Sunday, May 17, 2015

Scofflaw City Flaunts the Court’s Lack of Authority on Certiorari Review - Dougherty v City of Miami, 89 So.3d 963 (Fla. 3d DCA 2012)

In its third crack at this case, the Third DCA granted second tier cert and quashed the circuit court’s decision for violating the law of the case and its earlier mandate.  The issue in the original case dealt with the proper version of the code that should have been applied, and the extent of the authority of the City Commission on an administrative appeal.  The circuit court originally held, and the District Court upheld, that under the terms of the City Code, the City Commission (a) could not hear a site plan appeal de novo, but instead had to apply the record below, and (b) had to apply the original code under which an application had been made.

 On remand, the City Commission (via the City Attorney) decided that the Commission had the authority to re-open the hearing and hear new evidence and (believe it or not) to apply the new code – which it utilized to reduce the height of the development approval from 110 to 35 feet.  The developer challenged the decision, the circuit court determined that the City Commission applied the wrong law, and the Third District upheld the circuit court.

On remand a second time, the City Commission again held a de novo hearing and again imposed the 35 foot height limit.  When the developer challenged this “approval” by cert, the circuit court (inexplicably) denied relief with a PCA.  The developer again went back to the District Court, which held that the circuit court departed from the essential requirements of law by failing to enforce the law of the case against the City Commission.  Under the previous orders, the City could not conduct a de novo review, but had to apply appellate principles.  Under the applicable codes, the Zoning Board decision to approve the application at the higher height was supported by competent substantial evidence and legal.  The Commission’s application of a lower height was not only unauthorized, but inconsistent with the earlier decision and mandate. 

Given the limited nature of the Court’s authority under certiorari review – then what?  The District Court stated, “If we were able to direct the City Commission to affirm the Zoning Board’s determination, the result which would have occurred but for the City Commission’s erroneous de novo review almost eight years ago, we would do so.”  Is there really any question that we need statutory provisions for judicial review of local quasi-judicial decisions?

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