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Local Government: An “Agency” No Longer Entitled to Deference? A Review of Evans Rowing Club, LLC v. City of Jacksonville
October 12, 2020
By
In 2018, the Florida Constitution was amended to change the scope of the court’s authority when reviewing decisions by state agencies. Until then, a court was required to defer to the agency’s interpretation of state laws and rules. But under the 2018 constitutional amendment that created Article V of Section 21 of the Florida Constitution, courts are no longer allowed to defer to agency interpretations. Instead, they are required to make their own interpretation of state laws and rules when reviewing decisions of state agencies. Although this amendment appears to be limited to the court’s review of state agency decisions, one Florida court has raised the question of whether this amendment also applies to the court’s review of local land use decisions of local governments.
In Evans Rowing Club, LLC, v. City of Jacksonville, the First District Court of Appeal denied, per curiam, the plaintiff’s request for review of the City of Jacksonville’s decision to rescind the plaintiff’s certificate of use that had been previously issued by the City.[1] Although the court did not issue a majority written opinion, Justice Wolf, Justice Thomas, and Justice Makar provided special concurring opinions, each providing an explanation as to why denial of review was appropriate in light of binding Florida precedent. Specifically, the Justices agreed that the court’s review of zoning decisions is extremely limited.[2] In fact, an appellate court may only take up review in these certiorari proceedings where there has been a departure from the essential requirements of law that amounts to a miscarriage of justice.[3] In Evans, it was not readily apparent from the record before the court that this standard had been met. As a result, the Justices agreed not take up the review.
However, in his concurring opinion, Justice Thomas argued that the standard of review for second-tier certiorari should be modified in local land use cases like Evans because of the 2018 constitutional amendment limiting the court’s deference to administrative agency interpretations. Justice Thomas argued that local governments, like state and administrative agencies, are no longer entitled to deference in their interpretation of statutes and regulations. Thus, courts must exercise their independent judgment in reviewing these types of local government land use decisions. Justice Thomas even proposed the following question for certification to the Supreme Court:
SHOULD THE STANDARD OF REVIEW IN SECOND-TIER CERTIORARI CASES BE REVISED TO PROVIDE PLENARY REVIEW OF LOCAL ADMINISTRATIVE LAND-USE DECISIONS IN LIGHT OF THE CONSTITUTIONAL REQUIREMENT THAT COURTS MUST NOT DEFER TO STATE ADMINISTRATIVE DECISIONS?
Justice Thomas went on to make the same argument in another special concurring opinion in Neptune Beach FL Realty, LLC v. City of Neptune Beach, a case also denied for review per curium.[4]
In stark contrast, Justice Wolf argued in his Evans concurrence that Justice Thomas’s application of Article V, Section 21 of the Florida Constitution was woefully misplaced as the actual words of the constitutional amendment exclude local actions. The plain language of the constitutional provision, he argued, only applied to an administrative agency’s interpretation of state statutes or rules. (Emphasis added). Justice Wolf argued that local governments are not “administrative agencies” and the decision being reviewed is not an interpretation of state statutes or rules but rather an interpretation of a local land use regulation. Local land use regulations are not state statutes or rules. Further, Justice Wolf pointed out that the constitutional provision only refers to initial determinations by a court and not second tier review. Therefore, according to Justice Wolf’s reasoning, nothing in the constitutional amendment or public policy warranted a change in review of second tier certiorari cases.
Justice Makar’s concurrence did not address the constitutional amendment and its applicability to local governments. Instead, he noted that the lack of a written order in an important case involving property rights makes appellate review close to ineffectual. This is because the appellate court lacks a record of the trial court’s reasoning. Despite this clear issue with the current process, however, Justice Makar agreed that review in Evans is not appropriate.
The concurring opinions in Evans indicate that change may be on the horizon for how local government zoning decisions are reviewed by appellate courts. Clearly, Justices of the First District Court of Appeal are divided on the issue and about how Article V, Section 21 of the Florida Constitution should be interpreted. It will be interesting to see if and how other appellate courts address this question or if the Florida Supreme Court decided takes up the issue.
For more information on the Evans case, contact Nicole Poot at (727) 245-0820.
[1] 2020 WL 3286285 (Fla. 1 st DCA 2020).
[2] See, Miami Dade Cty. v. Omnipoint Holdings, 863 So. 2d 195, 199 (Fla. 2003).
[3] See e.g. Custer Med. Ctr. V. United Auto. Ins. Co., 62 So. 3d 1086, 1093 (Fla. 2010).
[4] 45 Fla. L. Weekly D1833 (Fla. 1st DCA, Aug. 3, 2020).
