Opinion
No. 3D19-1203
05-06-2020
MIAMI-DADE COUNTY, Florida, Petitioner, v. PUBLIX SUPERMARKETS, INC., Respondent.
Abigail Price-Williams, Miami-Dade County Attorney, and Dennis Kerbel and Kevin Marker, Assistant County Attorneys, for petitioner. Greenspoon Marder LLP, and Louis J. Terminello, Miami, for respondent.
Abigail Price-Williams, Miami-Dade County Attorney, and Dennis Kerbel and Kevin Marker, Assistant County Attorneys, for petitioner.
Greenspoon Marder LLP, and Louis J. Terminello, Miami, for respondent.
Before HENDON, MILLER and LOBREE, JJ.
LOBREE, J.
Miami-Dade County (the "County") petitions for second-tier certiorari review of the circuit court's appellate division's order quashing its Community Zoning Appeals Board (the "CZAB") denial of a zoning special exception and nonuse variance sought by Publix Supermarkets, Inc. ("Publix"). Because we agree that the circuit court failed to observe the essential requirements of law in conducting its first-tier certiorari review, we grant the petition.
Factual and Procedural Background
Publix sought to open a liquor store close to one of its grocery stores. Zoning regulations generally prohibit alcoholic beverage retailers in commercial-zoned areas from being within 1,500 feet of each another. Because there existed at least one such retailer ("the objector") within 1,500 feet of the proposed location, Publix sought an exception, as well as a nonuse variance for year-round alcohol sales on Sundays.
At the hearing, the CZAB staff preliminarily recommended approval, noting the venture's minimal impact on the surrounding area and its compatibility with other zoning regulations, as well as recommending conditions for the use. Publix's counsel emphasized that, but for the County's "anomal[ous]" distance requirement, Publix would be entitled as of right to open its liquor store, as it has allegedly done in other Florida counties. To buttress its claim, Publix introduced a liquor survey at the hearing showing that the objector itself was within 1,500 feet of eight other similar retailers. The objector took part in the proceedings and opposed Publix, arguing that denial was required in light of the County's policy of reducing the harm of inappropriate drinking, the current saturation of the area with such establishments, a petition signed by some neighbors in opposition, and the likelihood that Publix's venture would put the objector out of business.
Publix argued that the only opposition to its applications was based on the speculative economic interest of the objector, whereas special exceptions and nonuse variances could only be denied if the express, relevant criteria of the code were not met by the applicant, which, in this case, were met. The CZAB denied the special exception because it "would not be compatible with the area and its development" and "would have an adverse impact upon the public interest," and denied the variance on the grounds that it "would not be in harmony with the general purpose and intent of the regulations." Successfully seeking first-tier certiorari in the circuit court, Publix obtained a decision quashing the CZAB's denial. The majority of the circuit panel held that the CZAB made insufficient findings, relevantly noting:
[The objector] did not meet its burden to demonstrate that Publix's requests fail to meet the standards and are adverse to public interest. See Jesus Fellowship, Inc. [v. Miami-Dade County], 752 So. 2d [708 (Fla. 3d DCA 2000) ]. The zoning appeals board afforded Publix procedural due process and complied with the essential requirements of the law. However, the zoning appeals board decision was not supported by competent substantial evidence.
In her dissent, however, Judge Muir argued that the correct standard was whether competent, substantial evidence in the record supported the CZAB's denial, not whether such evidence supported the objector's opposition. Charging error to the circuit court's decision on that same basis and arguing that it applied the incorrect law in reviewing the CZAB's denial, the County now seeks second-tier certiorari.
Certiorari Jurisdiction
On first-tier certiorari, a circuit court may make a full review of a zoning appeals board's decision by focusing on whether: (a) procedural due process was afforded by the agency; (b) the essential requirements of law were observed; and (c) its findings and decisions were supported by competent, substantial evidence. See Fla. Power & Light v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). On second-tier certiorari, this court may only consider "whether the circuit court applied the correct law, or ... departed from the essential requirements of law." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010). "A departure from the essential requirements of law is more than ‘simple legal error’ " but rather it is when "the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice." Fla. Wellness & Rehab. Ctr., Inc. v. Mark J. Feldman, P.A., 276 So. 3d 884, 888 (Fla. 3d DCA 2019) (quoting Custer, 62 So. 3d at 1092 ).
A circuit court's application of incorrect evidentiary standards in conducting first-tier certiorari can amount to a departure from the essential requirements of law. See, e.g., Dep't of Highway Safety v. Baird, 175 So. 3d 363, 366 (Fla. 3d DCA 2015) ; Jesus Fellowship, 752 So. 2d at 711 (quashing circuit court's order for failure to apply correct law governing both review of special exceptions and what constitutes as competent, substantial evidence in such cases); City of Dania, 761 So. 2d at 1094 (quashing circuit court's order and remanding for it to apply standard in City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), and to "review the record to determine simply whether the Commission's decision is supported by competent substantial evidence") (emphasis in original). Unless not supported by any competent, substantial evidence in the record as a whole, circuit courts must defer to an agency's findings. See Dep't of Highway Safety & Motor Vehicles v. Hirtzel, 163 So. 3d 527, 529 (Fla. 1st DCA 2015).
This case is controlled by City of Dania, 761 So. 2d at 1089. There, a zoning body denied an applicant's request for a special exception. Id. at 1090. On first-tier certiorari, reviewing only for competent, substantial evidence, the circuit court quashed the denial because, although applicants had met their burden of proof at the hearing, it concluded that the opponents had not, and their failure to show competent, substantial evidence invalidated the agency's decision. Id. On second-tier certiorari, the Fourth District Court of Appeal quashed the lower court's order, finding that it improperly "re-assess[ed] the record for competent substantial evidence," instead of determining whether "[t]he record as a whole contain[ed] substantial competent evidence to support a denial." Id. at 1091. The Florida Supreme Court subsequently agreed, holding that the circuit court applied the incorrect law when it resorted to determining whether the agency correctly applied the burden-shifting rule from Irvine v. Duval Cty. Planning Comm'n, 495 So. 2d 167 (Fla. 1986). City of Dania, 761 So. 2d at 1092.
City of Dania explains that the Irvine rule is a standard of proof that local government bodies alone must follow, requiring quasi-judicial officers to grant an exception if, after an applicant has met the initial burden of showing that the statutory criteria are met, the opponent fails to produce competent, substantial evidence that granting it would be adverse to the public interest. Id. The Vaillant standard, on the other hand, requires solely a circuit court's review of an agency's decision for due process, essential requirements of law, and competent, substantial evidence. Vaillant, 419 So. 2d at 625.
Here, as in City of Dania, the circuit court's sole rationale for quashing the CZAB's decision was that its findings were not supported by competent, substantial evidence, because its review of the proceedings purportedly revealed that the objector had failed to meet its burden of proof under Irvine. As noted by Judge Muir's dissent, the majority failed to review the entire record for any competent, substantial evidence supporting the CZAB's determination and findings, instead assessing the objector's showing and evidence. Publix's attempts to distinguish City of Dania and rely instead on Jesus Fellowship, 752 So. 2d at 708, are unavailing. Circuit courts must be vigilant to apply the standard of review outlined in Vaillant and not the standard of proof set forth in Irvine. See Town of Manalapan v. Gyongyosi, 828 So. 2d 1029, 1033-34 (Fla. 4th DCA 2002) ("The court appears to have applied the ‘competent substantial evidence’ standard of proof, as set forth in Irvine... , rather than the standard of review. It found the existence of competent, substantial evidence to support respondents’ assertion, which is not part of the review process outlined by Vaillant."); City of Jacksonville Beach v. Car Spa, Inc., 772 So. 2d 630, 632 (Fla. 1st DCA 2000) ("We conclude that the circuit court applied the wrong law to the extent that it failed to review the entire record to determine whether the Planning Commission's decision was supported by competent substantial evidence and, instead, reweighed the evidence, substituting its judgment regarding relative weight for that of the Planning Commission.").
In Jesus Fellowship, 752 So. 2d at 711, which predates City of Dania, this court's analysis of the sufficiency of the evidence was ancillary to the primary task on second-tier certiorari of determining whether the circuit court applied the correct legal standard of "competent, substantial evidence" in reviewing the agency's decision. Here, unlike Jesus Fellowship, the dispute is not whether the circuit court applied Vaillant incorrectly, but whether it applied it at all. It did not, and this was error.
This result does not mean that the circuit court could not have properly quashed the CZAB's resolution upon a proper application of the Vaillant standard, or additionally considered an appropriate challenge under Irvine. However, having ascertained from the face of the lower court's order that it applied the incorrect law by failing to apply Vaillant, this court's task on second-tier certiorari comes to an end, as further comment on the competency of the record would be a departure from settled law no less an exercise in "judicial tyranny" than the circuit court's error we now seek to correct. Compare City of Dania, 761 So. 2d at 1093 (disapproving of appellate court's comments on record below as themselves departure from law), with Vill. of Palmetto Bay v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19, 21 (Fla. 3d DCA 2012) (deeming such departures from law acts of judicial tyranny). For these reasons, we conclude that the circuit court applied incorrect law to the facts below, departing from the essential requirements of law. We return this case to the circuit court to apply the three-prong standard of review, and when applying the third prong, the court should review the record to determine simply whether the CZAB's decision is supported by competent substantial evidence. City of Dania, 761 So. 2d at 1094.
Petition for writ of certiorari is granted and the opinion below is quashed with directions for further proceedings consistent herewith.