Circuit Court erred in not applying law of the case doctrine on second appeal of a rezoning application denial. Parker Family Trust I, v. City of Jacksonville, 26 Fla. L. Weekly D2968 (Fla. 1st DCA December 17, 2001.

     Parker Family Trust I applied to rezone property within the City of Jacksonville. The City Planning Department recommended approval but the City Council denied the application following a quasi-judicial hearing. Parker sought review via a petition for writ of certiorari to the circuit court. The circuit court found that Parker demonstrated that the rezoning was consistent with the comprehensive plan, complied with all procedures of the land development code and the City’s denial was not based on competent substantial evidence. The circuit court then remanded for proceedings consistent with its order. The City’s application for district court review was denied.

     On remand, the City Council held another hearing wherein it allowed-- over objections from Parker-- opponents of the rezoning to present expert testimony regarding consistency with the comprehensive plan. Additionally, Parker and the City Planning Department offered evidence of other rezonings – occurring after the first hearing-- to establish consistency. After this second hearing, the City Council again denied the rezoning application. Parker then sought review of this second denial in the circuit court. Without addressing Parker’s arguments that the doctrine of law of the case required reversal of the council’s decision, the circuit court held that the opponents expert’s testimony constituted “competent, substantial evidence” and thus was an appropriate basis of denial by the City Council. Parker then sought “second tier” certiorari in the district court.

     Because Parker was accorded procedural due process the district court’s review was limited to whether the circuit court applied the correct law. The district court first noted that the doctrine of law of the case applies in successive appeals in the same case and applies to the circuit court’s first order as that order was appellate in nature. The court then noted that the doctrine does not apply in cases where different issues or facts develop in subsequent hearings. The Court recognized that the circuit court had resolved three issues of law in its first order that would invoke the doctrine of law of the case: (1) that Parker had demonstrated the rezoning was consistent with the comprehensive plan; (2) all procedures of the land development code had been met; (3) and the City’s denial was not based on competent substantial evidence. In reversing, the 1st DCA found that the circuit court erred by not first considering the doctrine of law of the case. In passing, the DCA impliedly questioned whether the competent substantial evidence prong was even relevant in deciding the second petition for writ of certiorari. Accordingly, the cause was remanded to the circuit court for further proceedings.


Environmental groups’ generalized interest in the environment held insufficient to establish standing. Florida Chapter of the Sierra Club v. Suwannee American Cement Company, Inc., 27 Fla. L. Weekly D100 (Fla. 1st DCA, December 31, 2001).

     Suwannee American Cement sought a permit from the Department of Environmental Protection (DEP) to construct a cement plant in Suwannee County. After DEP initially issued a Notice of Intent to Deny the permit, Suwannee American requested an administrative hearing, as did the Sierra Club and Save Our Suwannee, Inc. (SOS) arguing the existence of additional grounds upon which DEP should deny the permit. Prior to a hearing, DEP and Suwannee American agreed the permit would be issued. However, Sierra Club and SOS maintained that Suwannee American was required to establish that certain water quality standards would be met. After a hearing, the Administrative Law Judge disagreed and DEP issued a final order approving the ALJ’s recommended order. Sierra Club and SOS appealed and Suwannee American moved to dismiss the appeal arguing Sierra Club and SOS lacked standing.

     The 1st DCA first recognized that the standing requirements for an appeal under Section 120.68(1) Fla. Stat., are more stringent than for an administrative hearing. Relying on Legal Envt’l Assistance Foundation v. Clark, 668 So.2d 982, 987 (Fla. 1996), the DCA then rejected Sierra Club’s and SOS’s standing arguments. First, the court found SOS failed to assert that the final order created an “injury in fact” or an “adverse effect with respect to any of its individual members.” The court then rejected SOS’s argument that it had standing to appeal because it had standing to appear at the administrative hearing. Likewise, Sierra Club’s standing argument -- its members have standing because they use the river where alleged mercury discharges would occur and accumulate in fish -- was rejected. The Court found no facts of record concerning any individual member of the Sierra Club. Because a generalized interest in the environment is insufficient to establish standing, Sierra Club lacked standing for the appeal. The decision acknowledges conflict with the Fourth District Court of Appeal’s decision in Challancin v. Florida Land & Water Adjudicatory Comm’n, 515 So.2d 1288 (Fla. 4th DCA 1987) to the extent that holding was not overruled sub silencio by LEAF.
 

First District Court of Appeal construes newly added “competent substantial evidence” standard (Section 120.52(8), Fla. Stat.) in a rule challenge case. Florida Board of Medicine v. Florida Academy of Cosmetic Surgery, Inc., 27 Fla. L. Weekly D230 (Fla. 1st DCA, January 23, 2002).

     This case summary is intended to inform the reader of the 1st DCA’s recent interpretation of a significant provision of the APA regarding rule challenges. The subject matter of the case itself involves rules regulating the administration of anesthesia by nurse anesthetists and those issues are not discussed in this analysis.

     As a recently added provision to the APA, Section 120.52(8)(f), Fla. Stat., has yet to be interpreted by an appellate court. Subsection (f) expanded the definition of “invalid exercise of legislative discretion” by stating that a “proposed or existing rule is invalid exercise of legislative discretion if . . . the rule is not supported by competent substantial evidence.” Naturally, with the issue being one of first impression, the Court was presented with contrasting interpretations of subsection (f).

     The DCA recognized initially the Supreme Court’s observation in Florida Power & Light Co., v. City of Dania, 761 So.2d 1089 (2000), that the term “competent substantial evidence” has two different meanings. One meaning refers to a standard of proof when it is applied at the fact-finding level. The other meaning refers to a standard of review and is “tantamount to legally sufficient evidence.” In the standard of review sense, “the reviewing body may not reweigh the evidence, make determinations regarding credibility or substitute its judgment for that of the agency, even if the record contains some evidence supporting a contrary view.” The DCA then decided that it was the intent of the legislature to give subsection (f) the “standard of review” meaning analogizing a rule challenge hearing (although technically a de novo hearing) to certiorari review of a local government quasi-judicial action.

     The Court, in arriving at its decision, noted that to give the term a different meaning would turn the rule making process on its head by giving ALJ’s the final say on the wisdom of rules thereby effectively stripping the agencies of their special expertise to adopt rules in the subjects of their expertise. Accordingly, the Court held the ALJ erred by reweighing the evidence relied upon by the agency in adopting the rule, reassessing the credibility thereof, and substituting his judgment for that of the Board. [Ed. Note. This holding brings to question the traditional de novo hearing heretofore conducted by the ALJ. The Court’s holding seems to require an ALJ to sit in an appellate capacity limited to a review of the material before the agency when it made its decision as opposed to the evidence later placed into the record during the administrative hearing.]


Section 73.032(5) Fla. Stat., prohibits an award of attorneys fees and costs to the landowner where the judgment is equal to or less than a rejected offer of judgment despite the condemnor not filing a timely motion for sanctions under Rule 1.442(g), Fla. R. Civ. P.  Department of Transp. v. Enterprising Prof. Inv. Co., 27 Fla. L. Weekly D265 (Fla. 2d DCA, January 25, 2002).

     A judgment for Enterprising Professional Invest. Co. (EPIC) was entered for $65,000 in an eminent domain proceeding against the Florida Department of Transportation (FDOT). EPIC then moved for expert fees and litigation costs. Both parties agreed at this motion hearing that FDOT had previously made an offer of judgment for more than the $65,000 judgment. The trial court granted EPIC’s motion for fees and costs rejecting FDOT’s argument that Section 73.032(5) Fla. Stat., precluded EPIC from recovering fees and litigation costs. In so ruling, the trial court accepted EPIC’s argument that to deny them fees and costs based on a prior offer of judgment was a sanction within the meaning of Rule 1.442, Fla. R. Civ. P. Thus, because FDOT failed to make a timely motion for sanctions, EPIC was awarded fees and costs.

     On appeal, the 2nd DCA reversed finding Section 73.032(5), Fla. Stat., is a substantive legislative enactment -- not a sanction governed by the procedural requirements of Rule 1.442, Fla. R. Civ. P. Accordingly, the case was remanded with instructions to the trial court to determine whether any of the fees and litigation costs were precluded by Section 73.032(5), Fla. Stat.


Land Development Code Amendments held invalid for failure to strictly follow notice provisions of Section 166.041, Fla. Stat. Coleman v. City of Key West and Henshaw v. City of Key West, 27 Fla. L. Weekly D3 (Fla. 3d DCA, December 19, 2001).

     The City was attempting to adopt Ordinance 98-31 which would regulate (or halt) the transient use of residences. As such, the ordinance is one that would “change the permitted uses within the City’s residential zoning category” and therefore must be enacted pursuant to the notice requirements of Section 166.041(3)(c)(2), Fla. Stat. This section requires two public hearings prior to adoption of the regulations. The first hearing must be held at least seven days after the first advertisement, while the second hearing must be held at least five days after advertisement. The dispute only concerns the second hearing which was originally advertised on October 30, 1998 for a hearing on November 4, 1998. The November 4, 1998 hearing was canceled due to an approaching tropical storm and was later rescheduled for November 10, 1998 with the advertisement being first published on November 8, 1998.

     The district court, citing multiple cases, held that ordinances falling within the ambit of Section 166.041(3), Fla. Stat., must be strictly enacted else they are null and void. Although recognizing that an approaching tropical storm is a very good reason to cancel a hearing, it is not a reason for failing to comply with the notice requirements. To the contrary, the Court stated strict compliance with the notice requirements were even more important to assure that the opportunities for participation were not lost because of the “havoc and confusion” likely caused by the storm.
 

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.