aside for residential use. The property owner fought mandamus compelling issuance of a building permit for a grocery store with apartments above.

The Shad court made several observations. First, it ruled the grocery store is neither a “menace to health [n]or a nuisance [n]or an unsanitary object.” The court stated further that the legislature could authorize a municipality under the Florida Constitution to regulate property use. Nonetheless, “when health, safety, morals, peace and comfort are not involved,” the municipality does not possess implicit general welfare powers to “curtail the uses of real estate in defined zones of a city.”19

The analysis changed after Euclid. The Florida Supreme Court in State ex rel. Helseth v. Dubose, 128 So. 40 (Fla. 1930), upheld Vero Beach’s zoning power to pass and to enforce a zoning ordinance consistently with Euclid. The court held enabling authority from the legislature expressly granted the City of Vero Beach general zoning powers. The court distinguished the general zoning authority upheld in Euclid from the application of zoning authority, which cannot be arbitrary or unreasonable, and must bear a substantial relation to the public health, safety, and welfare. The court struck the zoning action, denying a county jail, as violating even that deferential standard.

The 1939 Florida Legislature freed up local government zoning authority. As the Shad Court ruled, Florida courts previously held that zoning powers express legislative authority. The 1939 legislature passed the General Zoning Statute,20 which created general enabling authority to municipalities to enact comprehensive zoning codes.

The next major step occurred when the Florida Supreme Court adopted the fairly debatable standard, in City of Miami Beach v. Ocean & Inland Co., 3 So. 2d 364 (Fla. 1941). It expressly refused to “substitute its judgment for that of the city council.”21 The ordinance was upheld as consistent with the “general welfare” and “not so burdensome that it contravenes the organic inhibition against deprivation without due process.”22 The Florida Supreme Court most clearly stated that standard in City of Miami Beach v. Lachman, 71 So. 2d 148, 152 (Fla. 1953): “[A]n ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.”

The number of zoning codes in Florida exploded after the 1939 legislation. The fairly debatable standard only increased this expansion. Only larger cities successfully zoned prior to the 1939 legislation, due to express authority to those cities in legislative enactments. 1953, zoning ordinances were widespread in Florida.23 One Florida commentator complained that the fairly debatable rule created a virtually unrebuttable presumption. Professor Floyd Wright recommended less deference by Florida courts to local government in order to protect private property rights.24

Richard Babcock’s landmark book, The Zoning Game,25 went much further than Wright. Babcock questioned the inherently political nature of local zoning and recommended that each state promulgate zoning enabling acts with detailed procedures. The author hoped that exacting criteria would minimize the understandable pandering to the crowd by local officials.

Babcock would require a zoning applicant and hearing body to meet whatever standards that were set in the state’s enabling act. In general, procedural due process in an administrative hearing requires only notice and an opportunity to be heard.26 Nonetheless, Florida courts have long required zoning bodies to meet procedural steps in both statute and local code.27 State criteria would add another layer of procedural protections.

Babcock’s most sweeping proposal was a central, specialized zoning review board. He argued that neither lawyers nor judges were knowledgeable enough in zoning issues. That day has clearly passed. Nonetheless, The Zoning Game led the movement toward less deferential review of local zoning decisions. Babcock’s law partner, Fred Bosselman, took the next steps, and led the one following that. Bosselman’s The Quiet Revolution in Land Use Control28 studied zoning in several states in crafting proposed model zoning legislation. Bosselman utilized much of the book’s recommendations in the American Law Institute’s Model Land Development Code.29

Bosselman directly influenced sweeping changes in Florida and worked with state officials who developed the Environmental Land and Water Management Act of 1973 (ELMS I).30 ELMS I incorporated art. 7 of the model code in creating state level review of Developments of Regional Impact and Areas of Critical State Concern.31 The fairly debatable rule treated rezonings as legislative. Nonetheless, several decisions called this into question. The Florida Supreme Court held in Schauer v. City of Miami, 112 So. 2d 38, 839 (Fla. 1959), that a rezoning of all or much of a community was legislative. The court did not distinguish large from small rezonings. Most decisions continued to use the legislative fairly debatable test. The Third and Second district courts of appeal chipped at this rule in site-specific rezonings. Coral Reef Nurseries, Inc. v. Babcock Co., 410 So. 2d 648, 652-653 (Fla. 3d DCA 1982), explicated what made a hearing quasi-judicial:

[I]t is the character of the administrative hearing leading to the action of the administrative body that determines the label to be attached to the action….[It] contains the safeguards of due process, a fair opportunity to be heard in person and through counsel, the right to present evidence, and the right to cross-examine witnesses; and it is the existence of these safeguards which makes the hearing quasi-judicial in nature and distinguishes it from one which is purely legislative.32

The Second District Court also held that site-specific rezonings were quasi-judicial.33

The Snyder Rule
Snyder ended all debate. The Fifth District Court of Appeal’s sweeping opinion in Snyder v. Bd. of County Comm’rs, 595 So. 2d 65 (Fla. 5th DCA 1991) ( Snyder I), quashed by Bd. of County Comm’rs v. Snyder, 627 So. 2d 469 (Fla. 1993) ( Snyder II ), uprooted zoning law in Florida over a relatively tiny parcel. The Snyders sought to rezone their half-acre parcel from single-family to multi-family. The county commission decided without findings.34 The Snyders appealed. The circuit court denied certiorari, and the Snyders appealed to the Fifth District Court of Appeal.

The Fifth District functionally analyzed the nature of the process similarly to the Coral Reef court. The court led with an exhaustive explication of private property rights protections under Anglo-American law.35 I t then examined legislative and quasi-judicial functions of local government. In addition to a Coral Reef -like functional analysis, the court made a blunt assessment of the political side of rezonings:

[R]ezoning is granted not solely on the basis of the land’s suitability to the new zoning classification and compatibility with the use of surrounding acreage, but, also, and perhaps foremost, on local political considerations including who the owner is, who the objectors are, the particular and exact land improvement and use that is intended to be made, and whose ox is being fattened or gored by the granting or denial of the zoning request.36

The Snyder I court distinguished between larger, legislative acts and quasi-judicial rezonings:

Initial zoning enactments and comprehensive rezonings or rezonings affecting a large portion of the public are legislative in character. However, rezoning actions which have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as a policy application, rather than policy setting, are in the nature of executive or judicial or quasi-judicial action but are definitely not legislative in action.37

The Snyder I court established a burden-shifting process in quasi-judicial standards that Snyder II generally upheld but for one significant change. Snyder I set the following process:

1) The applicant bears the initial burden of proving compliance with procedural requirements of the ordinance and consistency with the comprehensive plan.

2) If the applicant meets its initial burden, the burden shifts to the opponent or local government show “by clear and convincing evidence that “a specifically stated public necessity requires a specified, more restrictive, use.”38

Snyder II generally upheld the initial applicant burden. The court rejected the severity of the government’s burden in Snyder I. In its place, the Supreme Court held the denying government had to establish that maintaining the existing zoning accomplished a legitimate public purpose. Snyder II explained: “The board will now have the burden of showing that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable.”39 T he most significant change was rejection of the clean and convincing evidence standard, replacing it with a competent substantial evidence standard.

As a practical matter, virtually all jurisdictions in Florida treat all site-specific rezonings as quasi-judicial after Snyder II. Regardless, the Fifth District Court of Appeal subsequently noted in dicta that a site-specific rezoning might still be legislative if it concerns a large enough parcel and affects enough persons. Dicta in City of New Smyrna Beach v. Andover Dev. Corp., 672 So. 2d 618, 620, fn. 2 (Fla 5th DCA 1996), the court observed that a planned unit development rezoning of 55-acre parcel that attempted to change a 20-story to a 29-story building raised the question whether the act was legislative. It was a distinction without a difference there. The developer lost even under less deferential review. The decision reminds us, however, that Snyder II only created a split of standards between truly legislative and quasi-judicial rezonings. It did not mandate quasi-judicial review in all rezonings.

This article does not intend to cover all causes of action concerning zoning law. Rather, the purpose is to remind the reader of the sources of zoning authority, the development of the principal standards of review, and the reasoning behind those standards. Most practitioners can recite the standards themselves. A reminder of why they exist better enables us to use them and to use them appropriately.

1 See Munn v. Ill., 94 U.S. 113, 132 (1877) (“If no state of circumstances could exist to justify such statute, then we may declare this one void, because in excess of the legislative power of the [s]tate. But if it could, we must presume it did.”).

2 Wolff v. Dade County, 370 So. 2d 839, 842 (Fla. 3d DCA 1979).

3 Bd. of County Comm’rs v. Snyder, 627 So. 2d 469 (Fla. 1993) ( Snyder II ).

4 U.S. Const. art. VI, §2.

5 U.S. Const. amend. X.

6 See, e.g, Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and “Dual Sovereignty” Doesn’t, 96
Mich. L. Rev. 813 (1998).

7 See generally National League of Cities, Local Government Authority,

8 Compare Clinton v. Cedar Rapids and the Missouri River R.R., 24 Iowa 455 (1868), and Delegation of Powers by Legislature Municipal Powers Under Dillon’s Rule, 2 McQuillan Mun. Corp. §4:11 (3d ed.) (updated July 2015), with People v. Hurlbert, 24 Mich. 44, 95 (1871) (Cooley, J., Conc.).

9 See Joni Armstrong Coffey, The Case for Fiscal Home Rule, Fla. B. J. 54 (Apr. 1997).

10 J udge James Wolf & Sarah Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, Fla. B. J. 92 (June 2009).

11 F la. Const. art. VIII, §1(g).

12 F la. Const. art. VIII, §1(f).

13 Id.

14 Euclid, 272 U.S. 388-392 (emphasis added).

15 See, e.g., ABG Real Estate Dev. v. St. Johns County, 608 So. 2d 59 (Fla. 5th DCA 1992) (notes that an ordinance’s recitation of police power as a standard constituted no standard at all).

16 Roy Cookston & Burt Bruton, Zoning Law, 35 U. Miami L. Rev. 581, 582, fn. 3 (1981) (accompanying text and authorities cited therein).

17 State ex rel. Henry v. City of Miami, 158 So. 2d 83, 84 (Fla. 1934).

18 Henry, 158 So. 2d at 84 (Davis, C.J., concurring).

19 Shad, 105 So. at 733.

20 Fla. Laws 1939 c. 19539.

21 Ocean & Inland, 3 So. 2d at 366.

22 Id. at 367.

23 Floyd A. Wright, Zoning Under the Florida Law, 7 U. Miami L. Rev. 324, 324 (1953).

24 Id. at 337, et seq.

25 Richard F. Babcock, The Zoning Game (1966).

26 Carillon Community Residential v. Seminole County, 45 So. 3d 7, 10 (Fla. 5th DCA 2010).

27 Board v. Lowas, 348 So. 2d 13 (Fla. 3d DCA 1977).

28 Fred Bosselman, The Quiet Revolution in Land Use Control (1972).

29 Model Land Development Code (proposed official draft) (1975).

30 Promulgated at then Fla. Stat §§380.012-10.

31 David Callies, Fred Bosselman and the Taking Issue, 17 F.S.U. J.L.U. & Envtl. L. 1, 8 (2001).

32 Coral Reef, 410 So. 2d at 652-653 (citing Harris v. Goff, 151 So. 2d 642 (Fla. 1st DCA 1963)).

33 See, e.g., Hirt v. Polk County Board of County Commissioners, 578 So. 2d 415 (Fla. 2d DCA 1991).

34 Snyder II, 627 So. 2d at 471.

35 Snyder I, 595 So. 2d at 69-70.

36 Id. at 73. The Snyder I court emphasized: “When rezoning actions are not subject to effective judicial review, the potential arises for abuse, favoritism, patronage, and arbitrariness.” Id. at 75.

37 Snyder I, 595 So. 2d at 78 (citations omitted).

38 Id. at 81. Snyder I and Snyder II also each initially included steps to determine if the denial effected a compensable taking. Snyder I placed the burden on the applicant. Snyder I at 820. The final opinion in Snyder II replaced the takings analysis with the remedy of quashal.

39 Snyder II, 627 So. 2d at 476.

Sidney F. Ansbacher is a senior partner at Upchurch, Bailey & Upchurch in St. Augustine. He is a former chair of the Environmental and Land Use Law Section of The Florida Bar.

This column is submitted by the Environmental and Land Use Law Section, Carl Eldred, chair, and Susan Roeder Martin, editor.

Environmental & Land Use Law