E. P. JONES, CLYDE B. HILL, T. P. SHIELDS, TOM CURETON, JR., AND JOHN A. WATERMAN, AS AND CONSTITUTING THE ZONING BOARD OF ADJUSTMENT AND APPEALS OF THE CITY OF TEMPLE TERRACE, AND THE CITY OF TEMPLE TERRACE, A MUNICIPAL CORPORATION, APPELLANTS,
v.
RAYMOND J. SUAREZ AND FRANK B. SUAREZ, APPELLEES
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The Zoning Board of Adjustment and Appeals of Temple Terrace denied the Suarez brothers' special use permit application for a service station. When the Suarez brothers sought certiorari in circuit court, the circuit judge ordered the Board to rehear the matter and reconsider its decision. The appellate court reversed, holding that the circuit court should have proceeded under the governing statute rather than remanding to the Board for reconsideration.
The circuit court erred by relinquishing jurisdiction to allow the Board to reconsider its decision. The proper procedure, absent evidence that the Board did not hold an appropriate hearing, is for the circuit court to proceed under Florida Statutes Section 176.19, either by taking testimony itself or by appointing a referee—not by remanding to the interested Board for reconsideration.
“The effect of the order appealed from is to make the board whose actions are said to be wrong the referee to determine that question.”
Establishes the fundamental error in the circuit court's remand order—it improperly made the interested Board act as its own reviewer.
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Join FLexlaw to unlock all legal intelligenceThe Suarez brothers applied for a special use permit to erect a service station on land zoned for that use, subject to certain statutory findings. The…
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So far as the record before us shows, the Zoning Board of Adjustment and. Appeals of the City of Temple Terrace took evidence on the Suarez’ application for special use permit necessary to erect a service station on land otherwise zoned for that use provided certain findings were made, and after taking evidence found that the required showings were not made. Upon their petition to the circuit court for what Florida Statutes Section 176.16, F.S.A. calls “certiorari,” the circuit judge relinquished jurisdiction for thirty days for the purpose of allowing the Board to “make findings of fact and render a decision, after hearing additional testimony or evidence to determine whether the petitioners meet” the criteria specified in the ordinance. Both sides agree that this order is erroneous, the appellants contending that the court should have dismissed without prejudice to reapplication, and the appellees asserting that the court should have proceeded to take testimony or appoint a referee to do so pursuant to Section 176.19.
We do not suggest that there is never a situation in which such an order as this one might lie within the inherent power of the circuit court, but on the skimpy record before us there is no evidence that the zoning board did not hold an appropriate hearing and determine the appropriate questions. There is a recitation that it did, and no record to contravene that recitation. Thus the court should have proceeded pursuant to Section 176.19. The effect of the order appealed from is to make the board whose actions are said to be wrong the referee to determine that question. We need not determine whether the chancellor had, in view of specific statutory authority, the power to appoint a referee, nor whether Slatcoff v. Dezen, Fla.1954, 74 So.2d 59, and Powell v. Weger, Fla.1957, 97 So.2d 617, serve to restrict the exercise of that power. If we view the zoning body as a “referee” it is clearly lacking in impartiality: it is in fact a party. See Smith v. Dept. of Registration & Education, 1952, 412 Ill. 332, 106 N.E.2d 722. And the record of the board’s action being presumptively" adequate, we have' no basis for determining that it wrongly shunted off to the judiciary a problem best left to zoning authorities within the cities. We expressly reserve the question whether the courts have inherent authority to insist that local authorities perform their functions as the law requires prior to resort to the courts: it is not raised on this record.
*31Accordingly, the order relinquishing jurisdiction is reversed with directions to vacate it and proceed under the governing statutes. See Bay View Investments, Inc. v. Grigsby, Fla.App.1969, 219 So.2d 760.
PIERCE, A. C. J., and McNULTY, J., concur.
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Kitchens v. State, 240 So. 2d 321 (Fla. 1st DCA 1970)…, hears the testimony concerning the voluntariness of a confession and makes a determination thereof. In two decisions, Brown v. State, 181 So. 2d 578 (Fla.App.1966), cert. den. in Brown v. Wainwright, 188 So. 2d 814 (Fla.1966), and Allen v. State, 230 So. 2d 29 (Fla.App.1970), this court held that this long-time practice had been thoroughly established in Florida and that this prac [*323] tice was valid under the recent decision of the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct.…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Slatcoff v. Dezen, 74 So. 2d 59 (Fla. 1954)
- Frankenberry v. Stern, 97 So. 2d 617 (Fla. 1957)
- Powell v. Weger, 97 So. 2d 617 (Fla. 1957)
- BAY View Invs., Inc. v. Grigsby, 219 So. 2d 760 (Fla. 2d DCA 1969)