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Home My WebLink AboutDocumentation_Regular_Tab 09E_02/10/1994 I I .� ;�� '- VtLLAGE OF TEQUESTA � ' f'us� Officc R�x 3'7 3 • 3.57 Tcqucsta Dnvc �.�,""� �� Tcyucsta, Flonda 33469-0273 •(407) 575•6200 f � � ,�� Fax: (407) 575-6203 t � y o � �� s �� CD`1M January 27, 1994 John C. Randolph, Esq. Jones, Foster, Johnston & Stubbs, P.A. P.O. Drawer 3475 West Palm Beach, Florida 33402-3475 RE: Snyder Decision; Land Use, Zoning and Planning Dear Skip: Thank you for your letter of January 25, 1994, providing me with follow information on the important Snyder decision. I did forward your letter of November 22, 1993, and its attachments to the Village Council. I have received responses and inquiries from Councilmembers, mostly negative, about the impact of the Snyder decision. Additionally, I also forwarded a copy of your Navember 22, 1993, letter to the Clerk of the Board for both the Board of Adjustment and the Code Enforcement Board. I do not know whether the Clerk of the Board forwarded the same to the respective Boards for their consideration. Therefore, out of an abundance of caution, by copy of this correspondence, the members of the Board of Adjustment and the Code Enforcement Board are hereby informed of the i.mpact of the Snvder decision and the case of Jenninas vs Dade Countv. These new circumstances that we find ourselves having to operate under by virtue of the Snyder decision are unfortunate because everyday citizens, who have little understanding of government procedures to begin with, will now be confronted with a response from fellow citizens serving as Boardmembers along the lines of "on advice of Counsel, I am unable to discuss this case/application/matter with you." It just further frustrates the ability of citi2ens to have a say in the operations of their government. Nevertheless, we will abide by this Decision until such time as the law relating to quasi-judicial hearings is amended. John C. Randolph, Esq. Page 2- ---------------------- An extra step that I would recommend is that this matter be placed upon the agenda of each applicable Board for you to advise the Boardmembers and to answer any questions relative to the same when all members are gathered together for a meeting. As such, I will add the Snyder decision to the agenda of the February 10, 1994, Village Council Meeting for you to address the same and answer any questions of the Village Council. The Clerk to the Board of Adjustment and the Code Enforcement Board should do the same. Sincerely, / Thomas G. Bradford Village Manager TGB/krb c: Village Council, w/attachment Code Enforcement Boardmembers, w/attachment Board of Adjustment Boardmembers, w/attachment Scott D. Ladd, �Building Official, w/attachment JONES, FOSTER, JOHNSTON & STUBBS, P. A. ATTORNEYS ANO COUNSELORS FLAGIER CENTER TOWfA 606 SOUTH FLAOLER DW VE ��" �� EIEVENTN FLOOR L . � ` ' ��\ P. O. BOX ��76 , '�� Hcwr+r r. uu[NrHk iwnar e �uex�oea JOHN OLlJA 41oCRAC1(EN � \ • � �� lTEPMEN J. AUCAMV iCOTT l. McMUILEN WEST PAIAA BEACH, FLORIDA 3�402-�7 � .> 'iIACEY 6fAO�OTT1 JC�IN C. RANDOIPN AvCE A. CONM'AY JOHN C. MU � � '��:�, ViLLAGE 0 AU.IBON JOHNSTOM vAiiOAPET L. COOPEA AHDHEW A089 F�,c• �,o>>e�-,•sa - TEQUESTA �� EOWAHO qAI STEVEN J. NOTHAIAN � 11. lHUCE JO�+EB aEBECCAO. DOANE PETEi1 A. BACH9 '�• �p,�.�ys CNWI9TOP11EN S. DU1(E 0. CULVER BMITH ID �{ !1 .T i�� 3CpTT �. MAWKIN9 91ONEY A. BTUBB3, J0. 1A N Pµ1L C. M�OLfE 7MOFNTON 4 MEHAY ALIEN P. TOMUNSON (�� Jr1I t tY�.t•1f97 /E1ER 9. NOLTOH JOHN B. TNiMPER � �iLLAGE FETINEO YAAK D. KLE�HFEID 41CNAEL 0. WAL9H WRITER'S OIRECT UNE: , (,UAM A fOSTER ,„�„,�� T. �Z M ADAM$ WEAVER MANAGER S �j� OFFiCE �� °iCO"NeE` L MAHT�N FUNAOM/ ..`�� /2 lt� � ..� January 25, 1994 Mr. Thomas G. Bradford Village Manager Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469 RE: Village of Tequesta Snyder Decision; Land Use, Zoning and Planning Our File No. 13153.1 Dear Tom: I wrote you a letter on November 22, 1993, relating to the Snyder decision, a copy of which letter i enclose for your refex�ence. This matter and the subject of quasi-judicial hearings continues to be a matter of interest to local governmental councils, boards and commissions. Indeed, it is a matter of great importance and one in which the Council and all affected committees should be well advised. Of equal importance to the Snyder decision, is the case of Jennincrs v. Dade Countv, a copy of which I enclose. I call your specific attention to that portion of the decision which states as follows: "Ex parte communications are inherently improper and are , anathema to quasi-judicial proceedings. Quasi-judicial officers should avoid all such contacts where they are identifiable." Basically, a quasi-judicial officer, which would include anyone on a council or commission who is acting in a quasi-judicial as opposed to legislative capacity, should not allow himself to be lobbied. In other words, the information which is learned about a particular matter coming before the quasi-judicial body should be information gained at the public hearing, much the same way a judge would receive such information in open court. As a basic guideline, quasi-judicial matters are those which involve the Mr. Thomas G. Bradford January 25, 1994 Page 2 application of existing law to a particular matter as opposed to the enactment of legislation. As stated in Jenninas: "A judicial inquiry investigates, declares and enforces liabilities as they stand on present facts and under laws supposed already to exist. This is its purpose and end. . Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." In other words, a code enforcement board, in determining whether there has been a violation of the law serves as a quasi-judicial body, as does a zoning board of adjustment which entertains applications for variances. If they have not been already, members of the Council and boards or commissions subject to these laws should be made aware of their existence and application. Upon direction from you, I will be happy to go into this subject in more detail with either the Village Council and/or the affected boards or commissions. Sincerel Jo n C. Randolph JCR/ssm Enclosures J O N E S, F O S T E R, J O H N S T O N 8. S T U B B S, P. A. JONES, FOSTER, JOHNSTON & STUBBS, P. A. ATiORNEYS AND COUNSEIORS FI.AOLER CENTER TOWER 605 SOUTH FLAQIER dRIVE ELEVENTFI FIOOR {.APNY B ALEXANDEA JOHN pWa McCRACKEN P• O. BOX S,7S NENm' /. l,K/ENTNAL �TEpMEN J. AUCAMP ccorT �. uwuueH _ WEST PALM BEACH, fLORIDA 39402-J476 '�•�� TqACEY B�AG�O�Tt JONN C. M11OOl7M 407) 650-3000 M�� Kj�� OrCE A. COHWAr dOHN C. anU � 4AiqARET �. COOOEA AHOREW H088 FAX• (407)932-1454 �� ED'NARO D�AZ . BTEVEN J NOTHNAN 0. OqyC(,�� REBECCA O. WAME VETEi1 A{ACMB CNAiS�OPHEP S. OUKE D. CULVER yYITM ID ��'� BCOTT O. NAwKINS ��OHE1' A�TUl88, dR. �AUI C. WOIfE Tr�OpNTON M. NENaY AU.EN R. TOYUN9pN Tq7•1Mt PETER 9. MOITON JOHN Y. TWYiER M�ac e. �iafe�o ►np+�� r. w�t,sr+ WRlTER'3 DIRECT UNE: �T�o YiCHAEL T. KAAN2 N. ADA49 WEAYER WIl1LW A /O/�E11 Of COUMlEL L VkFTN ftANA6AN November 22, 1993 Mr. Thomas G. Bradford Village Manager Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469 RE: Village of Tequesta Snyder Decision; Land Use, Zoning and Planning Our File No. 13153.1 Dear Tom: I have enclosed a copy of the Snyder decision. Once you have read this case, I would be happy to discuss it with you in more detail. It is not as all encompassing as you have been lead to believe by others. Individual zoning requests relating to individual parcels of land wiil indeed, under the Snyder case, be treated as quasi- judicial matters. This does not mean, however, that zoninq legislation adopted by the Village which relates to zoning categories or which is more broad based than a zoning amendment relating to an individual property, is quasi-judicial. Those mattPrs are still legislative. This area of law has received quite a bit of attention lately and it is something that each of the Council members and members of boards and commissions of the Village should be aware. Indeed, where matters are of a quasi-judicial nature, those persons sitting �in a quasi-judicial capacity should act as a judge would act and should not have ex parte communications. In other words, the information relating to a particular application shall be that information which is gleaned during the public hearinq, just the same-�way as the judge would glean information durinq a trial. For example, in the consideration of a variance application, which is a quasi-�udicial proceeding, the members of the zoning commission should not allow themselves to be lobbied by any individual and Mr. Thomas G. Bradford November 22, 1993 Page 2 should not have ex parte communications relating to an application prior to the public hearing relating to the variance application. Please let me know if you would like me to advise the Council in regard to the status of the law in this area. Sincere hn . Randolph JCR/ssm � Enclosure � i n ei c C F!'1�C T�� c7 ,1 (� N N S T O N 8 S T U B B S, P. A. 'I.� � , I, � � - � �• _ � y J �. : n �� '' ' JENNINGS v. DADE COUNTY Fla 1337 Cl�e u Sa9 So2d 1�17 (F1aApp. S DUL H91) � ad to STONE, J., dissen�s with opinion, with ,� the , which LETI'S, HERSEY and GUNTHER, Milton S. JE'�TNINGS, AppeUant, ! � sub- � JJ., concur. ment, �' � very STONE, Judge, dissenting. DADE COUNTY and Larry ' ought I dissent for the reasons expresaed in my Schatzman, Appellees. � be al- ' diasent to the initial panel decision in this � Noa 88-1324, 88-1325. � kind aPP�I. s d� ' District Court of Appeal of Florida, w Third District. Q S[[YNUM6ERSYSTtM . �'s or :, T Aug. 6, 1991.' j istent �' i ,; On Aehearing Granted Dec. 17, 1991. ; � � Landowner petitioned for writ of cer- �_� Joseph HENN, Petitioner, tiorari to challenge trial court order which :� :�; �• dismiased Iandowner's count alleging due �� Julle SANDLER and Iris Sandter, P�S violabon ss result of ex parte com- ` �`��' R.espondents. munication between adjacent Iandowner's � also, _;,;� � lobbyist and county commissioners before ` :o. v. No.91-1634. , + 1 � �.� vote approving ase variance for adjacent i� District Court of Appeal of Florida, landowner, which gave to landowner leave 'oA t� � Fourth Distric� to amend complaint only against connty, as n°t and which denied motion to dismiss connt ' atutes, � Dec. 27, 1991. alleging nnisance as result of permitted � Llle� !r � �� Petition for writ of certiorari to the Cir- use. The District Conrt of Appeal, Nesbitt, �-; : cuit Court for Broward County; Lawrence J., held on rehearing that (1) landowner's L. Korda, Judge. timely petition activated common-law cer � �� H.T. Malone of Patterson Malone &�� u��On' t2� lobbqist's ex parte :: �_ order. Y , 9 commnnication could violate due process ,�� Gardiner, Fort Lauderdale, for petitioner. despite landownea's actual and constructive : �: he dis- Wayne Raplan of Kaplan & Gaylord, knowledge of ex parte communication; attd ;eeking � P.A., Boca Raton, for respondents. (3)landowner's prima facie case of e�c parte �-� i. c o n t a d s w o u l d g i v e r i s e t o p r e s u m p t i on o f � PER CURIAM. prejudice and shift burden to adjacent laad- ��' vG We grant the petition for certiorari and ��' �d cou�►tY to rebut the presump- '#� quash the trial court's order of May 24, �on. _+�;; j 1991. See Henn v. Sandler, 589 So.2d Quashed and remanded. - - ��': 1334 (Fla. 4th DCA 1991) (on motion for '��` :tion by � � ��S en banc). upon g�t of re~h�n concurring opinion �.� B ,;; �el deci- GLICRSTEIN, CJ., and L�.'1'TS and �"t`� ill other . • � , j rh GURITHER,, JJ., concur. i. Zoning and Ptanning �741 : � � �� e quash Laadowner's timely petition activated and for :.::° " O SCMMU14BfRSKTEM COIIlIDOI!-12W C8I'�70T'dI7 )1127Sd1CfdOII tA I"E- nel opin- �= T view trial court order wluch dismissed � ` }. ;�; � count zDeging ez parte communication be- i � t �, { tween adjacent laadowner's bbbyiat and f EY, `� county commissioners prior to approval of �� • )I '� , ' EdIwc's Not� The original opinion of Aug�st 6, tion bxauu it is mpaseded by tbe opinion oa �, y�� near. 1991 is withdrawn from bouna Motume publia- trhearia�. � 1 �. �#• 1 ��- �� ;�,� ; .1 f _ . _ . . . _Y _ . _. . . .. �� I � � � 1338 F�� 589 SOUT}iERN REPORTER, 2d BERIES � variance, which gave '� landowner leave to cross�xamine witneases, and be informed I amend complaint only against county and of all facts upon which commiasion scLa. , � to transfer matter to appellate division of � circuit court, and which denied motion to g, �nstitutbnal Ls�v �'278•2(21 � dismiss count alleging that use permitted Ez parte oommunication between laad- ' by variance constituted nuisance; order a�e�8 bbbyist and county commisaionera , was departure from essential requirements before they voted to approve uae variance of law and required plaintiff landowner to for landowner could vioiate due proceas � litigate putative claim in proceedinS that despite adjacent landowner's actual or cAn- i � could not afford relief reqnested. S��tive knowledge of communication and ! failure ta aubpoena lobbyist West's ``� Z. Zonjng and Planning �+741 F.S.A. Const Art. 1, § 9; U.S.C.A. Const� ' i. No impediment e�dated to exercise of �ends. 5, 14. �� jurisdiction over defendant landowner, in �� that common-law certiorari juris d ictian a'as 9. Adminlstrstive Law and P r o c e dure �;` activated by plaintiff landowner's timelY �314 � petition. Ex parte communications are inheren� ' + ly impmper and are anathema to quasi- �'' 3. Constitutional La�v �318(1) judicial proceedings; quasi judicial officer ��' Quality of due pra:eas required in qua- should avoid all such contacts where they � si jndicial hearing is not same as that to are identi�able. j!' which party to full judicial hearing is enti- tled. West's F.S.A. Const Art. 1, § 9; 10. Administrative Law and Procedure � U.S.C.A. Cons�Amends. 5, 14. s- 314 � , �, Occurrence of ex parte communication '� 4. Adminlstrative I.s.r and Procedure in quasi-judicial prnceeding dces not man- �311, 313 date automatic reversal- , . Quas'rjudicial proceedinSs are not oon- I trolled by strict rules of evidence and pro- 1�, Administrative La�v and Procedurc cednre. �314 Allegation of prejudice resulting from � 5. Constitutional La�v �318(1) e�c parte contacts with decision makers in I Quasi-judicial decision based uPon quasi judicial prnc�eding states cause of ac- record is not conclusive if minimal stan- tion. . - . - dards of due process are denied. Weat's ' F.S.A. Const Ark 1, § 9; U.S.C.A, Const 12. Adminiatrstive I.s�v and Procednre " ,, t Amends. 5, 14. s�814 Upon aggrieved party's proof that ea� � 6. Constitutional La�v �+318(1) �� {�, � � decision mak- Quasi judicial hearing generally meets ers in quas'rjndicial proceeding, its effect is , basic due process requirements if parties p�sumed to be prejudicial, unless defen- ; are provided notice of hearing and opporta- �nt proves contrary by competence evi- nity to be heaid. West's F.SA. Const Art. dence. West's F.S.A, § 90.304. 1, § 9; U.S.C.A. Const.Amends. 5. 14. 7. Zonins and Plsanln8 �'3b9 13. Constitat�ional I.a�v a- 818(1) `'. In quasi-jadicial zoning prooeedinSs� In determining prejudicial effed of ex patties mnst be abk to present evidenoe, parte commnnication allegedly violstin8 �� ; �: . �. .� �«. `�1 ]•1 ; , 4 ' 1 I --� I , - _-- ' �; � . � JENNING3 v. DADE COUNTI �• 1339 �fr C1te a� Se9 So.2d 1337 (F7a.App.I Dl�t. H!1) fO �ed d�e proceas in quasi-judicial proceeding, tri- owne�'s lobbyist and county mmmissioners 1 ; '` ��• ,,' � a� court should consider the following crite- before they voted to approve use variance j ;� ria: what was gravity of ex part,e commu- foc landowner, landoW�ner couid rely on any nication; whether contacts may have influ- favonble evidence prPSented during sdja- � :n land- � enced e►Bency's ultimate decision; whether cent landowner's case-in�chief, including � sioners party making improper contacts benefited that sdduced during crosa�xamination of � 3riance `' from agency's ultimate decision; whether adjac,ent landowner's witneases. West's .�rocess contenta of communications were unknown F.S.A. § 90.30d. or con. � W opposing part�e8� and whether vacating on and of agencq's deciaion on remand for new West'B proceedings would serve useful purpose. Const U West's F.S.A. Cons� Art. 1, § 9; U.S.C.A. � � Conat.Amends. 5, 14. John G. Fletcher, South Miami, for sppel- lan� R.obert D. Korner and Roland C. Robin- � x `�� 14. Countlea �+b8 son, Miami, Robert A. Ginsb �'8� CountY Allegation of prejudicial ex parte com- Atty., and Eileen Ball Mehta snd Craig H. :eren� munication in quasi judicial proceeding be- Coller, Ass� Countq Attys., for appellees. q�r fore coantq commission enables party to �fficer maintain original equitable cause of action Jcel V. Lumer, Miami, for The Sierra = they to establish its claim. Club as Amicus Curise. . 15. Counties �b8 Before BARKDULL,' NESBITT and •�� Once claim of prejudicial ex parte com- FERGUSON, JJ. � . munication in quasi-judicial proceeding be- i . fore county commission is established, of- ��' ' �tion � — � ' �� fending party will be required to pmve ON REFiEARING GRANTED '� � absence of prejudice. t NESBII'T, Judge. i ; 16. Zoning and Planning �678 The issue we confront is the effect of an •�� Landowner's prima f�cie case of ex �� upon a decision ' parte ooatact between adjaceat land- emanating from a qnasi-jndicaal proceeding �. fi'om owner'a lobbyist and county commissioners of the Dade County Commission. We hold i ' ers in beforE the voted to a rove use variance � �� Y PP that apon proof that s quasi-judic,ial officer �� of ac- for adjacent landowner would give rise to �� ntact, a gresnmption d presumption of prejudice. West's F.S.A. a �, Pursuant to section 90.304, Florida § 90.304. Statntes (1989), that the contact was preju- �_��; ,� Edure diciaL The sggrieved party wi11 be entitled :� G ' 17. Zontng and Planning �679 tA a new and complete he.aring before the '-�_".� at ex Landowner's prima facie case of ex aommission nnless the defendant proves ��s mak- parte contacta between adjacent land- that the cammnnicai�oa wxs aot, in fact, '�� ownei'a lobbyist and commissioners before prejndiaal. For the reasons tbat follow, , T : : ' iefen- they voted to approve use variance for we qnash the order nnder review with di- , e �. adjacent landowner would shift biu�den to rections. ' oounty and adjac�nt landowner to rebut ��ndent Schatzman applied for a var �.' ;� presumption of prejudice. West's F.S.A. � §�� iance to permit him to operate a quick o�7 change business on his properiy adjacent to � j of ex , 1 � �� d Planning e'�679 that of petitioner Jennings. The Zoning ! To rebut presumption of prejudice Appeals Board granted Schataman'a re- '. ; �� : from �ac parte contacta between land- quest. The oonnty cammisaion npheld the ;j ; .;•;�.. � . • lud�e Bar)cdtiill partidpated ln decision oniy. �`+; . ' �° • � � i _ . M , '� � 1340 �• 589 SOUTHERN REPORTER. 2d SERIES i board'a decision. Six days prior to the since the content of ex parte contacts is not I commission's acdon, a lobbyist Schatzman part of the existing record, such review . � employed Lo asaist him in connection with would prohibit the sscertainment of the �e Proceedings regiatered his identity as contacts' impact an the commisaion's deter � required by section �11.1(s) ° did not�t so radically altering therelief avail ble to I Connty Ordinances. Jenninga Jenninga that it is the functional equivalent ` tempt to determine the content of any c�m- munication between the lobbyiat and the of �9u�g him to litigate in a differeat � commisaion or otherwise challenge the pro- forum. Thus, Jennings' timely petition ac- ! priety af any communication prior Lo or at ��s �� mmon Isw certiorari juriadio- tion becavae the order sought to be r� I the hearing• viewed a) constitntea a departure from the j Following the commisaion order, Jen- �ential requirements of law, and b) re- 1 � ninga filed an action for deciaratory sne q� him to litigate a putative claim � ;, ; in�unctive relief in circuit court wherem p �� ng �t cannot afford h �� alleged thst Schatzman'a lobbyist coma►n- � � and for that reason does not �� nicated with some or all of the county' � � an adequate remedy. See Tan- � ` commissioners prior to the vote, thus deny- hUo u Miliman, 87 So•2d 413 (F1a.1956); � �� ing denninga dne procesa both nnder the No � ti. �,��, Bell Te� & Tel. Co., ` United States and F7orida conatitutions as g� So.2d 108 (F9a. 3d DCA 1960)• The �: , :' a as section (Ax8) of the GStizena' B�11 of � � does not apply against ��' Rights, Dade County Charter• Jennu►S$ Schatzman. Nonetheless, because we have reqnested the oourt to conduct a hearin8 to j�diction, there is no impediment to our �' establiah the trnth of the sllegations of the exercising it over Schatzman as a party. ��, complaint and upon a favorable determina- ��7� At the outset of our review of the , :,, tion then to issue an injunction prohibiting ��, �� We note that the nse of the pmpertY ss allowed by the coun- Qu�ity of due process required in a quasi- ;� ty, Based upon the identical allegations, � h � g ffi not the same as that to :�, Jennings also claimed in the seoond oount �� judicial hearing is which a party �`} of his complaint that Schatzmaa's nse of entitled. See Goss v. Lopez, 419 U.S. 565, y�,riance constrtnted a nui- �, the permitted 95 S.Ct. 729, 42 I..Ed.2d ?25 (1975�; XadkY sance which he requested the cowrt to en- � D�rtment of Admin., 411 So.Zd 184 '' '' join. The trial court dismissed Count I of �1982). Qnasi judicial proceedin8's a�'� ' the complaint, a8^ainst both Dade Conntq not controlled by strict rules of evidence . ;� '�. aad SchatLman. The court gave Jennings and procedure. See Astore v. F�orida ,i leave onlp againat Dade County tfl amend Real Estate Comm �, 374 So.2d 44 (Fla. 3d � � ��plaint and to transfer the matter to DCA 1979); Woodham v. Williams, 207 t' the appellate division of the circuit court � 320 (Fla. lat DCA 1968). None- ��. . 'I9�e trial court denied Schatsman'a motion theless, certain atandarda of lfasic fairness , to diamiss Connt II and required hun to file must be adhered to in order to afford dne �� an answer. Jennings then timely 5led this p�. Stt Xadlc�l, 411 So.2d at 184; '� ' aPPlication for oommon law certiorari. City of Mia�rx.i v. Jervis, 139 So.2d b1H (Fla. , tl� Z] We have jurisdiction based on the 8d DCA 1962). Consecluentty, a 4uasi-Ndi- following analysis. The trisl conr�s order cial decision based upon the record is not dismissed Jennings' ecluitable claim of noa- conclusive if mmimal standard8 of dne pro- record ex parte communications while it cess are denied. See Morgan v. Unit�d simultsneoualy reserved jurisdiction for States, 298 U.S. 468, 480-81, 56 S.Ct. 906, Jennings to arnend his oomplaint ao � t° 911-12, 80 L.Ed. 1288 (1986); ��' acek common law c�xtiorari review pursn- lette, Inc, v Arizona Co+�►• 1979). A ant to Dade Courity v. Narca, SA., 826 Ariz. b41, b92 P.?d 875 ((�.APP• So.2d 1&g (F1a.1976). Under Ma+�c0. Jen- quasr�udiaal hearm8 Senerall3' meeffi basia nings would be entit]ed eolely tfl s review due process reqnirements if the partiea ue • of the record sa it now e�dsts. However. pmvided notice of the hearinS . and un op- �.. ', ;., ' � ,. �.��j.;� �:. ,_ . . ; _ : .: .... �� :,.s. ..� _ . . :�. : .�- � ,. _ _ _ .. . . . � .� . � JENNINGS v. DADE COUNTY F�a. 1341 -S not pte u 589 So2d 1337 (fla_App. ] DI��. I991) - portunity to be heard. In quasi-judicial quasi judicial proceedings. Quasi judicial l�� . zoning proc�eedings, the parties must be officers should avoid all such contacts ro �� able to present evidence, cross-ezamine wit- where they are identifiable. However, we Peter- A��, and be informed of all the facts recognize the reality that commisaioners en of upon which the commission acts. Coral are elected officials in which capacity they le to Reej Nurseries, Inc. u Babcock Co., 410 may unavoidably be the recipients of unso- alent �,� �g, 6b2 (Fla. 3d DCA 1982).i Gcited ex :rent parte communications regarding � a � The reported decisions considering the Quasi judicial matters they are to decide. s �� due process effect of an ex parte communi- �e occurrence of auch a communication in _� cation upon a quasi judicial deasion are 8 Q�rJudicial praeeding does not man- : � e • conflicting. Some courts hold that an eac �� sutomatic reversal. Nevertheless, we ;�, parte oommunication does not deny due hold that the sllegation of prejudice resul� �$ proceas where the substance of tbe commu- ing �� P� coa�cts with the deci- :�, nication was capable of discovery bp the sion makers in a quasi-judicial prooeeding � not �mP�B P�Y ��me to rebut it on the $�� 8�� of ution. E.g., Waste a record. See, Gg., Richardson v Pernles, Manapemen� PATCO. Upon the aggriev- ±�� 402 U.S. 389, 410, 91 S.G`t. 1420, 1431-32, � p�'ty's proof that an eac parte contact Co., ��d.� &12 (1971); United Air Lines, �u�, its effect is pr�sumed to be preju- � Inc. v. �A,B., 309 F.2d 238 (D.C.Cir.1962); dicial nnless the defendant proves the con- inst , �arrou n Scr=vener, 225 F.Supp. 827, 834 trary by competent evidence. § 90.80d. ave (D.D.C.1964). Other courts focus npon the See qenerally Caldwell v. Division of Rc- our nsture of the ex parte communication and tiremcn� 372 So2d 438 (F1a.1979) (for dis- ` -ty, whether it was material to the point that it cussion of rebnttable presumption affec� i � prejudiced the oomplaining party and thus ing the burden of proo�. Because knowl- ' � � resnited in a denial of procedural due pro- edge and evidence of the contact's impact cess. E.g., Waste Managemertt v. Pollu- are peculiarly in the hands of the defendant �- � tion Control Bd 175 A1.A 3d 1023 125 �•! � � , pp. , quasi-judicial officer(s), we find such a bur- is I12.Dec. b24, b30 N.E2d 682 (Ct.App.1988), den appropriate. See Technicable Video ` � apptal dertted 12b Ill.2d 575, 130 III.Dec. Sya. v Americable, 479 So2d 810 (Fla. 3d : �' 490, 537 N.E.2d 819 (1989); Professional DCA 1985); Allstate Finance Corp, v ; i; � Air ?'rn�ec Controllers Org. (PATCO) u Zimmc»nan, 330 F2d 740 (bth G�r.1964). -� Federal Labor Itclations Auth, 685 F2d �� 547, 564�b (D.C.Cir.1982); Erdman v [13) In determining the prejudicial ef- =ce fect of an ez communication the frial � , Ingraham, 28 A.D2d b, 280 N.Y.S2d 865 � � 870 ((�.App.1967). ' �� should conaider the following criteria �: � which we adopt from PA?'CO, 685 F.2d at i'' �7 [8l The counLy adopts the first position ��; , i �e- and argues that Jenninga was not denied [w]hether, as a result of improper ex j ss due process becanae he either )mew or ae ' should have lmown of an ex parte commu- �� oommnnications� the agenc�s deci- �� 1 sionmaldng process was irrevocablq ;; 34; nication due to the mandatorp registration tainted so as to make the nitinaate judg- "' $ Ia. reqnired of lobbyists. The oonntp further �ent of the agencq nnfafr, either as to � �- contends that Jennings fa7ed to awul him- an innocent party or to the public inter- i.:'� ot . �e f section &�16 of the Dade Connty �t that the agencq was obliged to pro- ;! �o- to �nbpoena the lobb}nst to testify at �� determinatian, a :d the hearing ao as to detect and refute the �;, s, content of any ex parte oommunication, number of considerations may be rEle- . van� the gravity of the ex parte oommu- � ;1- We disagree �vith the county�s position. ��; wbether the contacta may '' 1 � [9-lt] Ex parte communications arE in- have influenced the sgency's ultimate de - ' s ' � � herendy improper and are anathema to cision; whether the party malong the ;' �' ,� l. It was ooaoeded u oral u�gument that the quasi�didsi. � i•' r hear[n� before the oommission in this case was .;;.±{= . . �s•,. !. .�. �: i• 4 I 1342 Fla. 689 SOtTTHERN REPORTER. 2d SERIES � �mproper contacts benefited from the Should the respondents produce enough ev- i agency's ultimate decision; whether the idence to dispel the presumption, then �t , contents of the communications were un- wi11 become the duty of the trial judge to �o�vn to opposing parties, who there- determine the claim in light of all the evi- fore had no opportunity Lo respond; and dence in the case �a whether vacation of the agency's deci- For the foregoing reasona, the applica- sion and rEmand for new pmceedings tion for common law certiorari ia granted. ! would aerve a useful purpose• Since the � orders of the circuit court are � principal concerna of the court are the quashed b and remanded with dir�ections. integrity of the process and the fairneas � of the result, mechanical rules have litt]e g�g�tTLL, J., concura. . place in a judicial decision whether � �GUSON, Judge (concurring). vacate a voidable agency proceedin8• � i atead, any auch decision must of neeESSi- I concur in the result and write separate- � ty be an exercise of equitable diacretion. }y to address two arguments of the appel- Aecord E& E Hauling, IreG v. Pollution l�s: (1) This eourt in Coral Reef Nurser- � ies, lnc. v. Babcock Co., 410 So2d 648 (Fla. Control Bd, 116 I11.App.3d b86� 71 Ill-Dec. � DCA 1982), rejected attempts to cate-� � ' S87, 603, 451 N.E.2d b55, b71(Ct.App.1983), affd 1� I11.2d 83, 89 I11.Dec. 821, 481 So� COUn�3' C°�mission hearings vn dis- N.E.2d 664 (1985�• trict boundary changes as "legislative; ' � while treating hearin88 on applications for [14,15] Accordingly, we hold that the S�� Phons or variances as "quasr j sllegation of a prejudicial eac parte commu- N �� d (2) the petitioner does not '� nication in a quasi-judicial proceedin8 be' state a cause of action by alleging simply ; ,� � fore the Dade County CAmmission will en- �t a lobbyist discuased the case in a � �; s able a party to maintain an original eq- private meeting with membera of the Coun- � uitable cause of action to establish its �, �mmy�sion prior to the hearing. It is ;, , � claim. Once established, the offending par �� g�� Judge Nesbit�s opinion for tbe : �y, will be reqnired to prove an absence of �� t neither argument is accepted. s ' prejudice = * Legislative and Quas=-Judicial [16-18] In the present case, Jennings' F}cnctiona Distinct ' I complaint does not allege that say commu' ' f�� .. nicatian which did occur cansed hun preju- In support of its argnment, that "[t]hia dice. Consequently, we direct that npon Court has previonsly rejected at�empts to �`:., categorize county commisaion hearings on ;;; ,, remand Jennings shall be afforded an op- ;;.': portunity to amend his complaint Upon district boundary changes as `legislative', ''' ro- wh�e treating hearings on applieations for - '�' :� such an amendment, JenninSs shall be p ��I vided an evidentiary hearing to present his apecial exceptsons or variances as 'qusai� : ' rima facie case that ez parte eontacts judiciaP," Dade County cites Coral liaf ' `', p re dice ahall Nurseries, Inc. v Babcock Company, 414 �� occun�d. Upon auch proof, g ju � � be presumed, The burden w�l then ahift to So2d 648 (k'la- 8d DCA 1982). Tbe argn- �. the respondents to rebnt the presnmptian ment is ma�e for the purpose of bringing that prejudice occurred to the claiman� this csae within what the respuadents de- , 2. ln such a proceedin& the Princ�Pies and max- municatioa had sufficient &npad upoa thc dai- uns of equity u'e aPPlicabla Su 22 F1aJur.2d sion and, therefore, whether the vacacion of the E � �� a�ec1• (1980). a8wc�s decision and remand for a�w pro 3. In rebuttin6 the Prewmption of prejudice' n' ceeding would be likdy to change the rault. spondeut may rely on say favocabk evideace S. AIothin8 in tlds dedsion st�all affecs our hold- praeated durin8 the cia��s easainrbie� in- ��k Walton LeaBu� of Arna�os v. a(ae- . i a�s ��aa�a a� ��': �- ;� �„t �s so.sa u�o cr�. � ncn i�) wmination of �wmant': witn�a. , (county commission ading ia a l�ative p' • 4. Unda tlse PAT1W test �dopt�ed. �e of the padt9�. � -. ' ' primary oon«ras is whetha' tlx ex puu com- ��. ,"` :� �,� .-. ,� � ,.._.__ ._:, .. �.,.__,.:.. ._. ,.. . .. __ _. } , . - _ .� . , . u ; JENNINGS v. DADE COUNTY �• 1343 � p�*. G�e �a S89 So2d 13J7 (F1a.App.3 DLt. 1991) �t scribe as a legislative-function exception to conditions by making a new ru)e to be ? � ' the tule against e�c parte communications. appiied thcreafter to all or some part c: � �v�. Indeed, there is language in the Coral Reef those subject to its power. � opinion, particularly the dicta that "it is the Suburban Medical C�nter, 597 P.2d at 661 � � character of the administrative hearing (yuoting Prentis v Atlantic Coast Liree j � leading to the action of the administrative Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, b3 i � body that determines the Iabel" as legisla- L.Ed. 150 (1908)).� ; � tive or qussi-judicial, Conal Reej at 652, ; �' which, when read out of context, lends it � 8e�� at the enactment and � su rt to Dade Coun amending of zoning ordinancea is s legisla- PP� ty's contentions. As tive function—by ease law, Schautr u City 1 i • an abatxact propositaon, the atatement is oj Miami Beach, 112 So.2d 838 (F1a.19b9); � inaccurate. Machado v. Mus � grove, b19 So2d 629 (F7a. . ,.�. • Whereas the character of an administra- 3d DCA 198'� (en banc), r,eu denied 62.q f el- tive hearing w�11 determine whether the So.2d 694 (F1a.1988), by statute, aectiona �,-. � proceeding ie qusai-jndicial or eaecutive, De 163.3161 and 166.041, Florida Statutes �; ;,, Groot v. She},j4eld 95 So.2d 912, 915 (Fla. (1989), and by ordinance, Dade County , ;� 1957), it is the nature of the act performed �e § 3�03. See also Anderson, Iaw of ;�_ that determines its character as legislative �t�,g, § 1.13 (2d Ed.1976) (ioning ia a �� or otherwise. Suburban Medical Center )egislative act representing a legisiative ; � . v Olathe Community Hosp., 226 Kan. judgmeat as to how land within the city t ; I_ 820, 828, b97 P.2d 6b4, 661(1979). See also ahould be ut�7ized aad where the lines of ' �� Walgre�e Co. v. Polk County, 524 So.2d demar�cation between the aeveral zones ' ; I119, 1120 (F9s. 2d DCA 1988) ('The quasi- ahould be drawn); 101 CJ.S. Zoning and � a judicial nature of a proceeding is not al- Land Planning § 1 (1968) (same). It is t' �_ ' tered by mere procedural flaws."). also fairly settled in this state that the � � A judicial inqniry investigates, declares graating of variances,= and special ezcep- _ . and enforoes liab�ities as they stand on tions or permits, are quasi-judicial actions � 3, present facts and ander laws suppoaed Walgreen Co, v, polk County, b24 So2d .? slready to exiat That is its purpose and 1119, 1120 (Fla. Zd DCA 1988r City cj "+ end. Legislation, on the other hand, Neso Smyrn.a Beach v. Barton, 414 So.2d looks to tbe future and changes existittg 542 (Fla. 5th DCA) (Cowart, J., concurring ..,' s l. Relyiag on Coral Reef, the majority opinion hardship. 7 F1aTur2d, Brdldin� Zontn� and , j a refers to qw�si�dicial mning proceedings," a Land ControZ�, f 140 (1978). �. oonfouadiag phrase wluch has its genesis in p � . ��: � Rinker Alataialr Corp. v Dade County, 528 T� normal function of s variana is to So.2d 904. 906, a 2(Fla. 3d DCA 198�. There mit a change in 'building restridians or height r i 2 r Dade Councy argued co this courc chac che u- and deasiry limitadons" but noc a change in ;� eo of "use classifications". Ceorge x�tfiami Shoru ;�;; ti rding �rooedural due proctss" converts a legislaHv�e p�noeeding inW a quasi judicial pro- Y�� 154 So.2d 729 (F7a. 3d DCA i%3). - � E�1 t f .xi, o�din�. dS°f Corat Re% That ProPosition �� adminisirative body acts qussiiudiciailp �� > zvns afoul af an eatire body of adminisu�ative whea it adjudiata private r3ghu ef a particular i. _ Iaw. If aa act is in essence legistative in chuac- ��n after a bearing which co ter, tbe fut of a notioe and a hearing does not mP� with due �� ' tran�orm h iato a judidai act. If it w�ould be a p� ral��II�, and mal�a findiags of .� ' _ legisiadv�e sct rvitbout notioe and a hearing, it is fuu snd oondusions of law oa tbe disputed : still a kgislatfv�e act with notice and a hearing. ��eferential judk�sl stat�. � i See Pnaetis v i!tlantic Cvust Line Ca, 211 U.S. 210, 29 S.G. 67. S3 LEd. 150 (1908): Reagan v. �� y�QnBe �tY ��d ;� Fa�mas'Lomt 6r Trust Ca,, 154 US. 362, 14 S.CG 657 (F7a. 4th DG 1974). 104T, 38 LEd. 1Q14 (IS94). On review of kgislative ads, the oaut maka 1 � a defarcntial inquiry. i.a. Is the acarIu of dis- . i A varLaoe is a modificatlon of the mning aaionary authority '�aidy debatable,� South- � ordinance whlch may be granted when such wrst Randus Xomeex�ters Assk v. Bnvxaa� ,', varLace wIll not be contrncy to the publlc inter- Coux[y. 502 So2d 931 (Fla. 4th DG). ma de- �� s • est and wbea, owin� to oondidons peculiar to nied Sll So.2d 999 (F3a.i98�. Furtber. there is `� the property aad not the rault of the actioas of no requirement that a tovaameatal body. act• '•i the appllamt, a literal oaforcemeat of the ordI- ing ia hs 3egisiatiMe aPacitY. wppat its actioas ', nance w+a�ld rautt ia unn and nndue with y � t#' �i' fiadingx of fad and ooadusioas of law. `,' . . �.; + , • ; ! � �I �' 1 . ; i 1344 ��• 589 SOUTHERN REPORTER, 2d SERIES � apecially), ,�eu denied 424 So.2d 760 (F'3. differences b etween quasi-ju dicia l sn d leg- � 1982); City of Apopka u Omnge County, islative proceedings in land use cases. . 2gg So.2d 657 (F'la. 4th DCA 1974); Sun We clarify Coral Reef, in accordance j Ray Homcs, InG v County of Dade, 166 �� its facta, as holding only that legisla- So2d 827 (F7a. 3d DCA 1964). tion denying an application for rezoning � A variance contemplates a nonconform• h� a P�lusive effect on a subaequent ing uae in order to alleviate an undue bur- aPPlication for the same rezoning, nnlesa j den on the iadividual property owner �e applicant can ahow aubstantial and ma- f caused by the e.xisting zoning. Kezoning terial changes in circumstances. Treister ; contem lates a change in existing zoning v. City oj Mia�ni, b7b So2d 218 {Fla. 8d f � P DCA 1991), relping on Corn! Rtef. An i ' rules and r�egulatio� within a district, aub- �terpretation of Coral Reej as �:clding diviaion or other camparatively large area �t there is no longer s distinction be- '' in a given governmentat uni� Troup v. �,�n legislative actions and qnasi-judicial � ' Bir+� b3 So2d 717 (F7a,19b1); Magflo�oer �, actions of a county commisaion in land use +► Property, Ina v. Cita/ of Fort Lauderdale, 18? So2d 849 (Fla. 2d DCA 1962); 101A �es goes far beyond the actual holding of � CJ.S. Zoning and Land Planning § 231 the case, and is clearly erroneons. See ; � note 1 aupra. � (lYl9). +� R.eliance by the respondents on Ir,aalc '�' Walton League of A»urica v. Monrot � 1�� Cornl l�ecj Case Clar�ced �unty, 4d8 So.2d 1170 (Fla. 8d DCA ! �' Coral Raef involved s legislative action. 1984), is sim7arly miaplaced. In that case �� The issne before the court was whether we held that county commissionera, when i r; , there was a ahowing of substantial and acting in their legislative capacities, have i material chsnges in s 1979 application for a the right to publicly atate their views on I � rezoning so that a 1978 denial of an appli- pending legislative mattere. Izaczk Walton ; cation for the same changes, on the same Leayue does not address the issne of ex ! a: garcel, by tbe same spplicant, wonld not be parte communications or prehearing pro- � �• precluded by res jndicata principles. It nouncements in quasi-judicial proc�edings. � � was not necessary to hold the 1978 hearing ; quasi-judicial in character in order to �nd I'Ob�'n ; �; that the 1978 resolntion had preclusive ef- Jennings argues here that the behind- f fect on the 1979 zonmg hearing• There is s the-scenes lobbymg � of the commissioners �� requirement for procedural fairness in all by Schatzman, for the purpose of mflueno- '� ; Iand use hearings, �vhether on an applics- ing the outcome of an appeal from s qnasi- � ,. , tion for a boundary chan8e or a variance. judicial proceeding, vioiated the G�tizens' Adherence bo that coastitutional standard, B�71 of Rights' of the Dade Connty Char however, does not a}ter the distinct legal ter, as well as the due process provisions of 4. - 'I.obby;�ng' is aefin�ea as any pe:sonal soucita- cure. bY Pas��oa. �rtunity. or thc use of tion of a member of a k�islative bodY durin6 a induameats, tbe PusnB of bI11s. Pablic as weIl session tt�ereof. b9 Privste intaview. or Ietter or u private. which inrolve gain to tbe promotert m�ge, or other means and applianxs not Id l�YJ iddrr-c�ed s�olely to tlu ir�d8men� to � favor or oppose, or to vote for or against, any S. Scction a(8), Citiuns' Bill of Rig6is, Dade bill, raolution. repat. or claim Pendin8� or to ��Y C��'• Pj'�ri� m P��t P� be introduoed .... bY �Y P�n :.. who is At any mning or other bearing in which ra employed for a 000aderation by a persoa or ri� u��]y by oertiocari, a party or his oorporsiion interested ln the pas.sage or defeat counsel shall be eatitkd to praseat his case or of such blIl, resolution. or report. or c]aim. for defease by orai or documentary evideax. to , the p�upose af prodning the passage or defeat submit nbuttal evideaoq aad to oonduct wch thaeoL' B1acYs Lw* Didionary 1086 (rev. 4th �on as may be required f� • .. i ed. 1468)• (EmPhssis suPPlie�. 1be work of full and true disclasurc of tbe facts. The � lobbyin6 Is pa�formed b9 � decision of aay wch ageacy. boar�l. depart A lobbyist is ofle w�ho maka it a bus�ss w meat or authoritq must be b�d upon tbe ; 'see" membas of a kgisladve body and pro- facss in the recocd. � ;, _ , ; ��I �j i � (I �. � ' MORRIS v. STATE �1 1345-13b1 Gu � SE9 So2d 1351 (fla.APp.2 Dtu. N9t) � the Lnited States and Florida Conatitu- {1979). Adherence to procedures which in- ' , � tions. We agree, obviously, that the lobby- sure fairnesa "is essential not only to the ing actions were unlawful. Dade County lega! validity of the adminiatrative regula- and Schatzman reapond that Jennings is tion, but atao to the maintenance of public entitled to no relief because he has not confidence in the value and soundnesa of � , alleged and demonstrated a resulting preju- �� po�t governmental procesa." Id dice. In the opinion on rehearing thia court b97 P2d at 662 (citing 2 AmJur.2d Admin- � � now clearly rejects that argument istnative La.w § 851). The conatitutional i Prejudice is to be presumed, without fur compulsions which led to the establiahment � ther proof, from the mere fact that any of rules regarding the diaqualif'ication of � county commissioner granted a private au- judgea apply with equal force to every tri- � dience to s lobbyist, whose purpose was to bunal exercising judicial or quasi judicial � solicit the commissioner to vote a certain functions. 1 Am,Jur2d Administmtive way in an administrative proceeding for Iaw § 64, at 860 (1962); City ojTallahas- reasons not necessan7y addressed solely to aee v. Flo�ida Pub. Serv. Comm'n, 441 # � the merits of the petition, and that the So.2d 620 (F1a.1983) (standard used 'm dis- commissioner did vote accordingly. Star� qualifying agency head is same etandatd ; ing with the legal definition of lobbying, used in disqualifying judge). See calao Rog- i� aee note 4 supra, and applying common ers v. F'riedrnan, 438 F.Supp. 428 (E.D.Tex. � t � l�owledge as to how the practice works, 1977) (rule as to disqualificadon of judges there is a compelling reason for placing the is same for administrative agencies as it is ; burden of proving no prejudice on the party for courts) (citing K. Davis, Adrrtiniatra- �� responsble for the ea parte communica- tive Law � 12.04, at 250 (1972)j. Ritter v tion. Board of Comm'rs of Adams County, 96 � Although an eac parte communication Wash.2d 603, 637 P.2d 940 (1981) (same). :�� with a quasi judicial tnbunal makes its �- -.; � nal action voidable, rather than void per ae, w \ the presumption which is drawn from the O� KEY NUMtE� MTFM . fact of the improper conduct„ is applied to � promote a strong social policy and is suffi- '� cient evidence to convince the fac�finder that the innocent pariy has been preju- Robert L MORRIS, Appellant, ' z diced; the rebuttable presumption imposes � npon the party against whom it operatea o • the burden of proof concerning the nonex- $TATE of Florida, Appellee. �� - istence of the presnmed fact.' § 90.304, No. 91-02607. `� F1a.Sta� (1991); Departm.ent of Agrieul- , �,i ture & Consu»ur Seros. v Bonanno, 568 District Caurt of Ap}�eal of F7orida, - ' So2d 24, 81�2 (F'1a.1990); Black's Law Second Distric�t. Dictionary 1349 (4th ed. 1968). �": Oct. Z, 1991. � Ex parte lobbying of an administrative g�b�g Denied Dec. 6, 1991. �"� bodq scting quasi-judictially denies the pari � tiea a fair, open, and �nnpsrtial hearing. Appeal pursuant to F1a.R.App.P. 9.144(g) ��; Suburban Medical Cen.ter v. Olathe Com- from the G�rcuit Court for Pinellas Countp; � munit�/ Hosp., 226 Ban. 320, b97 P.2d 654 Richard A. Luce, Judge. �! f 6. PA?L�0 v. Fedua! Zabor Relatiora Authority, communicadoa on public rxord. Subsection 3 685 F.2d 547 (D.GCir.l982). nlied on by Judge (D) :tata that where the communication was 1 � Nabitt, supports this view. There the court wu knowingly made by a party in violation of this construing section S57(d)(1) of the Administra- subaection, the party may be required "w show '. � Hve Procedure Acct.. 8ovaning ac parte commw cauae why his cLim or intaYSt in the prooced- 3 � nications. The Act pmvida, in subsection (C). InB :hould not be dismissed, denied, disregud. � ifr that a membex of the body invotved 1n the ed, or othawtse adva�ely affected on accauat '��` dxisioaal proau who reaiva aay pro6ibited of such vioLtion." S US.C.A. § 557(�(1XC), : i i��. cammunicatIon shall pLoe the oonteats � the (D)• !� : . ,i �. �. � �;,�: i� ��. t, Neckly 5522 SI/P1Z.CM� COURT OF FLORIDA � fic� complainc shall bc filcd no laccr than 30 days aftcr thc al- complaint bccausc it is an original party to the procecding. Fur- le�ed inconsistent action has b�en taken. The local government thermore, it is axiomatic that a landowner challenging the denial reccivine the com�laint shall respond within 30 days after receipt of a requested zoning change is doing so for an econom�e advan- of thc compl�irt. 'I�hcrcaftcr, thc complaining parry may institutc ��5�. ' the action authorizcci in this scction. Howcver, tl�e �ction shall bc We acknowledge that subscction (2) defines the term "ag- instituted no latcr than 30 days aftcr the expiration of thc 30-day grieved or adversely affected party" to include "airy p�rson ... period �vhicl� the loca! government has to take a�propriate ac- which will sufftr an adverse effect _to an interest protecitd or uon. Failure to comply with d�is subsection stiall not bar an �nhered by the local governmental comprehenstve plan." action far a temporary restraining order to �revcnt immcdiate (Emphasis added.) Further, the term "development order," and irreparable harm from the actions complamed of. referred to in section 163.3215(1), is defined as "any order (6) Tho signacure of an attorney or parry constitutes a certifi- 8ranting, denying, or g�ranting with conditions an application for cate tha� he has rcad the pleading, mot�on, or other paper and a development permit, § 163.3164(6), Fla. Stat. (1989) (em- that, to the bcst of f�is knowledgc, information, and belief formed Phasis added), and sxi�on 163.3215(3)(a) refers to suits main- after reasonable inquiry, it is noc interposed for any impropor �amed under tht statute which challenge approvals or dtnials. purpose, such as to harass or to cause unnectssary delay or foc However, the fact remains that the only cause of action autho- economic advancage, competitive reasons or frivolous purposes rized by the statute is eontainai in subsection (1), and a land- or needless incrcase in the cost of lid�ation. If a pleading, mo- owner seeking review of a denial does not fall within the scope of uon, or ocher paper is signed in �;olauon of these requiremenu, that subsection. che couct, upon mocion or its own iniaaave, shall impose upon We answer the certified question in the affirmative and disap- the pe�son who signcd it, a rep�esented party, or both, an appro- prove Parker 1. We quash the decisions below and remand for priate sanction, which may includc an order to pay to the other procetdings in accordance with Board of County Commtssioners parry or parties thc amount of reasonable expenscs incurred v. Siryder, No. 79,720 {Fla. Oct. 7, 1993). because of the filing of thc pleading, motion, or other paper, It �s so ordered. (BARKETT, C.J., and OVERTON� Mc- including a reasonable aaorney's fee. DONALD, KOGAN and HARDING, JJ., eoncur. SHAW, J., The developers argue that as landowner applicants their com- dissents.) . mon law right to petition for certiorari review m circuit court was * * * unaffected by section 163.3215 because that statute only applies Zoning—Rezoning—Action of Board of County Commissioners to actions by third-party intervenors. We agree. in denying rezoning application is quasi-judicial in nature �vhere At the autset, we note that the history of the statute supports action entails the application of a general rule or policy to speciBc the developers' position. In 1984, this Court held that third par- individuals, interests, or activities and does not affect a largo ties' stand�ng to intervene to challenge zoning, development portion of the public--Such action is revie�vable by petition for orders as inconsistent with the comprehensive plan was not en- certiorari–�uch review is subject to strict scrutiny—Ev�n where larged by the Local Government Comprehensive Planning Act of denial of zoning application would be inconsist�nt with compre- 1975, but continued to be governed by the common law rule of hensivc plan, loca! gavernment shouId have discretion to decide standing which required that a legally recogniud right be ad- that maximum development d�nsity should not be allowed pra versely affected. Cilizeru Growth Management Coalilton, Inc. v, vidcd thc governmental body approves some development that is Ciry oj West Palnt Beach, 450 So. 2d 204 (Fla. 1984). 'I7�e fol- consistcnt �vith thc plan and tlie govcrnmcnt's decmon Is sup- towing year as part of the Growth Management Act the legisla- Po�ed by substantial, competent evidence—Lando�mer seeking ture enacted section 163.3215 to ensure the standing for any to rezone property has burdea of proving that th� proporal is person who "will suffer an adverse effect to an intecest protected consistent �vith the comprehensive plan and complia with all .. by the ... comprehensive plan." § 163.3215(2), Fla. Stat. Procedural requirements of the zoning ordinance—Burdw then (1985). See Soutlr�vest Ranches Homeowners Ass'n, Inc. v, shifks to governmentz! board to demonstrate that maintainwg thc cxisting zoning classification �rith respcct to thc properiy Counry oJBro►vard, 502 So. 2d 931, 935 (Fla. 4th DCA) ([Sec- accomplishes a legitimate pubtic purpose—If board canies its tion 163.3215j "liberalizes standing requirements and demon- burden, lando�vner's only remaining recourse will be to demon- strates a clear legislative policy in favor of ihe tnforcement of ��te that existing zoning classification is confiscatory and comprehensive ptans by persons adverscly affectcd by local tiiereby constitntes a taking—Although board is not required to action."). reviewdenied� 511 So.2d999(Fla. 1987). make 8ndings of fact, in order to sustain board's action upon Turning to th� language of the statute, it is particularly signif- revietiv by certiorari ia circuit court it must be shown that there icant that subs�ction (1) authorizes an aggrieved or adversoly �vas competent subs�taatial evidence presented to board to sup- affected party to bring an action to prevent a local governmcnt port its ruling frorre taking aaion on a developmrnt order which materially Bo�RD OF COUNTY COMMISSIONERS OF BREVARD COUNTY. allers the use or density or intensity of use o,�a pieee of property FLARIDA Peuuoner vs. JACK R. SNYDER ec uz., Respondenu. s�prcme that is not consistent with the comprehensive plan. An owncr Court of Florida. Case No. 79 ,720. Occober 7, t993 Applicadon for Review of whose application has been denied does noi seek to prevent action �e Decision of the Distria Court of Appal - Direct ConHia of Decisions. Sth District - Cxse No. 90-f214. Robert D. Guthrie, Counry Aaomey and Eden on a development order. Moreover, the denial of an application B �„�� y. ,�; eounry �ccomey,lrteit�oume for Petitioner. Franlc l. Grif does not alter the uso or density of propeny beeause the denial c,e�, �r of C�anfrogna, Tdfer, 1tce� & r-at,ercy P.A 'rm�viue, ior Respo�- order simply preserv�s the status quo and no further action is denu. Dcnis Desn and Jomthan A . c�ogau, �ssisunc Aaorneys cene�t,'t�tta- possiblo hassee. Amicus Curiae for The Attomey Generat. State of Ftond�. Nancy The requirement of subsection (4) to 61e a veri6cd complaint swparich Assimnt Gencnl Counsel and ]ane C. Hayman ue�ury Generat with the local overnment as a condition recedent to filin suit �01is`�' z'`tutuu" Amiws Gluiae for Fbrida I.eague of Citia, lnc. Paul R 8 P � Gougelman, III ud Mauaen M. Matheson of Reinman, Hanell. Graham. further suggests that the statute pertains only to ihird•party �nter- M;utull dc Waawnod. P.A.. Melbourne. Amicus Curiae for Sp�a Coasc venors because such a requirement would be supor�iuous with LaL�+e of Citia. Iac Cicy of Me�boume, and Town o[ Ineialanac. Rxm�d E. respcct to applicants who have alrcady made their positioa Gencrr, �toriea ttome suilders �swciacion, T�tw�assee• and Roben.M. known to thc local overnment. Finall . the 1an ua e of subsec- �a and Gthy M. SeUert of Stat. Heaor and Davis, 'tL�w�see. Amia,s s X g s Curiae for Florida Home Builders Associatan. David Lt Cmiu of Pennington. tion (6) �iso illustrates that tho statute is only applieabte to third �Yilkinton & Dunlap P.A.. 'i�f�ahassee• a,tid vvittiam 1. Robem � Robens and parties. Under that subsection, the signatun of a complaining Easan, P.n.. 'l5dlahassee. Am�cus C1�riae for Florida Assocatioa of Counties. party or its attorney is deemed to be a certification that the action David J. Ruts and Karen Brodeen, Assisant Geaenl Counsds. Tallahassee '`is not interposed for any improper purpose, sueh as to harass or Amicus Curiae tor Florid: Department of Communiry Affairs. Richud Grauo .. Legxl Director. 1000 Friends of Florida, Tallahassee; and C. Allen Watu of to cause unnecessary delay or for eeonomie advantaga The Cobb, Co�e and Bot� Daytona Beach, Amicus Curiae for 1000 Friends of Flori- word "iIItCipOSC'� mcans to interfere or intcrvene, Oc IO StCp da. Nul D. Bowen, Courtty Attome�, Kissimmee, Amicus Curiae forOsaol� betwe parues at variancc. V II Oxford English Dictionary at Counry. M. Stephen Turnerand Davx! K. Milter of Droad and Cassel,l�ltahas- 1130 (2d cd. t 989). A landowner applicant cannot inte[pOSe A sce, Anucus Curiae for Monticello Drug Company.lohn J. Copelan, lr., Coun- ... ..,,,.�... ....,i o..+...-� C RA�,.,h�� e.� ..-.... !`..,..,.. nnnr^<'v for Rmuar+i ' • SUPREME COURT OF FLORIDA � 18 t�a. L. weckiy Ss�; � Councy. Fort taudc�da�c; �nd Emcline ncion. Counry Attorncy for record of its proceedings, sutiicient for judicial review of: di� Hiltsborough Counry, Timpa, Amici Curiac for Droward County, Nillsbomugh �egal sufficicncy of the evidence to support the findings of fac County, �nd Florida Association of Cuunry Attomeys, Inc. Thom�s G. f'etham madC, thC IGgal SufllCiCnCy of the findings of fact suppotting t!,. of Holiand & Kni;ht, Tailahasscc, Amicus.Cu�iac for 7liomas G. Pclham, prv �casons given and thc Icg :11 adcquaCy undcr applicablc law {i.� sc. under general comprchensive zoning ordinances, applicable stat. (GRIMES, J.) Wc review Snyder v. Board of Counry Comntis- and case law and state and federal constitutional provisions) o: sio►:ers, 595 So. 2d 65 (Fla. Sth DCA 1991), because of its con- �e reasons �ivcn for the result of the action taken. (lict wich Schauer v. City of Miami Beach, 112 So. Zd 838 (Fla. (5) 'I'he �mt�al burden is upon the landowner to demonstracc t959); Ci1y of Jacksonville Beach v. Grubbs, 461 So. 2d 160 that his peticion or appiication for use of privately owned lands, (Fia. lst DCA 1984), reviewdenied, 469 So. 2d 749 (Fla. 1985); (rezoning, special exception, conditional use permit, variancc, and Palm Beach Counry v. Tinnerman, 517 So. 2d 699 (Fla. 4th site plan approval, etc.) complies with the rrasonabie procedura� DCA 1987), review denied, 528 So. 2d 1183 (Fla. 1988). We requirements of the ordinance and that the usc sought �s consis- have jurisdiction under article V, section 3(b)(3) of the Florida tent with the appticable comprehensive zoning plan. Upon such � Constitution. Jack and Gail Snyder owned a one-half acre parcel showing the landowner is presumptively cntided to usc his prop- of property on Merritt Island in the unincorporated area of Bre- crry in thc manner he seeks unless the opposing governmenta'. vard County. The property is zoned GU (genetal use) which al- agency asseru and proves by clear and commcing evidence tha. lows construction of a single-family residence. The Snyders filed � speafically stated public necessity requires a specified, morc an appiication to rezone their property to the RU-2-15 zoning restr�cuve, use. After such a showmg thc burdcn shifu to the ciassification which allows the constructton of fifteen units per landowner to assert and prove that such specified more resuic- acre. The area is designated for residential use under the 1988 ave land use constitutes a taking of his properry for public use fo � Brevard County Comprehensive Plan Future Land Use Map. Which hc is entitled to compensation under the taking provisior.� Twenty-nine zoning classifications are considered potentially of du state or fcderal constitutions. consistent with this land use designation, including both the GU S�ryder v. Board of County Commissioners, 595 So. 2d at 8; and the RU-2-IS classifications. (footnotes omitted). After the application for rezoning was filed, the Brevard Apptying these principles to the facts of the case, the coun Counry Planning and Zoning staff reviewed the application and found (i) that the Snyders' petition for rezoning was consistcn, completed the county's standard "rczoning review worksheet." with the comprehensive plan; (2) that there was no assertion o: 'Ihe worksheet indicated that the proposed multifamily use of the evidence that a more restnctive zoning classification was neces- Snyders' property was consistent with all aspccts of the compre- sary to protect the health, safety� morals, or welfare of the gen- hensrve plan exccpt for the fact that it was located in the one- eral publ�c; and (3) that the denial of the requested zoning classi- hundred-year flood plain in which a maximum of only two units fication without reasons supported by facts was, as a matter o: per acre was permitted. For this reason, the staff recommended law, arbitrary and unreasonable. 'Ihe court granted the petitior that the request be denied. f°r cen�°rari' . At the planning and wning board mceting, the county plan- Before this Court, the county contends that the standard o: ning and zoning director indicated that when ihe property was review for the county's denial of the Snyders' rezoning applica- developed the land elevation would be raised to the point where tion is whether or not the decision was fairly debatable. The the one-hundred-year-flood plain restriciion would no longer be �ouaty further argues that the o�inion below eliminates a locai applicable. Thus, the director stated that the staff no longer op- government's abiliry to operate m a legislative contezt and im� posed the application. The planning and zoning board voted to pairs its ability to respond to public comment. The county refer: approve the Snyders' rezoning request. to Jennings v. Dade Counry, 589 So. 2d 1337 (Fla. 3d DC? When the macter eame befon the board of county commis- 1991�), review duued, 598 So. 2d 75 (Fla. 1992), for the propa sioners, Snyder stated that he intended to build only C�ve or six sition that if its rrzomng decision is c�uasi judicial, the commis- units on the property. However. a number of ciuuns spoke in sioners will be prohibited from obtauung community input b� opposition to the rezoning request. Their primary conctrn was way of ex parte communications from its citizens. In addition the increase in traffic which �would be caused by the develop- the county suggests that the requirement to make findings ir mcnt. Ultimatcly, dic commission votcd to deny the rezoning support of its rezoning decision wi11 place an insurmountablc request without stating a reason for the denial. burden on the zoning auihorities. The county also asserts that th, The Snyders filed a petition for c�rtiorazi in the circuit court. salutary purpose of the comprehensive plan to provide controlle: Three circuic judges, sitting en bane, reviewed the petition and growth will be thwarted by the court's iuling that the mazimur denied it by a two-to-one decision. Thc.Stryders thcn filed a use permitted by the plan must be approved once the rezonin; petition for certiorari in the Fifth District Court of Appeal. appiication is dcurmined to be consistent with it. The district court of appeal acknowledgad that zoiung d�ci- The Snyders respond that the decision below should be uphelc sions have traditionally becn considered legislative in nature. in all of its major premises. They argue that the rationale for th 'Iherefore, courts were rcquired to uphold them if they could be early decisions that rezonings are legislative in nature has bee: justified as being "fairly debatable." Drawing heavily on changed by the enactment of the Growth Management Act. Thu� Fasano v. Board of County Commissioners, 507 P.2d 23 (Or. in order to ensure that local governments follow the principle 1973), however, the court concludc:d that, unlike initial wning enunciated in their comprehensrvc plans; it is ncccssary for tr enactments and comprehensive rezonings or nzonings affecting courts to exercise stricter scrutiny than would be pmvided und� a lazge portion of the public, a rezoning action which entails the the fairly debatable rule. The Snyders contead that theit rcwnir• application of a peneral rule or poliey to specific individuals, application was consistent with the eomprehcnsive plari. Becaus interests, or activ�aes is quasi judicial in natuc�e. Under the latter there are no findings of fact or reasons �rven for the denial by tt; circumstanas � tho court raasoncd that a strider standazd of bo� of ��Y m��oners. ihere �s no basis upon which th judicial review of the rezoning decision was requited. The court dcnial could be upheld. Yarious amici curiae have also submitte went on to hold• briefs ia support of their several positions. (4) Since a property ownei's right to own and use his properry Historically. local governments hav� ezercised the zonir is consatutionally protected. review of ury governmental acuon po�'�!er pursuant to a broad delegation of state legislative pow� deirying or abridgtng that right is subject arelose judicial scruti- sub�ect only to constitudonal littutations. Both federal and sta rry. Effective judicial review, constitutional due process and courts adopted a highly deferential standard of judicial revie other essentiai rcquircments of law, alt necessitate that the gov- early in the htstory of loca! zoning. In Vllage ofEuclid v. Ambl� ernmental agency (by whatever namo it may be characterized) Realry Co.. 272 U.S. 365. 47 S. Ct. 114, 71 L. Ed. 303 (192E ap�tying teg�siated land use restricaons to particular parccls of the Unucd States Supreme Court held that "[i]f the validity of t: privately owncd Isnds, must state reasons for action that denics legislativc classification for zoning purposes be fairly debatabl� .�.� ...�•_,� �+.� .,�� .,r�,;� ��.,�i anc{ m,i�� make findines of fact and a the ie�islative iudement must bc a(lowed [o control." 272 U.S. �s,n�. L.;«��kty ss�a SL/PIZLME COUR OF FLORIDA iE8. This Court cxpressly adoptcd thc fairly dcbatablc principlc such ordcr or rc�ul�tion arc compatible with and further the n Citv ojhfiomi Brach v. Occa» &/nland Co., 147 Fla. 480, 3 objcctivcs, policics, land uscs, and dcnsitics or inten�itics in thc �,>. 2d 3G�3 (19�11). comprehcns;��c �lan and if it mccts all othcr criteria cnumcratcd lnhibitcd only by thc loosc judicial scrutiny a(Tordcd by thc f�y �hc local L��'crnmcnt. ;airly debatablc rulc, local zoning rystcros dcveloped in a mark- Scction 163.31G4, Florida Statutes (1991), rcads in pertinent �.dly inconsistcnt manncr. Many land usc cxperts and practitio- Pan; �crs have bcen critical of the local zoning system. Richard Bab- (G) "Development order" means any order granting, deny- �ock deplored the effect of "neighborhoodism" and rank politi- ing, or granting wich conditions an application for a devcfopment �al inAuence on the local decision-making process. Richard F. permic. 3abcock, 77�e Zoning Game (1966). Mandelker and Tarlock (7) "De��elopment �ermit" includes any building permit, reeently stated that "zoning dec�sions are too often ad hoc, slop- zoning permic, subdiv�s�on approval, rezoning, eertificacion, �y and self-serving decisions with well-defined adverse conse- speciat exception, variance, or any otl�er official action of local quences without off-setting benefits." Daniel R. Mandclker and government having the cffect of permitting the development of �. Dan Tarlock, Shijting the Presumption of Conslitutionality in land. ::and-UseLaw, 24 Urb. Law. 1, 2(1992). Because an order granting or denying rezoning constitutts a Professor Charles Harr, a leading proponent of zoning re- development order and development orders must bc consistent ;orm, was an early advocate of rcquiring tha[ local land use with the comprehensive plan, it is clear that orders on rezoning �egufation be consistent with a legally binding comprehensive applications must be consistent with the comprehensive plan. plan which would serve long range goals, counteract local pres- The first issue we must decide is whether the Board's aciion sures for preferential trcatment, and provide courts with a mean- on Snyder's rezoning application was legislative or quasi judi- ingful standard of review. Charles M. Harr� "!n Accordance cial. A board's legislauve action is subject to attack in circuit With A Compreheruive Plan," 68 Harv. L. Rev. 1154 (1955).1n court. Hirt x Polk Counry Bd. of County Comm'�s, 578 So. 2d 1975, the American Law Institute adopted the Modol Land De- 415 (Fla. 2d DCA 1991). However, in deference to the policy- •; elopment Code, which provided for procedural and planning making function of a board when acting in a Icgislative capacity, ;eforms at the tocal level and increased state participation in land its actions will be sustained as lang as they are fairly debatable. use decision-making for developments of regional �mpact and Nance x Town of Indialantic, 419 So. 2d 1041 (Fla. 1982). On �reas of critical state concern. the other hand, ihe rulings of a board acting in its quazi judicial Reacting to the increasing calls for reform, numerous states capaciry are subject to review by certiorari and will be upheld !�ave adopted tegislation to change the local land usc decision- only if they are supported by substantial competent evidence. De making process. As onc of the leaders of this nafional reform, Groot v. Sheffreld, 95 So. 2d 912 (Fla. 1957). Florida adopted the Local Govcrnmcnt Comprchensive Ptanning Enactments af original zoning ordinances have always been Act of :975. Ch. 75-257, Laws of Fla. This lawwas substantially ��dered legislative. Gulf & Eastern Dev. Corp. v. Ciry of Fort strengthened in 1985 by the Growth Management Act. Ch. 85- Lcruderdale, 354 So. 2d 57 (Fla. 1978); County of Pasca v. 55, Laws of Fla. J. Dico, Inc., 343 So. 2d 83 (Fla. 2d DCA 1977). In Schauer v. Pursuant to the Growth Management �Act, each county and City of Miami Beach, this Court held that the passage of an municipality is required to prepare a comprehensive plan for amending zoning ordinance was the exercise of a legislative approvat by the Department of Community Affairs. The adopted �nction. 112 So. 2d at 839. However tho amendment in that ;ocal plan must incIude "principles, guidelines, and standards �e was comprehensive in nature in that it effxtcd a change in for the orderly and balanced future economic, social, physical, che zoning of a large area so as to permit it to be used as locations environmental, an.d fiscal development" of the local govern- for muldple faznily buildings and hotois. ld. In Ciry of lackton- ment's jurisdictional area. § 163.3177(1), Fla. Stat. (1991). At ville Beach v Grubbs and Palm Beach Counly v. Tinn�rn�an� the the minimum, the local plan must include elements covering district courts of appeal went further and held thai board action future land eise; capital improvements generalty; sanitary sewer, on specific rezoning applications of individual property owners solid waste, drainage, potable water, and natural ground water W� aiso legislative. GrirbGs, 461 So. 2d 163; Tnnerman, 517 aquifer protection specifically; conservation; recrcation and So. 2d at 700. open space; housing; tiaffic circulation; intergovernmental It is the character of the hearing that determines whciher or coordination; coastal management (for local government in the not board action is legislative or quasi judicial. CoralReef Nurs- coastal zone); and mass transit (for local jurisdictions with eries, Int. v. Babcodc Co., 410 So. 2d 648 (Fla. 3d DCA 1982). 50,000 or more people). Id. § 163.3177(6). Generally speaking. Icgislative action results in the formulation Of spxial relevance to local rezoning actions, the future land of a general cule of policy. whereas judicial actioa results in the use plan element of the local plan must contain both a future land application of a general rule of policy. Carl J. Pxkingpaugh, Jr., use map and goals, policies, and measurable objtetives to guido Comment, Burden of Proof in Land Use Regulations: A Unified future land use decisions. This plan element must dcsignate the Approach andApplication to Florida, 8 Fla. St. U. L. Rev. 499, "proposed future general distribution, location, and extent of the 504 (1980). In West Flagler Amusement Co. x State Raang uses of land" for various purposes. Id. § 163.3177(6)(a). It must ��sion, 122 Fla. 222, 225, 165 So. 64, 65 (1935}, we ex- include standards to be utjliud in the control and distribution of plained• densities and intensities of deve(opment. In addition, the future A judicial or quasi judiciai act deurmines the rules of [aw land use plan must bo based on adtquate data and analysis con- applicable, and the rights affected by them. in relation to ast ' ceming the local jurisdiction, including the projtcttd population, uansacdons. On the other hand� a quasi-legislative or admu�iis- the amount of land n�eded to accommodate the estimatai popula- tradve order prescribes what the rule or requirement of adminis- tion, the availability of public services and facilities� and the uatively deurmined dury shall be with respect to transacdoas to character of undevelopod land. Id. $163.3177(6)(a), be executed in the future. in order that samo sl�all be considered Th� lcxal plan must be impltmented through the adoption of lawful. But even so� quasi-legisladve and quasi-ezecuave or- land development ngutations that are consistent with the plan. ders, afur thty have already becn entered, may have a quasi- ld. § 163.3202. In addition� all development, both public and judiciat atuibuce if capable of being arrived at and provided by private, and all dev�lopment orders approved by local govern- law to be declarod by the adminisuative agency only after ez- ments must be eonsistent with the adopted locat plan. Id. press statutory notice, hcaring and consideration of evidence to § 163.3194(1)(a). Stction 163.3194(3), Florida Statutes (1991)� be adduced as a basis for d�e making tliereof. exptains consistency as follows: Applying this criterion. it is cvident that comprehensive (a) A clevcio�ment order or land dcvclopment �ebulation sl�all rezonmgs a(Tccting a largc portion of tl�e public arc leg�slativc in bc consistcnt w�di thc comprchensivc plan if thc land uscs. dcnsi- naturc. Howcvcr, �vc agrce w�th the court bclo�v whcn it s�id: iirc nr intn�c:r;no �nil ; ,r1�P. •�rnrMC nl'�ir. ni•rmi�tn l .�, . . . . . . .. . . , � •' � SUPREME COUR7' UI� f'LORIDA 18 �la t.. wcck�y ss25 �crsons or pro�crry owncrs, on idcntili:ibic partics and intcccsts, cnough simply to bc "consistcnt"; thc proposed change cannoc whcre tlic dccision is continbcnt on a fact ot facts arnvcd at from bc i��consistcnt, and will bc subjcct �o thc "strict scrutiny" of distina altcrnativc ,�rescntcd at a hcarin�, and whcrc thc dcci- Machadu to in�urc tliis docs not happcn. si��i can bc: fUnctionally vicwccl as policy application, rathcc tl�an (�19 So. �d at ]0��-0c�. poticy se:tinb, �rc in the natwe of ... quasi-judicial action .... This raises a c,uestion of whether the Growt}• Management Act S�:vder, 595 So. 2d at '78. Thcrefore, the board's action on provides any comfon to the landowner wheti the denial of the Snydcr's application was in the nature of a quasi-judicial pro- rezoning request is consistent with the comp�ehensive plan. It cceding and properly rcviewable by petition for certiorari.' could be argi�ed that the only recoursc is to pursue thc traditional We a}so agree w�th the court below that the review is subject remedy of attempting to prove that the denial of the appiication to strict scrutiny. In practical effect, the review by strict scrutiny was arbitrary, discriminatory, or unreasonable. Burntt v. Nar- in zoning +cases appears to be the same as that given in the review ris, 172 So. 2d 820 (Fla. 1965); Ciry of Naples v. Central Plaza of other quasi-judicial decisions. See Lee County v. Sunbelt Equi- of Naples, Inc. , 303 So. 2d 423 (Fla. 2d DCA 1974). Yet, the ties, 11, Ltd. Partnership, 619 So. 2d 996 (Fla. 2d DCA 1993) fact that a propoud use is consistent with the plan means that the (The term "strict scru[iny" arises from the necessity of strict planners contemplated that that use would be acceptable at some compliance with comprehensive plan.). lfiis term as used in the pomt in the future. We do not believe the Growth Managcment review of land use decis�ons must be distinguished from the type Act was intended to preclude development but only to insure that of strict scrutiny review afforded in some eonstitutional cases. it proceed in an orderiy manner. Compare Siryder v. B�ard of Counry Comm'rs, 595 So. 2d 65, Upon consideration, we hold that a landowner sceking to 75-76 (Fia. Sth DCA 1991) (land use), and Machado v. rezone property has the burden of proving thac the proposal is Musgrove, 519 So. 2d b29, 632 (Fla. 3d DCA 1987), review consistent with the comprehensive plan and complies with all denied, 529 So. 2d 693 (Fla. 1988), and review denied, 529 So. procedural requiremenu of the zoning ordinance. At this point, 2d 694 (Fla. 1988) (land use), wilh In re Estate of Greenberg, the burden shifts to the governmentaf boazd to demonsttate that 390 So. 2d 40, 42-43 (Fla. 1980) (general discussion of stnct maintaining the ezisting zoning classification with respect to the scrutiny review in context of fundamental rights), appeal dis- property accomplishes a legitimate public purpose. In effect, the missed, 454 U.S. 961, 101 S. Ct. 1475, 67 L. Ed. 2d 610 (1981), landowners' traditional remedies will be subsumed within this Florida Higf� Sch. Activities Ass'n v. Thomas, 434 So. 2d 306 rule, and the board will now have the burden of showing that the (Fla. 1983) (equal protection), and Depanment of Revenue v. refusal to rezone the property is not arbitrary, discriminatory, or Magazine Publishers of Asierica, Inc., 604 So. 2d 459 (Fla. unreasonable. If the board carries its burden, a landowner's only 1992j (First Amendment). remaining recourse will be to dcmonstrate that the ezisting zon- At this point, we depart from the rationale of the court below. ing classification of the property is confiscatory and thereby In the first place, thc opinion overlooks the premise that the com- constitutes a taking. prchensive p1an is intended to provide for the future use of land, While they may be useful, the board will not be required to which contemplates a gradual and ordered growth. See Ciry of make findings of fact. However, in order to sustain the board's lacksonvit[e Beach, 461 So. 2d at 163, in which the following action, upon review by certiorari in the circuit court it must be statement from Marracci v. City of Scappoose, 552 P.2d 552, shown that there was competent substantial evidence presented to 553 (Or. Ct. App. 1976), was approved: the board to support its ruling. Further review in the disuict court (A] compreliensive plan only establishes a long-range maximum of appeal will conunue to be govemed by the principles of C",tty of limit on the possibie intensiry of land use; a plan does not simu!- Deerfield Beach v. Yaillant. 419 So. 2d 624 (Fla. 1982). taneously estabtish an immediate minimum limit on the possible ' Based on the foregoing, we quash the decision below and intensiry of land use. The present use of land may, by zoning disapprove City oflacksonville Beach v. Grubbs and Paln: Beach ordinanc�, continue to be more limited than the future use con- Counly x Tinnerntan, to the extent they aze ineonsistent with this templated by the comprehensive plan. opinion. However, in the posture of this ease, we are t�cluctant to Even where a denial of a zoning application would be inconsis- preclude the Srryders from any avenue of relief. Because of the tent with the plan, the local government should have the discre- possibility that conditions have changed during the eztended tion to decide that the maximum development density should not lapse of time sincc their original applicauon was filed, we beiieve be allowed provided the govemmental body approves some that�ustice would be best served by permitting them to file a new development that is consistent with the plan aad the �ovem- application for rezoning of the property. The application will be ment's decision is supported by substantial, competent ev�dence. without prejudice of the rtsult reached by this decision and will Further, we cannot accept the proposition that once the land- allow the process to begin anew according to the procedure out- owner demonstrates that the proposed use is consistent with the lined in our opinion. comprehensive plan, he is presumptively entitled to this use It is so ordered. (BARKETT, C.J., and OVERTON, Mc- unless the opposmg governmental agency proves by clear and DONALD, KOGAN and HARDING� JJ., concur. SHAW, J., convincing evidence that specifically stated public necessity dissents.) requires a more restricted use. We do not believe that a property o�vner is necessarily entitled to relief by proving consistency 'One or more of thc amicus bricfs su�ests that Snyder's Rmcdy w�s to whcn the board aetion is also consistent with the plan. As noted in bring a de novo auion in circuit court pursuant to section 163.3215 Ftoriaa LEC COUt K Stutb¢I! uitleS 11 Linuted Partnershi . Snmus (1991). Hmvcver, in Parker v. Leai Counry, Nos. 80.230 znd 80,288 u3' F4 p� (Fla. Oct. 7, 1993). we explained dut this sutute only providu a Rmcdy for [AJbsent the assertion of some enforceabte property cighf. an thlcd partics w chalknge the consistenry of development orders. , a�plicauon for rezoning appeals at least in part to local officials' « � + discretion to accept or re�ect the ap�licant's ugument that change is desirablc. The rig/u of judic�al review does not ipso Trade nama infringement—Unfair competition—Name "First jaclo ease the burden on a party seekin� to overturn a decision Southern Bank", comprised of a laudatority descriptive term, a made by a tocal government� Annd certainly does not confer ury geographicalty descriptIve term, and a generic term, is, taken as property-bascd nght upon the owner where none previously a�vholc, mercly dcscriptive and cannot bc protccted absent a exuted. secondary meaning—Dilution—'Ilrial court based findiag of violation of dilution statutc on crroncous conctusion that namc is Moreover when it is the zoning classification that is cha!- not a dcscriptivc, gcographic or gcncric aamc—Remand for lenged, the comprchensivc �lan is relevant onty when the sug- determination of whethcr a sccondary mcaning has dcveloped, gestcd use is inconsistent w�th that plan. Wl�cre any of several and if so, �vhethcr dilution lias occurrcd zoning classifications is consistent wuh thc plan. d�c applicant GRL•AT SOUTiit•RIv BANK, Pcci�ioncr, vs. t�IRST SOU'['IIL•RN DANK, sccking a cliangc from onc to thc od�cr is not ci�tidcd to �udicial Rcs�orsdcnt. Suprcmc Court of florida Casc No. 8o,a�4. Ouobcr 7, 1993. relief absent proof the stauu quo is no longer reasonable. It is not Annlication for Rc�•icw of thc Decision of du District Court of Appe�! - Ceni- h ' SUPREr COURT OI� FL(�RIDA t9 t��r. [.. wcck�v st- Wc begin by rccognizing that thc various provisions of Flori- ��s�iy �i,� �si or «s�s wi�ich �re �ppro��d by �,c Depanmcnt < das implied conscnt laws, §§ 31G.1932-.34, F1�. St7t. (1989) Hcaid� and Rehabili�itive Services (or roliability of rtsult and fa uliry r; administration, nnd shall pmvidc �n appmvcd method of adminizt�u: : arc not a modcl of clarity. Hcrc, the district c.�urt has scizcd upon W��ch shall bc follou-cA in all such trsts rivcn unAu this scctior. (t1C diflcrcnt wordin� Of SU�SCCf10(1S � ��). �� l � i. :ltl�{ `;ub•,cction 31 G I'�i'(2)(b) pm�•i�lc: 31ti.1933(2)(b), Floeida Statutes (1989), to justify the distinetioci A ch^nucal tes of U�e person's blood to determine U�e aleoholic conte::: tt haS dC3wn. � HOwCVef, we are not �CCSUaded Ihat lhiS 1s what �hcreof must h�ve becn performed substantially in acconiancc wic:: thc legislaturc intended. Thc morc proper approach, ��e find, is mcthods approved by the Dcpartmcnt of Healtli and Rthzbiliativc Scr- vices and try an individual possessing a valid pertnit issued try the de- to read these provisions in pari materia as ezpressing a unified partment for this purposc. Tlu Dcpartmrnt uf Hulth and Reh�bilitati�e legislative purpose, since all of the three provisions at issue here Scrvices may approve satis(actory techniqucs or methods as«��n �r: are part of a unified package of law. See Roberlson, 604 So. 2d at qualifications and tompettnce of individuals eo conduct such analyses, 789 n .4. and issue permi�s which will bc subject to termination or revocauon a: In this light, we believe the more reasonable conclusion is that du discrztion o( the department. the legislature intended for HRS to "specify precisely the test or * * * [ests" that must be used as well as to " provide an approved 7. GwYNN PARKER, ec al., Pci;aoners, vs. LEON COUNTY, Rcsponder:. method of administration which shall be followed in all such Suptemc Court of Florida. Case No. 80.230. EMERALD ACRFS INVESi- teStS see § 316.1932(1)(�1., Fla. Stat. (1989), even in those MENTS, INC.. Petitioners, vs. 71-IE BOARD OF COUNTY COMMISSIOI:- .. ERS OF LEON COUNTY, et �1., Respondcnu. Case No. 80,288. Origina; instanees where blood is involuntarily withdrawn by operation of Opinion filcd Octobcr 7, 1993. Rcvised Opinion filcd Deceri�bc ��, t9v3. subsection 316.1933(2)(b), Florida Statutes (1989}. It therefore is incumbent upon HRS no[ merely to test particutar machines, �e petitioners' motion for clarification is granted as reflectec methods, or operators for accuracy, but also to specify the pre- �n the revised opinion. No petition for rehearing shall be allowed. cise blood-alcohol tesu and the method of administration ap- proved for use in this state. We thus must determine whether [Original Opinion at 18 Fla. L. Weekly 5521] these requirements have been met here. Editor's note: The penultimate paragraph of the opinion, at 1 S Rule lOD-42.028 authorizes two procedures for the testing of Fla. L. Weekly S522, is revised to read as follows: biood for alcohol content: alcohol dehydragenase and gas chro- We answer the certified question in the afi�irmative and disap- matography. This clearly meets the statutory requirement of p�ve Parker 1. We quash the decisions below and remand for specifying the approved test. However, Mehl contends that the P��ngs in the circuit court in accordance with the principles regulations do not provide an approved method of administra- of Board of Counry Commissioners v S�syder, No. 79,720 (Fla. tion. The State responds that under the rules a technician who Oct. 7, 1993) [18 Fla. L. Weekly S522). wishes to qualify for a pernut must submit to HRS the complete * * * description of the procedure w be used and must satisfactorily analyZe proficiency samples. The tests may only be pefformed BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY. by the permittee in a designated laboratory facility. Every three �RIDA, Petitioner, vs. JACK R. SNYDER, ee ux., Respondents. Supteme Coun oC Florida. Case No. 79,720. Original Opinion filed October 7, 1993. Rc- months, the pernuttee is given control samples to test to insure v�sed Opinion filed Decembcr 23 t�3. the accuracy of testing equipment and methodology. Each permit � Motion for Rehearing filed by Petitioner, having been must be renewed annually� and unsatisfactory test results man- considered in light of the revised opinion, is hereby denied. date termination of the permit. Because HRS approves the methodology of the applicant and [Original Opinion at 18 Fla. L. Weekly S522J tests proficiency before issuing a pernvt, we conclude that HRS , has met the statutory requirement of providing an approved ��tor s note: The second full paragraph of the right-hand col- method of administration. Therefore, the results of Mehl's blood umn at 18 Fla. L. Weekly S525 is revised to read as follows: test are not subject to suppression. Upon consideration, we hold that a landowner seeking to Notwithstanding our conclusion that HRS has sufi'iciently met rezone property has the burden of proving ihat the proposal is the statutory requirements, we believe that the public as well as consistcnt with the comprehensive plan and compIies with all those who may wish to obtain a testing permit should be apprised procedural requirements of the zoning ordinance. At this point, in advancc of alI approved methods of administering the test. the burden shifts to the grnernmental board to demonsuate that Therefore, beginning at 12:01 a.m. on April 1, 1994, the State maintaining the existing zoning classification with respect to the shall not be allowed the benefit of the presumptions established in property accomplishes a legitimate public pucpose. In effect, the section 316.1934, Florida Statutes (1989), unless (a) the State landowners' traditional remedies will be subsumed within this has established reasonably definite rules specifying the precise rule, and the board will now have the burden of showing that the methods of blood alcohol testing that are approved for use in this refusal to rezone the property is not arbiirary, discriminatory, or State, and (b) the State and its agencies substantially comply with unreasonabie. If the board carries its burden, the application these rules. Of course, even when the presumption is not avail- should be denied. able. the State should still have the benefit of the Robertson anal- * * * . ysis, upon a proper reguest. 'Paxation—Public utilities—Municipal corporations—Counties— The result teached by the district court below, but no[ its power plant owned Uy Orange County municipality and focated entire analysis, essentially is in hartnotry with what we hold here. in Brevard County is constitutionally exempt from taxation by Accordingly, both questions are answered in the affirmative $revard County even though plant does not prnvide any electric- subject to the qualifications herein. 'Ibe decision under review is ity to Brevard County residents—Where a municipality, pursn- appnoved, and this cause is retnanded to the trial couR for further ant to statutory authority, locatcs on its property In another proceedings consistent with our views. county an electrical generating plant which supplies most of its It is so ordectd. �3ARKETT, C.J., and OVERT�ON� Mc- electricity to such municipality's restdents and the remainder to DONALD. SHAW, GRIMES, KOGAN and HARDING, JJ.. pcivatc utility companics, but docs not supply any clectrical concur.) powcr to thc residcnts of si�ch county, such municipally owned property is exempt from ad valorem taxation 'Subseedon 316.1932(lxql. ptovides in pertinent part: lIM FORD, etc., Petitioner, vs. ORI.ANDO UTILITIES COMMISSION, erc., 'Itu rests detecminirtg the weight oC alcohol in the defendant's blood «�1•• �spondenct. SupRme Court of Florida. Case No. 81,440. lanuary G, shall be adminisurcd at the request of a law enforeement o(ficer sub- 1994. Application for Review o! the Decision of the District Court of Appcal - suntially in accortlance wiQi tules and reguladons which shall have been Cenificd Creat Public Imponance. SU� Distdct - Cau No. 92•539 & 92-G77 adoptcd by the Department of Heallh and Rehabili�tive Services. Sucl� (Drevard County). Frznk J. Griffi�h, Jr. of Cianfrot�tu, Tcl(er, Reda cC Fcher- _.,_, .. ....,..�,,:-.__ .4_�� .. ,a,.,.....� ,r.......�±;� ti,,.;.,,, ,�.,ii �,,,-�;r�, tv, P.A.. Titusvillc; Joc Tcacuc Catvso, Metritt Island: and Larry E. L..•�...