Conquering the maze of certiorari review of local government quasi-judicial land use decisions.

• Jurisdiction: United States
• Author: Hunter, Gary K., Jr.
• Date: 01 October 2004

For land use practitioners, there are few feelings worse than walking away from a county commission meeting in the dead of night after an hours-long quasi-judicial hearing which--despite your preparation--results in a defeat. Worse yet is waking up the next morning to the realization that you must prepare a petition for writ of certiorari. In an effort to ease uncertainties with this process, this article synthesizes the rules and cases applicable to certiorari review and offers a practical guide to the certiorari process.

* What are the deadline and requirements for filing a petition for writ of certiorari?

Rule 9.100(c) of the Florida Rules of Appellate Procedure requires that a petition for writ of certiorari be "filed within thirty (30) days of rendition of the order to be reviewed." (Emphasis added.) Rule 9.100(g) specifically requires that all petitions for certiorari contain at least the following: 1) the jurisdictional basis; 2) facts entitling petitioner to relief; 3) nature of the relief sought; and 4) argument with appropriate citations. The rule also requires that the petition have on its first page a caption appropriate for the court in which the petition is filed. If the action is a circuit court petition for writ of certiorari, Rule 9.100(f)(2) further requires that the caption contain a statement that the pleading is in actuality a petition for writ of certiorari filed pursuant to Rule 9.100. Typically, placement of a short statement such as "Rule 9.100 Petition for Writ of Certiorari" above the case number will satisfy the requirements of the rule.

The petition itself cannot exceed 50 pages in length. (1) Unlike the general rules regarding lengths of briefs filed in appellate proceedings, (2) Rule 9.100 makes no provision for petitions in excess of 50 pages.

* What local government decisions are reviewable via a petition for certiorari?

Quasi-judicial decisions of agencies, boards, and local government commissions not directly appealable by way of another provision of general law are reviewable via a petition for certiorari. (3) The Florida Supreme Court described quasi-judicial decisions as the application of existing policies as opposed to the formulation of new policies. (4) In the land use context, quasi-judicial decisions appropriate for certiorari review normally involve approval of site plans, (5) building permits, (6) rezoning applications, (7) plats, (8) special exception permits, (9) and any other development orders. (10)

Legislative decisions by local governments for which there is a remedy pursuant to Florida's Administrative Procedure Act are not reviewable via a petition for writ of certiorari in circuit court. For example, decisions regarding comprehensive plan amendments, (11) including small scale plan amendments, (12) are not appropriate for certiorari review in circuit court. (13) Additionally, the Florida Supreme Court recently clarified that constitutional challenges to local government action are not subject to certiorari review as the reviewing court is without power in a certiorari proceeding to declare the local government's decision violative of the federal or state constitution. (14)

* Must the local government's decision be in writing?

In most cases, no. Although the authors of this article agree with Justice Pariente's dissent in Broward County v. G.B.V., 787 So. 2d 838 (Fla. 2001), regarding the usefulness of written findings, as of yet, there is no universal requirement in Florida that quasi-judicial decisions by local governments be reduced to writing. However, exceptions to the general rule can be found in specific statutes. For example, the federal Telecommunications Act requires that the final decision of a local government regarding consideration of a request for a communications tower be made in writing. (15) Unless governed by a specific statutory requirement (and interpretive case law supporting the proposition that a decision is not final until reduced to writing), it should be assumed for purposes of calculating pertinent filing deadlines that a local government's decision is rendered on the day the vote is cast.

* Must an appendix be filed with the petition?

Yes. Rule 9.100(g) requires that a petition be accompanied by an appendix which comports with the requirements of Fla. R. App. P. 9.220 which in substantive part requires that the appendix contain "such portions of the record deemed necessary to an understanding of the issues presented." Florida courts have ruled on several occasions that lack of an appendix (16) or an insufficient appendix (17) is grounds for dismissal or denial of a petition for certiorari. Rule 9.100(g) also requires that the petition "contain references to the appropriate pages of the supporting appendix."

The appendix must be indexed and composed on 8 1/2 x 11 inch paper. (18) It must be either bound separately or separated from the petition itself by some type of divider or tab. (19) If the appendix is separately bound, the index will typically be captioned. If a written opinion exists, such as a resolution, a copy must be included in the appendix. (20)

The appendix must contain the decision for which review is sought if it has been reduced to writing. Beyond that, technically, the appendix is only required to contain that information necessary to an understanding of the issues raised by the petition. Typically, the appendix will contain items such as a transcript (if available), official minutes of the meeting(s), the application for development approval, and any exhibits introduced at the quasi-judicial hearing. Items in the appendix must be confined to those items which would otherwise be properly characterized as part of the "record." As such, newly created affidavits and other documents not presented at the quasi-judicial hearing are not appropriate for inclusion in the appendix.

* Does a record need to be transmitted that includes a transcript of the hearing?

No. Rule 9.100(i) specifically provides that no record be transmitted to the court except upon...