KATHERINE S. ODHAM, ETC., ET AL., APPELLANTS,
v.
MICHAEL N. PETERSEN ET AL., APPELLEES
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Neighbors of a property owner challenged a county zoning board's decision granting a special exception for greyhound dog kennels. The circuit court required them to elect between certiorari and trial de novo review, they chose certiorari, and the court denied their petition. The district court affirmed, holding that the zoning board's decision was supported by evidence and did not depart from essential legal requirements.
The circuit court correctly required the election of remedies because section 163.250, Florida Statutes allows review either by certiorari or trial de novo, but not both. The circuit court properly denied the certiorari petition because the zoning board's decision was supported by evidence on each of the six required criteria and did not depart from essential legal requirements, even though the board did not make specific written findings on each factor.
[1] A party aggrieved by a zoning decision may seek judicial relief by certiorari or by trial de novo, but not both.
[2] A circuit court order denying certiorari review of an administrative action is reviewable by plenary appeal in a district court of appeal.
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Join FLexlaw to unlock all legal intelligence“Section 163.250, Florida Statutes (1979), under which appellants sought judicial relief in the circuit court provides that review is to be sought either by certiorari or by trial de novo, but not both and the circuit court was correct in requiring appellants to elect between those remedies.”
Establishes that the statute mandates election between remedies and the circuit court properly required such election
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Join FLexlaw to unlock all legal intelligenceThe Volusia County Board of Adjustment granted a special zoning exception allowing construction of greyhound dog kennels on Peterson's property. Neigh…
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COWART, Judge.
The Volusia County Board of Adjustment granted a special zoning exception permitting construction of greyhound dog kennels on appellee Peterson’s property. Appellants, Peterson’s neighbors, aggrieved by this decision, filed a two count complaint in the circuit court demanding review of the zoning decision by certiorari and by a trial de novo. The trial court required appellants to make an election between those two remedies. Appellants elected the remedy of certiorari. After review the trial court denied certiorari. On this appeal appellants contend the trial court erred in requiring an election of remedies and in denying their petition for certiorari.
Section 163.250, Florida Statutes (1979), under which appellants sought judicial relief in the circuit court provides that review is to be sought either by certiorari or by trial de novo, but not both and the circuit court was correct in requiring appellants to elect between those remedies.1
Appellants’ election of review by certiorari, rather than by a trial de novo, established the character of the circuit court’s judicial action as that of review and, accordingly, its decision is not a final order of a trial court, acting as such, as is ordinarily reviewable by appeal to district courts of appeal under Florida Rule of Appellate Procedure 9.030(b)(1)(A); rather, it is a final order of the circuit court acting in its review capacity, normally reviewable by certiorari in district courts of appeal under Florida Rule of Appellate Procedure 9.030(b)(2)(B).
However, we denied appel-lees’ motion to dismiss this appeal because article V, section 4(b)(1), Florida Constitution, provides that “district courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court.”2 Since the circuit court action became, by appellants’ election, an original proceeding to review the administrative action of a county zoning board of adjustment, we have jurisdiction to review by plenary appeal. See County of Volusia v. Transamerica Business Corp., 392 So. 2d 585 (Fla. 5th DCA Dec. 31, 1980) [1981 F.L.W. 157]. Our conclusion does not appear to be consistent with Phipps v. Board of Adjustment, 388 So. 2d 317 (Fla. 4th DCA 1980).
Appellant argues that certiorari review in the circuit court should be in the nature of a trial de novo and that the scope of review on this appeal should be similarly broadened. Appellant reasons that since certiorari review under the old municipal zoning statute (§ 176.17, Fla.Stat. (1971)) was considered as being “in the nature of an original proceeding de novo,” Josephson v. Autrey, 96 So. 2d 784 (Fla.1957), the scope of certiorari review under section 163.250, Florida Statutes (1979), should be the same. This does not follow. The earlier statute was broadly interpreted because old section 176.19 allowed the trial court to take evidence in the statutory certiorari proceeding.
Section 163.250, Florida Statutes (1979), separates the one former hybrid proceeding into an election between two more classic judicial proceedings: a trial de novo according to the Florida Rules of Civil Procedure, or an original proceeding for certiorari re view under the Florida Appellate Rules. Appellants did not elect a trial in circuit court with the consequent right to broader review here of the evidence and law involved in a trial. On this appeal the substance of our review can be no broader than that of the circuit court sitting in certiorari review and its scope of review was only to determine that the appellee county board of adjustment was acting within its jurisdiction and that in acting on the petition for a special exception the board did not depart from the essential requirements of law.
However, in this plenary appeal from an order of the circuit court sitting in its certiorari review capacity our review authorizes us to determine if the circuit court was correct in its decision as a matter of law rather than our review being limited, as it would have been on certiorari, to a mere determination of whether the circuit court itself had jurisdiction and did not depart from the essential requirements of law.
Therefore in this appeal we must look at the action of the board of adjustment in the exact same manner as did the circuit court but for the purpose of determining if the circuit court’s conclusion was correct as a matter of law.
The Volusia County Code, section 51-11(A)(4), provides six criteria upon which evidence must be presented to warrant a special exception. There was evidence on each of these factors in the record before the circuit court supporting a finding in favor of a special exception and it is not the function of either certiorari or appellate review to re-weigh the board’s determination of the weight of the evidence. Campbell v. Vetter, 392 So. 2d 6 (Fla. 4th DCA 1980); Campbell v. Vetter, 375 So. 2d 4 (Fla. 4th DCA 1979); Chastain v. Civil Service Board of Orlando, 327 So. 2d 230 (Fla. 4th DCA 1976).
Once the ordinance criteria was established it was the board’s duty to grant the special exception unless the board also determined (as it did not) that such use would adversely affect the public interest. Rural New Town, Inc. v. Palm Beach County, 315 So. 2d 478 (Fla. 4th DCA 1975).
It is not an essential requirement of law that every fact finder make a formal written finding as to each factual determination. A conclusion includes an implied finding as to all factors necessary to that conclusion.
Therefore, the board’s failure to specifically state its findings, as contemplated by the ordinance, is not such a departure from essential requirements as law as to have required the circuit court to have quashed the board’s grant of a special zoning exception.
Accordingly, the circuit court’s order denying certiorari is
AFFIRMED.
DAUKSCH, C. J., and ORFINGER, J., concur. . Appellants argue that both certiorari and declaratory relief was allowed in a zoning controversy in Orange County v. City of Apopka, 299 So. 2d 652 (Fla. 4th DCA 1974), and in City of Apopka v. Orange County, 299 So. 2d 657 (Fla. 4th DCA 1974). Those cases merely illustrate that while certiorari, or a statutory remedy, is the proper action to review a decision made under an ordinance, a suit in equity for declaratory relief is the proper way to challenge the validity or constitutionality of an ordinance. In the cited cases the City of Orlando did both. See Bama Investors, Inc. v. Metropolitan Dade County, 349 So. 2d 207 (Fla.3d DCA 1977), cert. denied, 359 So. 2d 1217 (Fla.1978).
. Even if this were not the case, the motion would still have been denied because Florida Rule of Appellate Procedure 9.040(c) directs that when an improper remedy is sought, this court must treat the cause as if the proper remedy had been sought.
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Cited By (14 total)
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Cherokee Crushed Stone, Inc. v. City OF Miramar, 421 So. 2d 684 (Fla. 4th DCA 1982)…ee Save Brickell Avenue, Inc. v. City of Miami, 393 So. 2d 1197 (Fla. 3d DCA 1981) holding that certio-rari is the appropriate vehicle to reach the district court where the proceeding in the circuit court was an appeal. (2) Odham v. [*687] Petersen, 398 So. 2d 875 (Fla. 5th DCA 1981), which also bases review by appeal of a circuit court order entered on review of administrative action on Article V, Section 4(b)(1). See also County of Volusia v. Transamerica Business Corp., 392 So. 2d 585 (Fla. 5th DCA 1980),…
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Irvine v. Duval Cnty. Planning Comm'n & the City Of Jacksonville, 466 So. 2d 357 (Fla. 1st DCA 1985)…that the scope of our review by appeal from a denial of common law certiorari would be to determine whether the trial court acted within its jurisdiction, and whether the court departed from the essential requirements of law. Cf., Odham v. Petersen, 398 So. 2d 875 (Fla. 5th DCA 1981). . No contention is made here that the trial court was requested, and refused, to take judicial notice of other ordinance provisions pursuant to Section 90.202, Florida Evidence Code, Florida Statutes (1983). . It should be not…
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THE Fla. Cos. v. Orange Cnty., 411 So. 2d 1008 (Fla. 5th DCA 1982)…urt was acting in review of administrative action, appellant had a right of appeal from the circuit court’s order denying certiorari to the district court of appeal. McCray v. County of Volusia, 400 So. 2d 511 (Fla. 5th DCA 1981); Odham v. Petersen, 398 So. 2d 875 (Fla. 5th DCA 1981); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So. 2d 296 (Fla.3d DCA 1979); contra, City of Deerfield Beach v. Vaillant, 399 So. 2d 1045 (Fla. 4th DCA 1981). Since this court is acting on plenary appeal from denial…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Norton Josephson v. Autrey, 96 So. 2d 784 (Fla. 1957)
- The City OF Apopka v. Orange Cnty., 299 So. 2d 657 (Fla. 4th DCA 1974)
- Warriner v. Maxine Hotel Corp., 96 So. 2d 784 (Fla. 1957)
- Rural NEW Town, Inc. v. Palm Beach Cnty., 315 So. 2d 478 (Fla. 4th DCA 1975)
- Campbell v. Vetter, 392 So. 2d 6 (Fla. 4th DCA 1980)
- Chastain v. Civil Serv. Bd. OF Orlando, 327 So. 2d 230 (Fla. 4th DCA 1976)
- Orange Cnty. v. The City OF Apopka, 299 So. 2d 652 (Fla. 4th DCA 1974)
- Bama Invs., Inc. v. Metro. Dade Cnty., 349 So. 2d 207 (Fla. 3d DCA 1977)
- The Cnty. OF Volusia v. Transamerica Bus. Corp., 392 So. 2d 585 (Fla. 5th DCA 1980)
- Campbell v. Vetter, 375 So. 2d 4 (Fla. 4th DCA 1979)