Zoning Appeals: Have We Been Doing This Wrong for 30 Years?
Since the end of 1993, Florida land use and zoning lawyers have been taught the basics: a rezoning hearing is quasi-judicial in nature and appeals of the decision go to circuit court on certiorari review. Why is this? Because the Florida Supreme Court in Board of County Commissioners of Brevard v. Snyder told us so. Looking back, the lawyers associated with this case read like a who’s who of local government practitioners at the time, including my first boss.
I learned this concept first in law school and then witnessed its implementation as a baby lawyer at the Hillsborough County Attorney’s Office in the late 1990s. It has been a routine part of my time in private practice, and still is — I handled a zoning hearing just a few weeks ago that was quasi-judicial and have another one in a week.
Have we been wrong all these years? On first review, an order coming out of Hillsborough County in Liberty Hospitality Management LLC v. City of Tampa seems to say we’ve all missed a fundamental issue. In a 33-page order, the court determined that it did not have jurisdiction to issue a writ of certiorari concerning a rezoning dispute under Article V, Section 5 of the Florida Constitution.
The background of the case is a routine zoning dispute: the petitioner asks for a rezoning, the city council denies it, and the petitioner seeks certiorari review to challenge the result. There are likely thousands of such cases alleging similar facts in the more than 30 years since Snyder. The court here raised the issue of subject matter jurisdiction on its own and both parties argued in extensive detail that the court possessed jurisdiction.
The court disagreed. It held that an express power must be granted by the Florida Constitution to issue such a writ. Without it, the court held that issuing such a writ would raise concerns about the mandated separation of powers. The court goes further and questions whether the city council is even authorized to exercise quasi-judicial power, something it has done for many, many years.
To get to this holding, the court provides a historical analysis beginning with the framers of the Florida Constitution, cites Abraham Lincoln, references King George III, and quotes French political philosopher Charles de Montesquieu. It distinguishes a number of other major zoning cases before and after Snyder and determines that subject matter jurisdiction was an unresolved question.
The court offers a historical analysis of the separation of powers back to medieval England and dismisses the requested writ, saying: “The powers of our government are separated because the founders of our nation experienced tyranny that flowed from consolidation of power. Because of their wisdom and lived experience, we have a Constitution that says that if someone in government has the powers of one branch of government, then that person may not exercise the powers assigned to another branch, unless the Constitution specifically says so.”
So where does this leave us? In my view, with more questions than answers. By denying the writ, it can be argued that the rezoning denial is now final. But by calling into question the zoning authority of the city, does it instead open the door to attacks on the very police power that underlies our regulation of land use? Are we heading back to the pre-Snyder times where rezonings are considered legislative in nature, giving city councils much more latitude, or are we entering a period where we will fight about whether the government can even regulate the use of land without a constitutional amendment? What about chapters 163 and 166 (and likely chapter 125) of the Florida Statutes, are they constitutional as written? To quote a line so well delivered by Bill Murray in the original “Ghostbusters,” the reaction of the land use bar seems to be: “Human sacrifice! Dogs and cats living together! Mass hysteria!”
We will see what happens next and will continue to provide updates on this novel result.
