On “second-tier” certiorari review from a zoning board decision, the district court may not review the constitutionality of the ordinance unless fundamentally defective or unjust. Miami –Dade County v. Omnipoint Holdings, Inc., 2003 WL 22208012 (Fla. Sept. 25, 2003)

Omnipoint Holdings, Inc. (“Omnipoint”) proposed to erect a telecommunications monopole on a site zoned for limited business use. The county’s zoning ordinance permitted telecommunications towers in limited business use districts only when “unusual use” exceptions are granted by the zoning board. County staff recommended approval of the application. However, the County zoning board denied Omnipoint’s application for an “unusual use” exception because the requested modification “would not be compatible with the area…[or] with the general purpose and intent of the regulations…and would have an adverse impact upon the public interest.”

On certiorari review, the circuit court quashed the zoning board’s decision finding no supporting competent, substantial evidence. The County petitioned the Third DCA for writ of certiorari. On second-tier certiorari review, the Third DCA sua sponte declared the relevant portions of the county code unconstitutional for lack of objective criteria to guide zoning boards. The County petitioned to invoke the Supreme Court’s discretionary jurisdiction based on the district court opinion’s conflict with decisions limiting the scope of second-tier certiorari review.

The Supreme Court found that a zoning board’s decision regarding an application for a special zoning exception can be reviewed first by the circuit court level and then by the district court. A “first-tier” review is a matter of right and the circuit court is limited to determining “(1) whether procedural due process is accorded, (2) whether the essential requirements of law have been observed, and (3) whether the administrative findings and judgement are supported by competent substantial evidence.” Second-tier review by the district court is limited to “whether the circuit court (1) afforded procedural due process, and (2) applied the correct law.” Thus, adequacy of the record and the constitutionality of an ordinance may not be reviewed under a petition for writ of certiorari because such a determination exceeds the scope of review. The district court may only review the constitutionality of an ordinance if fundamentally defective or unjust. Therefore, the Third DCA exceeded the scope of second-tier certiorari review by sua sponte holding the ordinance facially unconstitutional.


During second-tier review, the district court should not consider criteria beyond the local zoning regulation or the sufficiency of the evidence presented below. Miami-Dade County v. Omnipoint Holdings, Inc., 2003 WL 22900487 (Fla. 3d DCA December 10, 2003)

On remand from the Florida Supreme Court, the Third DCA again reviewed the circuit court’s certiorari decision. However, the district court’s review was limited to determining whether the circuit court applied the correct law.

In order to deny an application for an unusual exception, the zoning board must have shown by competent substantial evidence that the application did not meet the published criteria. When making its determination, zoning boards and the circuit court cannot add to or detract from the criteria established in the local regulations or base the decision upon anything other than the local regulation’s criteria. Therefore, when the circuit court considered the Federal Telecommunications Act, the court did not apply the correct law because the Federal Telecommunications Act was not part of the local zoning criteria.

However, the circuit court acted correctly when it concluded that the evidence in the record was not sufficient. Because a review of the sufficiency of evidence is not within the scope of second-tier review, the district court could not address the issue. Therefore, the district court denied the County’s petition for writ of certiorari.


An Early Detection Incentive Program Notification Application contained sufficient information to qualify as a “discharge reporting form” for purposes of the Petroleum Cleanup Participation Program. D’Alto v. Florida Dept. of Envt’l Protection, 28 Fla. L. Weekly D2542 (Fla. 1st DCA Nov. 6, 2003)

Paul D’Alto appealed the Department of Environmental Protection’s (“DEP”) final order denying his Early Detection Incentive Program Notification Application. The denial was based on the application’s failure to contain sufficient information to qualify it as a “discharge reporting form” under Section 376.3071(13)(a)(1), F.S. (2002). DEP argued that D’Alto’s selection of “unknown” from a list of response options for five of the twelve questions resulted his failure to provide information regarding the cause of the leak, type of petroleum product discharged or an estimate of the amount of petroleum lost and those failures were fatal to the site’s eligibility.

Despite these omissions, the application did identify the source of the contamination and that was sufficient to warrant a visit to the site from a departmental inspector. The contamination has since been verified independently. Because DEP was unable to show that the lack of information on the form prejudiced it, the First DCA reversed DEP’s denial of D’Alto’s application. The DCA found that the application contained sufficient information to qualify as a “discharge reporting form” under Section 376.3071(13)(a)(1), Florida Statutes (2002), and remanded the case for DEP to determine whether D’Alto is eligible to participate in the Petroleum Cleanup Participation Program.


To establish vested rights to develop property, a landowner must demonstrate good faith reliance upon Section 380.05(18) and a change of position, not merely recordation of the land. Monroe County v. Ambrose, 2003 WL 22900537 (Fla. 3d DCA December 10, 2003)

Ambrose, owners of undeveloped land platted and recorded in Monroe County between 1924 and 1971, sought declaratory relief regarding their rights under Chapter 380, Florida Statutes, and the effect of land development regulations adopted in 1986. The trial court granted summary judgment for the landowners, finding that Section 380.05(18), Florida Statutes, vested rights in the landowners to develop their land solely by virtue of the property’s platting and recordation.

On appeal, the Third DCA reversed and remanded, holding that the recordation of property alone does not establish vested rights. Under Section 380.05(18), a landowner’s right to develop will not be restricted when land is designated an area of critical state concern or when regulations are adopted, provided that the land recordation occurred before the land development regulations were approved for the area. Thus, the district court determined that the appropriate date for obtaining vested rights in the case at hand was September 15, 1986, the date Monroe County first adopted land development regulations relating to these parcels.

However, granting vested rights to landowners that have not begun developing their land would contradict the legislative intent of Chapter 380 to “protect the natural resources and environment of the state, preserve water resources, and facilitate orderly and well planned development.” Therefore, the district court held that landowners must also show that they “relied on Section 380.05(18), and changed their position in furtherance of developing their land” in order to obtain vested rights to develop property. The district court remanded the case back to the trial court to decide whether the landowners had vested rights prior to September 15, 1986, the date the first land development regulations were adopted, since subsequently adopted land regulations do not apply to landowners with vested rights. If the parcels were not vested and these regulations cause the property to become “practically useless,” the landowner is entitled to just compensation for the inverse condemnation for the land.


Where a local ordinance regulating setback requirements or zoning or building codes is equal to or more strict than a state statute, the local ordinance is not preempted under the Shore Preservation Act. GLA and Assoc., Inc. v. City of Boca Raton, 855 So. 2d 278 (Fla. 4th DCA Oct. 8, 2003)

In January of 1999, GLA and Associates, Inc. (“GLA”), a residential condominium developer, applied to the Department of Environmental Protection (DEP) for a permit for construction seaward of the state coastal control line. Finding no significant adverse impact, DEP approved the permit.

However, GLA began the construction without obtaining a permit from the City. The City denied GLA’s application based on the reduction of the dune elevation thereby resulting in DEP’s revocation of GLA’s permit. GLA sued claiming that the City ordinance requiring a permit to excavate was preempted by the state’s Beach and Shore Preservation Act (“Act”), Chapter 161, Florida Statutes, § 161.053(4). GLA claimed that since DEP did not approve the City’s ordinance, the state provision should apply over the ordinance.

The district court found that GLA was collaterally estopped from claiming preemption and inconsistency because the facial validity of the ordinance had been challenged by GLA’s predecessor. Collateral estoppel prevents “identical parties from relitigating the same issues that have already been decided.” In this case, GLA’s immediate predecessor in title had raised the same facial challenge to the ordinance, even though GLA proposed to excavate a dune and GLA’s predecessor proposed to build a swimming pool. Because GLA did not refute privity with its predecessor or refute that identical issues were raised, the court found that collateral estoppel applies to preclude relitigation of the issues.

Further, the district court found that regardless of whether collateral estoppel applied, the Shore Preservation Act did not preempt the City’s ordinance. Section 161.053(4), F.S., allows local government regulation in lieu of statutory provisions only when DEP has approved the local regulation and the local government has sufficient expertise and funds to preserve the beach and dunes. However, Section 161.053(5)(b), F.S., provides an exception that the “department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein.” Here, the City’s ordinance was considered more strict because it prohibited the excavation of a dune which was permitted under the state statute. Accordingly, the district court affirmed the final summary judgment of the trial court, finding that the statute does not preempt or conflict with the ordinance.


A well permit should not be granted if the proposed water use will interfere with presently existing legal uses, which includes water uses existing and exempt from permit requirements. Slusher v. Martin County, 2003 WL 22717601 (Fla. 4th DCA November 19, 2003)

Slusher, a fishpond owner petitioned for an administrative hearing alleging that the South Florida Water Management District (“District”) should not have granted a permit for a well operated by Martin County because the well caused all of the water to be drained from his pond. The District found that the permit was properly issued, even though the operation of the well adversely affected the pond.

The Fourth District reversed, concluding that the District misinterpreted its rules. Rule 40E-2.301(f), F.A.C., provides that a permit should not be granted if the proposed water use will interfere with presently existing legal uses. The Basis of Review for Water Use Applications Within the South Florida Water Management District is incorporated by reference into Rule 40E-2, FAC. Rule 40E-2.091, FAC. Section 1.8 of the Basis of Review defines “existing legal use” to include a water use “existing and exempt from permit requirements.” The District argued that the pond was not an “existing legal use” interpreting this definition to include only uses “existing and [expressly] exempt from permit requirements.” The Fourth DCA rejected the District’s tenuous interpretation and held that the pond was exempt from permit requirements and thus an existing legal use to which the County’s permit interfered.

Section 3.8 of the Basis of Review states that no permit should be issued if the withdrawal of water would cause an unmitigated adverse impact on an adjacent land use. An adverse impact includes a significant reduction in water levels to impoundments to the extent that the designed function of the water body is impaired. The District argued that the “designed function” of the pond was solely to provide fill for the construction of the adjacent house. However, the District’s expert, despite basing his testimony solely on speculation, later conceded that the “designed function” of the pond was subsequently changed to a fish pond.

The Fourth DCA not only found such testimony incompetent and insubstantial, but also rejected the District’s interpretation of “designed function” to mean “original designed function.” In reversing, the Fourth DCA found that the District’s decision to grant the permit is inconsistent with the F.A.C. and unsupported by competent substantial evidence.



Gary K. Hunter, Jr. is a Shareholder with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.B.A. and J.D. from the University of Georgia. D. Kent Safriet is an Associate with Hopping Green & Sams, P.A. in Tallahassee, Florida. He received his B.S. from Clemson University and his J.D. from the University of South Carolina. Mr. Hunter and Mr. Safriet practice primarily in the areas of environmental and land use litigation and solid and hazardous waste regulation.