NATIONAL ADVERTISING COMPANY, PETITIONER,
v.
BROWARD COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, JAMES MAURER, EDWIN HEISS, JOSEPH M. CLARK, EVE SAVAGE, TONY MIGLIONICO, AL HINES, LONNIE JACKSON, AS MEMBERS OF THE BROWARD COUNTY BOARD OF ADJUSTMENT, RESPONDENTS
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National Advertising Company challenged a circuit court's decision that quashed a variance granted by the Broward County Board of Adjustment for an oversized billboard. The appellate court affirmed the quashing of the variance but reversed the portion of the order directing removal of the sign, holding that certiorari review does not extend to directing affirmative actions.
The circuit court properly found insufficient evidence supported the variance under county code requirements and correctly quashed the Board's decision. However, the circuit court exceeded its certiorari review authority by directing removal of the sign, as certiorari review is limited to denying the writ or quashing the order reviewed.
[1] A board of adjustment must make specific findings required by a county code before approving a variance.
[2] Argument of counsel does not constitute evidence for purposes of satisfying statutory or code requirements.
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Join FLexlaw to unlock all legal intelligence“argument of counsel does not constitute evidence”
Establishes that petitioner's counsel's argument alone could not support the variance finding
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Join FLexlaw to unlock all legal intelligenceIn 1980, National Advertising Company obtained a permit to place a billboard at the intersection of Interstate 95 and State Road 84 in Broward County.…
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HERSEY, Chief Judge.
National Advertising Company petitions this court for issuance of a writ of certiorari to the lower court which, acting in its appellate capacity, quashed a variance granted to petitioner by the Broward County Board of Adjustment. With one excep tion, we find the issues raised by petitioner to be without merit.
In 1980 petitioner secured a permit to place a billboard at the intersection of Interstate 95 and State Road 84 in Broward County. In violation of both the terms of the permit and the Broward County Code, petitioner constructed a billboard which exceeded thirty-five feet in height.
Upon issuance by the county of a notice of violation, petitioner sought a variance from the Broward County Board of Adjustment. Section 5-19(2)(d) of the Broward County Code requires that certain findings be made by the Board before such a variance may be approved. After a hearing— but without making the requisite findings — the Board voted unanimously to grant the variance.
The county then petitioned for certiorari review in circuit court to have the variance quashed, and in July 1985 the petition was granted. The circuit court found that insufficient evidence was presented to the Board to allow the Board to find that the criteria set forth in the county code had been met. The court thus concluded that the Board failed to proceed in accordance with the essential requireihents of law. In addition, the court directed the county to “pursue its remedies for the removal of the sign....”
We conclude that the circuit court did not depart from the essential requirements of law in its finding of insufficient evidence. We note that the argument of petitioner’s counsel was the only “evidence” presented in support of petitioner’s contention that it had met the necessary criteria. This court has repeatedly admonished that “argument of counsel does not constitute evidence.” Hewitt, Coleman & Associates v. Lymas, 460 So. 2d 467, 468 (Fla. 4th DCA 1984), rev. denied, 471 So. 2d 43 (Fla.1985); see also Leon Shaffer Gol-nick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982).
We agree, however, with petitioner’s contention that the circuit court exceeded the scope of its review by certiorari where it directed the county to take steps to have the sign removed, rather than merely quashing the variance. A court’s certiorari review power does not extend to directing that any particular action be taken, but is limited to denying the writ of certiorari or quashing the order reviewed. See Tamiami Trail Tours, Inc. v. Railroad Commission, 128 Fla. 25, 174 So. 451 (1937); Gulf Oil Realty Co. v. Windhover Ass’n, 403 So. 2d 476 (Fla. 5th DCA 1981).
In conclusion, we quash that portion of the lower court’s order directing the county to take steps to have petitioner’s sign removed, but finding no departure from the essential requirements of law in any other respect, the petition is otherwise denied.
CERTIORARI GRANTED in part; DENIED in part.
DOWNEY and WALDEN, JJ., concur.
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Broward Cnty. v. G.B.V. Int'l, Ltd., 787 So. 2d 838 (Fla. 2001)…o. v. St. Johns County, 608 So. 2d 59, 64 (Fla. 5th DCA 1992) ("A court's certiorari review power does not extend to directing that any particular action be taken, but is limited to quashing the order reviewed.”); Nat’l Adver. Co. v. Broward County, 491 So. 2d 1262, 1263 (Fla. 4th DCA 1986) ("A court's certiorari review power does not extend to directing that any particular action be taken, but is limited to denying the writ of certiorari or quashing the order reviewed.”); Gulf Oil Realty Co. v. Windhover Ass’…
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Tynan v. Dep't of Hwy. Safety & Motor Vehicles, 909 So. 2d 991 (Fla. 5th DCA 2005)…2d 838 (Fla.2001); Snyder v. Douglas, 647 So. 2d 275 (Fla. 2d DCA 1994); ABG Real Estate Dev. Co. of Florida, Inc. v. St. Johns County, 608 So. 2d 59 (Fla. 5th DCA 1992), cause dismissed, 613 So. 2d 8 (Fla.1993); Nat’l Adver. Co. v. Broward County, 491 So. 2d 1262 (Fla. 4th DCA 1986); Gulf Oil Realty Co. v. Windhover Ass’n, Inc., 403 So. 2d 476 (Fla. 5th DCA 1981). See also William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L.Rev. 207, 225 (1977). We think that implicit in the circui…
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City OF Fort Pierce v. Gloria and John H. Dickerson, 588 So. 2d 1080 (Fla. 4th DCA 1991)…ously held, a court’s certiorari review power does not extend to directing that any particular action be taken, but is limited to denying the petition for writ of certiorari or quashing the order reviewed. National Advertising Co. v. Broward County, 491 So. 2d 1262, 1263 (Fla. 4th DCA 1986). Thus, we reverse the order denying the motion to dissolve the temporary injunction and remand to the trial court with instructions to dissolve the temporary injunction. Although the Dickersons improperly filed a complaint…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982)
- Tamiami Trail Tours, Inc. v. Fla. R.R. Comm'n, 128 Fla. 25 (Fla. 1937)
- Gulf OIL Realty Co. v. Windhover Ass'n, Inc., 403 So. 2d 476 (Fla. 5th DCA 1981)
- Hewitt v. Lymas, 460 So. 2d 467 (Fla. 4th DCA 1984)