City of Dania v. Florida Power & Light

718 So. 2d 813, 1998 Fla. App. LEXIS 10300, 1998 WL 17935
CourtDistrict Court of Appeal of Florida
DecidedAugust 12, 1998
Docket97-1657
StatusPublished
Cited by5 cases

This text of 718 So. 2d 813 (City of Dania v. Florida Power & Light) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Dania v. Florida Power & Light, 718 So. 2d 813, 1998 Fla. App. LEXIS 10300, 1998 WL 17935 (Fla. Ct. App. 1998).

Opinion

718 So.2d 813 (1998)

CITY OF DANIA, Petitioner,
v.
FLORIDA POWER & LIGHT, a Florida corporation, Respondent.

No. 97-1657.

District Court of Appeal of Florida, Fourth District.

January 21, 1998.
Order Denying Rehearing August 12, 1998.

*814 E. Bruce Johnson, Michael T. Burke, and Christine M. Duignan of Johnson, Anselmo, Murdoch, Burke & George, Fort Lauderdale, for petitioner.

Jean G. Howard, Miami, for respondent.

PARIENTE, BARBARA J., Associate Judge.

Petitioner, City of Dania (City), timely seeks certiorari review of an order of the circuit court, sitting in its appellate capacity, which quashed the City's decision to deny Florida Power & Light's (F P & L) petition for a special zoning exception. We grant certiorari because we conclude that the circuit court substituted its evaluation of the evidence for that of the City and further imposed an improper legal burden on the City in reversing the denial of the zoning request.

F P & L applied for a special zoning exception to build an electrical substation on a parcel in the City zoned C-2 commercial, which adjoined residential property. According to the City code, the use of the property for an electrical substation is not a permitted use, but may be allowed by special exception. See Dania City Code § 6.40.

The City Planning & Zoning Board recommended denial of the application. After a de novo review and a public hearing on the application, where both sides presented testimony, the City Commission voted to deny the application.

The Dania City Code provides that "special exception uses ... shall be permitted only upon authorization by the city commission provided that such uses shall be found by the city commission to comply with" seven requirements. § 6.40. The City defends its decision to deny the application based on its assertion that F P & L's proposal for an electrical substation failed to meet two of the seven requirements for a special exception use:

(c) That the use will not cause substantial injury to the value of other property in the neighborhood where it is to be located.
(d) That the use will be compatible with adjoining development and the intended purpose of the district in which it is to be located.

§ 6.40(c),(d).

In its petition for certiorari to our court, the City asserts that because there was sufficient lay and expert testimony to support the City's denial of a special exception, the circuit *815 court impermissibly substituted its judgment as fact finder for that of the City. The City further argues that the circuit court erred by imposing a higher burden of proof for denial of an application than the law requires when it stated that the City's burden was "especially heavy where ... the special exception request is for essential services." We agree with both arguments.

Our review of the circuit court's decision is limited to a determination of whether the circuit court applied the correct law, which is synonymous with a determination of whether the circuit court departed from the essential requirements of law. See Haines City Community Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995).

We first address the City's argument that the circuit court departed from the essential requirements of law by concluding that F P & L met its burden of showing that the use of the property for an electrical substation complied with the criteria set forth in the City code, and conversely that the City did not meet its burden of showing adverse harm to the public interest.

When a circuit court reviews a local administrative action by certiorari, the circuit court functions not as the fact finder, but in its appellate role.[1] Accordingly, its review of findings of fact is extremely limited:

[C]ertiorari in circuit court to review local administrative action under Florida Rule of Appellate Procedure 9.030(c)(3) is not truly discretionary common-law certiorari, because the review is of right. In other words, in such review the circuit court functions as an appellate court, and, among other things, is not entitled to reweigh the evidence or substitute its judgment for that of the agency.

Id. at 530 (citations omitted) (emphasis supplied). Thus, when a circuit court reverses the zoning decision of a city commission because it disagrees with the evaluation of the evidence, the circuit court has applied the wrong standard of review to the decision. See City of Fort Lauderdale v. Multidyne Med. Waste Management, Inc., 567 So.2d 955, 957 (Fla. 4th DCA 1990); Metropolitan Dade County v. Blumenthal, 675 So.2d 598, 608-09 (Fla. 3d DCA 1995).[2]

F P & L argues that this court cannot again review the issue of whether there was substantial competent evidence to support the City's decision. While we are mindful that our task is not to reweigh the evidence, see Haines, 658 So.2d at 530, it is part of this court's responsibility to determine whether the circuit court exceeded its scope of review and substituted its own factual findings for those of the City. See Multidyne, 567 So.2d at 958; Blumenthal, 675 So.2d at 606. If we failed to grant relief where a single circuit court judge sitting in his appellate capacity disregarded substantial competent evidence relied on by a governmental entity in making a zoning decision, this could, in itself, constitute a miscarriage of justice.

In Pompano Beach Police & Firemen's Pension Fund v. Franza, 405 So.2d 446 (Fla. 4th DCA 1981), this court, in quashing the decision of the circuit court, held that:

The question of the weight and credibility of the evidence is for the administrative agency and not the reviewing court, even though the court may have reached a different conclusion on the same testimony. The court should not substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses.

Id. at 447 (quoting Metropolitan Dade County v. Mingo, 339 So.2d 302, 304 (Fla. 3d DCA 1976)). The test is not whether the circuit court would have reached the same conclusion based on the evidence, but "whether *816 there was any substantial competent evidence upon which to base the commission's conclusion." Multidyne, 567 So.2d at 957.

F P & L asserts that the testimony of the citizens cannot be relied upon in denying a petition for a zoning exception, citing Pollard v. Palm Beach County, 560 So.2d 1358 (Fla. 4th DCA 1990). This case is distinguishable from Pollard where our court concluded that there was "literally no competent evidence" to support the denial of the special exception because the denial was based only on the unsubstantiated comments of area residents. 560 So.2d at 1360; see also City of Apopka v. Orange County, 299 So.2d 657, 659-60 (Fla. 4th DCA 1974). Here, the City heard from members of the public and from expert witnesses on both sides of the controversy. Therefore, we need not reach the decision whether the testimony of the area residents alone would have been sufficient to support a denial of a special exception.

The role of the governmental entity is to arrive at sound decisions affecting the use of property within its domain. This includes receiving citizen input regarding the effect of the proposed use on the neighborhood, especially where the input is fact-based. See Grefkowicz v.

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