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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

Environmental & Land Use Law

In Pleasures II v. City of Sarasota, 832 So. 2d 185 (Fla. 3d DCA 2002), the Second District Court of Appeal reached the unsurprising conclusion that municipalities do not have the authority to confer certiorari jurisdiction on the circuit courts, and that even if such authority existed, it would be improper to use certiorari to review an administrative decision that was not quasi-judicial in nature and procedure. This article will quickly review the decision and then address the more pressing question of how local government can establish local administrative procedures that will properly receive certiorari review—a valid and valuable goal for reducing the time and cost of resolving conflicts over local administrative actions. It will then examine some of the examples of quasi-judicial proceedings employed by Florida local governments.

Pleasures II involved the City of Sarasota’s denial of a business permit to operate an adult-use business. Under the ordinance, the decision was made by the manager of the department of building, zoning, and code enforcement, but was not subject to a hearing, nor was a written decision required. The ordinance also provided that appeal of the decision should be by certiorari in the circuit court, which became the focus of the Second District’s ruling. The court rejected arguments that municipal authority to confer jurisdiction in the circuit court might be found in the Municipal Home Rule Powers Act, in “residual” authority from the pre-Home Rule F.S. §176.02 (which formerly covered municipal zoning and provided for appellate authority from acts of the board of adjustment), or in current F.S. §26.02, which provides for certiorari appeal from the final administrative acts of local code enforcement boards.1

The decision applies equally to counties (charter or not) and cities. The court found that the Florida Constitution’s Article V requirements that jurisdiction of the circuit court be by general law and be uniform throughout the state precluded local governments from creating certiorari jurisdiction by ordinance. The city’s logic would allow each local government in Florida to create jurisdiction, a result clearly inconsistent with the constitution.2 Perhaps more importantly, the court also pointedly noted that certiorari review was inappropriate to the underlying decision in any case, for “when an executive makes a decision without conducting a hearing, there is nothing for the circuit court to review.”3 Thus, even if the local government had authority to confer jurisdiction in the circuit court to review local decisions, it would be improper to use that authority to provide for a certiorari review of an administrative decision that was not quasi-judicial in nature.

It is unsurprising that the City of Sarasota or any other local government would want to establish certiorari as the means by which a local administrative decision was reviewed. The alternative—a de novo attack for declaratory or injunctive relief—is time-consuming and expensive: Motion practice, discovery, hearings, and the need for a trial combine to make litigating de novo attacks on local administrative issues extremely unattractive. Certiorari review, by comparison, has a short fuse (the petition must be filed within 30 days of the action), no discovery, and a decision based on the record and briefs, perhaps without even a formal hearing on the writ. The standard of review is whether the decision comported with the applicable law—strict scrutiny of the findings, due process afforded, and application of the law—and whether it was supported by competent, substantial evidence—deferential review of the administrative fact finding and weighing of evidence.4

There is a simple path to creating certiorari jurisdiction over a local decision: Local ordinances simply need to provide an administrative decision-making process that terminates in a quasi-judicial hearing.5 The question for the local government attorney (and the local commission) then becomes “how do I draft an administrative procedure that results in a proper quasi-judicial hearing?” There are two interrelated aspects to this: the structure itself (who holds the quasi-judicial hearing), and then the process to be used.

Enumerating all of the procedural requirements of quasi-judicial hearings would take more space than is available here. A quick review of basic principles is in order. The requirements of a quasi-judicial hearing were well laid out by the Third DCA in Jennings v. Dade County, 589 So. 2d 1137, 1340–41 (Fla. 3d DCA 1991):

Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure. Nonetheless, certain standards of basic fairness must be adhered to in order to afford due process. Consequently, a quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. A quasi-judicial hearing generally meets basic due process standards if the parties are provided notice of the hearing and an opportunity to be heard. In quasi-judicial zoning hearings the parties must be able to present evidence, cross-examine witnesses and be informed of all of the facts upon which the commission acts.

In addition, the hearing must be fair and impartial.

Breaking this down, we find the following requirements for a quasi-judicial hearing:

Notice. The affected parties must have notice of the hearing. In most regulatory matters, informing the applicant by letter of the date, time, and place will be sufficient; if a number of parties are affected, the notice may need to be public.6

Hearing. Quasi-judicial hearings can be very informal and in fact might simply consist of a meeting with the decisionmaker.

The rules of evidence need not apply; verbal statements can be taken without oaths or cross-examination in many cases, hearsay can be admitted, and documents need not be original or authenticated.7 The record—whether written or testimonial—must be present or made at the hearing and the parties must be able to comment on the evidence or to introduce contrary evidence.

Written decision. The decision must be based on the record as it is produced at the hearing, and should include an analysis of the applicable statutes, ordinances, regulations, and policies as well as the facts. This is a critical element for effective record review, and a summary decision (“The permit is denied.”) is insufficient.8 The issuance of a written decision also clearly identifies the date from which the 30-day window to attack the decision begins.

Fairness protections. This requires an unbiased decisionmaker, which in turn requires protecting the decisionmaker and the process from ex parte contacts and from political influence.9 It also limits the roles that the local government’s attorney or other representative can play.10

The fact that political bias and ex parte contacts taint the process creates significant issues when the decisionmaker in a quasi-judicial hearing is an elected official or political appointee who does not enjoy job protection. In the case of an elected official, prohibitions on ex parte contacts limit the ability of citizens to have access to their representatives,11 and, for elected officials or at-will appointees, making an impartial decision difficult, or even impossible, in an arena where prior political positions, public notoriety or other political factors bear on the decision.

That said, there are a number of people or bodies before whom a local ordinance might put a quasi-judicial hearing to resolve local administrative matters. The local commission might sit as a review panel, as it must under Florida law in the case of quasi-judicial rezoning decisions.12 Having local department heads or a body of local administrators hold the hearings in the case of a dispute could also be provided, but this raises its own issues, as we will see. Finally, a local administrative board or hearing officer system could be set up. To better demonstrate how some of these options could work we will now look at three examples of local quasi-judicial decisionmaking and how they have been viewed by reviewing courts under certiorari.

Staff Decisions in Charlotte and Lake Counties

The recent case of Evergreen the Tree Treasurers, et al. v. Charlotte County, et al. ,
810 So. 2d 526 (Fla 2d DCA 2002), indicates on one hand how local administrative procedures can become quasi-judicial based on the so-called “functional analysis.” It also should serve as a cautionary example to local government attorneys. In Evergreen, a decision involving application of the county’s tree ordinance was challenged by cert and also for a temporary injunction.13 The Charlotte County plat approval process provides that a development review committee (DRC) made up of the staff of various departments makes final decisions regarding certain project approvals after meeting with the applicant and reviewing the application and agency comments.14 The DRC approved a site plan for an affordable housing complex after one of its regular meetings or hearings. A group of opponents attended, but were not allowed to present evidence during the “regular” discussion, and only afforded a few minutes after the applicants had discussed the project with staff.

The opponents filed for a writ of certiorari and also for a temporary injunction to halt the construction. At the injunction hearing, the circuit judge took testimony from staff regarding the nature of the procedure and the decision, then denied the injunction and also denied (rather than dismissed) the writ. The judge also found that the DRC meeting was not a “public hearing” for the purposes of the Sunshine Act, and that the DRC was acting in a “staff” role, rather than in a quasi-judicial role. The petitioners then appealed the denial of the writ.

On review, the Second DCA applied the “second tier” approach to reviewing a lower court decision on certiorari, limiting its inquiry to whether the lower court provided procedural due process and applied the law correctly. It found that the Sunshine Law applies to meetings of the DRC, because the staff had been delegated fact-finding and decision-making authority over the matter (implying that the Sunshine Law and concomitant public hearing requirements will apply any time a local administrative decision is made by a staff committee). The court also found that the circuit court had violated due process requirements by converting or mixing the de novo hearing on the injunction and the hearing on the writ without giving the petitioners notice that the writ would be considered. The district court further noted that circuit court applied the wrong remedy: Given that it had found the decision not to be quasi-judicial, the proper approach would have been to dismiss rather than deny the writ, giving the petitioners leave to file a declaratory action instead. However, the court, citing Snyder, also determined that the DRC decision was quasi-judicial because it involved making findings of fact and applied a general rule.15 Finally, the court found that though the cert petition had merit when filed, it was now moot, as the development had proceeded under the original order.

While many observers thought Evergreen departed from the norm, the Fifth District Court of Appeal gave a substantial hint in Lyon v. Lake County, 765 So. 2d 785 (Fla. 5th DCA 2000), that it saw staff review committees that rendered final decisions as subject to similar due process. The case began when county staff told Lyon to stop excavating his property and to submit a site plan to the county. He did so. Then, the travails began.

The county’s technical review committee (TRC) subsequently held pre-TRC meetings to discuss the site plan, but not to make a final decision. Only staff attended those meetings. The staff had no authority to make a final decision at those meetings, even if it wanted to do so.

The county subsequently held a formal TRC meeting, although the county had changed its name to “development review staff” (DRS) from TRC. The county had not yet formally changed the name by ordinance. The county attorney advised Lyon’s attorney of the meeting, which was also advertised in the local newspaper. Lyon’s application was approved.

Nonetheless, Lyon filed a suit, alleging meetings violated the Sunshine Act, F.S. §286.011, as public agency board meetings that must be open to the public, and minutes taken. The appellate court held the pre-TRC meetings were for information gathering. No substantive acts could or did take place. The Sunshine Act did not apply.

The court held that the Sunshine Act applied to the formal DRS meeting. It utilized a functional analysis by first concluding that due process applied because the DRS rendered substantive decisions. Lyon also alleged the newspaper notice for the DRS meeting violated the Sunshine Act. He said the community still knew the committee as the TRC, not the DRS. The court held that the purpose of the Sunshine Act is to notify the public of board meetings. The county attorney’s call to Lyon’s lawyer was sufficient notice.

The lesson of Evergreen, and, implicitly Lyon, is this: If the functional elements of a quasi-judicial hearing are present (hearings, application of policy to specific proposals)—even if the elements come from different ordinances or statutes—then a decision may be found to be quasi-judicial even if the statute or ordinance under which the action is taken does not provide for all of the elements of a quasi-judicial hearing. At that point, the additional due process protections of a quasi-judicial hearing will attach, and review will be by certiorari. The officials running the hearing must have the appropriate training; procedures must be tailored to the hearing and the form of the decision; and petitioners and opponents must be ready to build a proper record when going into the hearing.

Hillsborough County’s and Citrus County’s Hearing Officer Approach

Hillsborough County has addressed the problem of orderly decisionmaking and review in land use and related matters by implementing a comprehensive hearing officer and appeal board system. The hearing examiner system dates back to at least 1978, when it was used for hearing rezoning petitions, and was viewed as a success at improving the quality, consistency, and fairness of those decisions.16 Today, hearing examiners are the backbone of a system that ensures that applicants for development permits or orders have a process that terminates in a quasi-judicial hearing that can be appealed by certiorari.

The land development code provides for the appointment of land use hearing officers, special masters for property rights cases, and a hearing officer for phosphate mining issues (with special experience), as well as for a land use appeals board and several other specialty appeals boards.17 The land use hearing officers hear certain development order applications de novo, in which case appeals go to the land use board of appeals (LUBA). Standards for evidence and the conduct of the hearing are provided, including provisions for disqualification of a hearing officer. Appeals before the LUBA are based on the record, and the decision can either be affirmed or remanded for further actions. If the LUBA affirms the decision, the appeal is by “whatever way authorized by state law,”18 which in practice means by certiorari, unless the issue is consistent with the comprehensive plan, for which a de novo hearing under F.S. §163.3215 is the proper remedy.

In the case of applications for rezonings, the hearing officer hears the initial application and builds the record, which then goes to the board of county commissioners for a final decision based on the record. The commission can approve, deny, or send the application back to the hearing officer for further proceedings.19 Appeals from rezoning decisions are by certiorari under Snyder, again unless the issue is consistent with the comprehensive plan.

The hearing officers also hear appeals from the decisions of the zoning administrator on other permit decisions based on the application, the administrator’s written action on it, and oral argument. While the review is record based, the hearing officer has the authority to enter any decision that the zoning administrator could. This allows the hearing officer to directly correct permitting problems. Appeals from the hearing officer’s decision in these cases again is by “whatever way authorized by state law,” meaning certiorari.

The Hillsborough County approach seems to be very effective at addressing permitting issues. The LDC has extensive provisions covering the procedural aspects of the hearings or appeals, including standing, notice, conduct of the hearing, evidence, the requirement of a written decision, and the timing and avenues for appeal of the original decisions.20 While a number of appeals have reached the circuit court on certiorari, the only land development case to reach the district court of appeal in recent years involved a school siting’s consistency with the comprehensive plan.21 While the use of multiple types of boards and hearing officers may make some aspects of Hillsborough County’s approach too complex and expensive for smaller jurisdictions, the Hillsborough LDC is an example of how an effective and well designed hearing officer system can be established.

Citrus County is a smaller county that has a hearing officer process. It has been the subject of one litigation, and one other significant administrative reversal of a hearing officer decision, but the process appears to be working well. In Citrus County v. Florida Rock Industries, 726 So. 2d 383 (Fla. 5th DCA 1999), the Fifth District quashed a circuit court quashal of the county’s order on review of a hearing officer’s vested rights determination. FRI owned and operated a rock processing plant since 1955, and had mining leases on four sites. The predecessor to the owner of the lease lands had received a ruling, affirmed by the Fifth District in Citrus County v. General Portland, 380 So. 2d 603 (Fla. 5th DCA 1980), that the county must issue mining permits for the sites. No one ever applied, but FRI operated at least two of the sites since 1980.

FRI feared possible down-zoning of the parcels, so it applied for a vested rights determination. The code requires application to the county department of development services. If the applicant is dissatisfied, it may appeal to a hearing officer, who may decide the matter based on a review of the record and law, as opposed to de novo consideration under the Administrative Hearings Act, F.S. Ch. 120. Just as in a state agency action under the Administrative Procedures Act, F.S. Ch. 120, the hearing officer refers the case back to the department. Unlike a Ch. 120 hearing, however, the referral only occurs where the hearing officer disagrees with the department.22 Like a Ch. 120 agency, the department may reject finding of fact that are not based on competent substantial evidence or conclusions of law that are incorrect.23

The department granted the applications for two of the sites, but denied the other two. It found the county never issued development orders on the latter two. It found also that FRI never mined those two parcels.

FRI appealed the decision to a hearing officer. The hearing officer issued a recommended order holding that the judgment affirmed in Portland Cement was a development order, as well as a county easement for haul trucks. Moreover, he held that the four parcels were related for vesting purposes, and that FRI never abandoned those vested rights.24

The department reaffirmed its prior decision. It rejected the recommended order, holding the hearing officer reweighed the evidence and substituted his judgment for that of the department. It reiterated its conclusion that only two of the parcels were vested.

FRI sought certiorari review in circuit court. The circuit court quashed the department decision, and remanded to the department with an order to grant the vested rights determination for all four sites. The county sought certiorari review by the Fifth District Court of Appeal.

The Fifth District granted certiorari. It held that the department correctly treated the hearing officer’s recommended order as advisory, and not binding. The court further held the circuit court improperly reweighed factual findings by the department.

The Citrus and Hillsborough codes differ in a major manner. While Hillsborough’s code allows for de novo hearings by the hearing officers, Citrus only allows the hearing officer to review the record before the agency. This issue, of course, begs the question: What about Citrus’ administrative actions, which are not developed in a quasi-judicial hearing? Where is the applicant allowed to present a case and cross examine witnesses? The hearing officer, who in Hillsborough, as well as in the F.S. Ch. 120, APA process, conducts a de novo hearing or, at least, establishes the evidentiary record, is constrained to review a record that may not allow a due process hearing. Citrus’ process, multitiered as it is, and including a hearing officer in the mix, does not cure the Pleasures II appellate paradox.25


Pleasures II shows that many local governments in Florida must evaluate their administrative procedures. Any review that does not include a noticed, due process hearing is unlikely to be subject to certiorari review. For example, the Citrus County process would likely be reviewable by de novo declaratory and injunctive court action. No matter how many hearings are held, the absence of an opportunity for an evidentiary hearing, on due notice, eliminates certiorari. q

1 Pleasures II , 832 So. 2d at 188.

2 Id. at 188–189.

3 The Second DCA’s statement contrasts to the Supreme Court’s treatment of this issue in Broward County v. G.B.V. International Ltd. , 787 So. 2d 838 (Fla. 2001) (holding that written decisions are not required in most land use regulations, expanding the court’s earlier ruling in Board of County Commissioners v. Snyder , 627 So. 2d 469 (Fla. 1993)).

4 See City of Deerfield Beach v. Vaillant , 419 So. 2d 624 (Fla. 1982), Broward County v. G.B.V. International , 787 So. 2d 838 (Fla. 2001) (affirming Vaillant as the standard for a “second tier” review of a certiorari appeal). When the opinion of a tribunal (whether that tribunal is a circuit or county court) in a cert case is appealed, the standard shifts to determining whether the reviewing court afforded due process and applied the law properly; the lower body’s assessment of whether there was competent, substantial evidence in the record should not be reviewable except insofar as the decision shows that the lower court reweighed the evidence (which is a departure from the law).

5 It is critical that the local administrative process terminate in a quasi-judicial hearing, as the circuit court’s jurisdiction will attach only after all local administrative remedies have been exhausted. See generally Lucia Dogherty and Elliot Scherker, Rights, Remedies and Ratiocination: Toward a Cohesive Approach to Review of Land Use Orders after Board of County Commissioners v. Snyder, 24 Stetson L. Rev . 311 (1995); Robert Lincoln, Executive Decisionmaking by Local Legislatures in Florida: Justice, Judicial Review, and the Need for Legislative Reform , 25 Stetson L. Rev . 627 (1996).

6 Two rules need to be followed: First, affected parties need to be notified, and second, the notice procedure must be followed. See, e.g. , Webb v. Town of Hilliard , 766 So. 2d 1241 (Fla 1st D.C.A. 2000 (citing cases for proposition that an action is void ultra vires if it fails to follow statutory notice provision), but also see Jacksonville v. Huffman, et al , 764 So. 2d 695 (Fla. 1st D.C.A. 2000) (where boards may not have followed notice provisions in local ordinance but petitioners appeared and introduced evidence and did not plead prejudice at the lack of notice, determination that the action was void was improper). If the decision involves a development order, some courts have found that some kind of notice to any affected party must be provided to satisfy the requirements of §163.3215. See, e.g. , Das v. Osceola County , 685 So. 2d 990 (Fla. 5th D.C.A. 1997).

7 See , for example, the provisions regarding evidence in hearings under the Florida Administrative Procedures Act, Fla. Stat. §120.57(1).

8 While in G.B.V. , the Florida Supreme Court recently declined to recede from Snyder and require written decisions in rezoning or land use decisions that arise from the quasi-judicial proceedings before a city or county commission, Justice Pariente’s dissent in that case, the Second DCA’s opinion in Pleasures II , and historical practice show that a written decision is a both a due process requirement and an antecedent to effective review. The reason, clearly articulated by Justice Pariente in her dissent, is that “[w]ritten findings, however, are a critical ingredient in the review of quasi-judicial decisions. 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.” See also Lincoln, supra note 5, at 699, T.R. Hainline, Jr. & Steve Diebenow, Snyder House Rules? The New Deference in the Review of Quasi-Judicial Decisions , 74 Fla. B.J . 53 (Nov. 2000).

Justice Pariente also cited with approval Judge Zehmer’s opinion in Irvine v. Duval County —which originated as a dissent and after review by the Supreme Court and remand to the First District was adopted as the final opinion—which held in part that “ To 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 constitute lawful grounds for its action and, then, determine whether the evidence supports the findings.” Irvine v. Duval County Planning Comm’n , 466 So. 2d 357, 366 (Fla. 1st D.C.A. 1985) (emphasis added). Because procedural due process claims are still highly regarded by the federal courts, refusing to provide the element of a written decision may open a local government to attacks under 42 U.S.C. §1983, despite the Florida Supreme Court’s position in G.B.V. , on the grounds that federal due process requirements demand that a written decision be provided as part of the core protections needed in such procedures.

9 See Lincoln, supra note 5, at 687, citing Jennings v. Dade County , 589 So. 2d 1337 (Fla 3d D.C.A. 1991).

10 See Citrus County v. Florida Rock Industries , 726 So. 2d 383 (Fla. 5th D.C.A. 1999).

11 This has been a major issue in how Jennings has been interpreted, especially since rezonings were made quasi-judicial in Snyder.

12 See Fla. Stat. §166.041(c). The interplay of Florida’s ethics laws, which can limit the ability of an elected or appointed official to disqualify herself from a matter and the need to have a biased decisionmaker recuse herself is a major issue when quasi-judicial decisions are made before an elected board. See Lincoln, supra note 5, at 689-694.

13 A history of the decision and its repercussions was published in The Florida Bar’s Local Government Section newsletter, The Agenda , in June 2002.

14 According to the county, these were intended to be meetings at which the application could clarify information in the application so that the staff could make a ruling on it rather than a “hearing” at which the applicant would have to present evidence to support the application itself.

15 The court here fell into the trap of applying the “functional” analysis rather than looking to see whether the ordinance, either on its own or in conjunction with the requirements of the Sunshine Law, provided all of the requirements of a quasi-judicial hearing. Quasi-judicial hearings are quasi-judicial because the accoutrements of due process oriented hearings are provided by the statutes or ordinances that guide them; it is backward to determine that a decision is quasi-judicial because of its nature and then force the administrative body to provide the due process protections. See Lincoln, supra note 5, at 645–652 (discussing the problems of the functional analysis approach to determining whether an action is quasi-judicial and suggesting a more rigorous “structural” approach).

16 See Richard Brumback and Donald Cooper, Improving the Quality of the Zoning Administration Through the Use of Hearing Examiners, Growth Management Innovations in Florida (Westi Jo De Haven-Smith ed.).

17 Hillsborough County Land Development Code, Article 9.02-90.03 (2002). having special boards for landscaping appeals, for example, the LDC ensures that there is substantive expertise in the review agency.

18 Hillsborough County LDC, Article 10.05

19 Hillsborough County LDC, Article 10.03.

20 Hillsborough County LDC, Article 10.00-10.05

21 Lutz Lake Fern Road Neighborhood Groups, Inc. v. Hillsborough County and School Board of Hillsborough County , 779 So. 2d 380 (Fla. 2d D.C.A. 2000).

22 Florida Rock , 726 So. 2d at 384.

23 See, generally, id . at 384-85. See §2500H of the Citrus County Land Development Code.

24 Id . At 385.

25 In Black Diamond v. Citrus County , DOAH Case No. 01-1119, 01-1120, the county processed a case that was similar to FRI. The director of development services held a proposed use of a juvenile detention psychiatric facility was appropriate on property that was zoned for a psychiatric hospital. DOAH, acting as contract hearing officer to the county, recommended that the decision be reversed, after hearing oral argument, but no testimony. The record consisted of 40 documents filed with the department director. On review of the recommended order, the department director, in a September 12, 2001, letter, rejected certain conclusions of law by the hearing officer. At no point was there any evidentiary hearing or testimony taken. FRI indicates that it would not have been allowed.

Robert Lincoln practices in Sarasota with a focus on land use, environmental, administrative, and local government issues. He formerly was an assistant professor of urban and regional planning at Michigan State University and a senior research associate at the FAU/FIU Joint Center for Environmental and Urban Problems. Mr. Lincoln received his B.S. from New College of Florida and a M.S.P. and J.D., with high honors, from Florida State University.
Sidney F. Ansbacher practices environmental and land use law in St. Augustine and is a partner in the firm of Upchurch, Bailey and Upchurch, P.A. He received his B.A. from the University of Florida in 1981, J.D. from Hamline University in 1985, and LL.M. in agricultural law from the University of Arkansas in 1989. Mr. Ansbacher is immediate past chair of The Florida Bar Environmental and Land Use Law Section.
This column is submitted on behalf of the Environmental and Land Use Law Section, Maribel N. Nicholson-Choice, chair, and Robert Manning, editor.

Environmental & Land Use Law