Broward County v. G.B.V. International, Ltd.

We have for review G.B.V. International, Ltd. v. Broward County, 709 So.2d 155 (Fla. 4th DCA 1998), based on conflict with City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), and numerous other decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve in part and quash in part G.B.V. as explained below.

I. FACTS

■ G.B.V. International (“G.B.V.”) owns thirty acres of undeveloped land in the City of Coconut Creek (“City”) within Bro-ward County (“County”) on which it seeks to build 300 garden-style apartments in an area termed Sawgrass Exchange. G.B.V. sought to amend the Broward County Land Use Plan (“BCLUP”) to change the designation of this parcel from “Industrial” to “Residential,” and to allow a density of ten dwelling units per acre. The Broward County Planning Council (“Planning Council”) reviewed the proposed amendment and recommended approval of the change in designation but at a density of only five units per acre. The Broward County Commission (“Commission”) at a meeting on December 12, 1995, voted to tentatively transmit the amendment as proposed, i.e., at ten units per acre, to the Florida Department of Community Affairs (“Department”) to see if the amendment would pass state muster. After the Department indicated that the amendment would pass, the Planning Council reviewed the amendment anew and again recommended adoption at a density of five units per acre. The Commission at a meeting on May 1, 1996, discussed the matter at length with G.B.V. and ultimately adopted the amendment at a compromise density of six units per acre.

G.B.V. several months later sought approval of a perimeter plat for the Saw-grass Exchange development at a density of ten units per acre. At the Commission meeting on November 12, 1996, G.B.V. explained that it recently had obtained approval from the City to use “flex” units to make up the additional four units per acre that it had been denied earlier. G.B.V. pointed out that due to its use of City flex units the following now obtained: (1) Its plat comported with the BCLUP; (2) no further amendment to the BCLUP was required; (3) the plat met all the objective requirements for approval; and (4) the County staff had recommended approval. The Commission by oral vote following general discussion approved the plat application but at a density of six units per acre rather than the requested ten.

G.B.V. sought certiorari in the circuit court, arguing that the Commission should have approved the plat at ten units per acre. The court denied the petition, ruling inter alia that G.B.V. was estopped from bringing its claim because G.B.V. had misrepresented its position on flex in the proceedings before the Commission. G.B.V. then sought certiorari in the district court. The court granted certiorari, quashed the circuit court order, addressed the underlying plat controversy, and remanded for entry of an order approving the plat at ten units per acre.

We granted review based on conflict with numerous decisions of this Court holding that a district court’s role on “second-tier” certiorari review is limited to the two-step assessment set forth in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). Broward County contends that the district court exceeded the scope of its authority on certiorari review. G.B.V. concedes that conflict exists but contends that the district court ruled properly.

II. THE APPLICABLE LAW

A decision granting or denying a site plan or plat application is governed by local regulations, which must be uniformly administered. The allocation of burdens expressed in Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla.1986), is applicable to such proceedings:

[O]nce the petitioner met the initial burden of showing that his application met the statutory criteria for granting such [applications], “the burden was upon the Planning Commission to demonstrate, by competent substantial evidence presented at the hearing and made a part of the record, that the [application] requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.”

Irvine, 495 So.2d at 167. To deny a plat application, a local government agency must show by competent substantial evidence that the application does not meet the published criteria. Once the agency has denied the application, the developer may seek judicial review via the writ of certiorari, as explained below.

The common law writ of certiora-ri is a special mechanism whereby an upper court can direct a lower tribunal to send up the record of a pending case so that the upper court can “be informed of’ events below and evaluate the proceedings for regularity. The writ functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists. The writ is discretionary and was intended to fill the interstices between direct appeal and the other prerogative writs. The writ never was intended to redress mere legal error, for common law certiorari — above all — is an extraordinary remedy, not a second appeal.

Florida courts have adapted the common law writ of certiorari for use in various scenarios, including the following: (1) to review actions of local government agencies; (2) to review decisions of circuit courts acting in their appellate capacity; and (3) to review nonfinal, nonappealable orders of lower tribunals, e.g., discovery orders. The first category of adjudicatory action, i.e., actions of local government agencies, is in issue in the present case. This category comprises local agency action that is not otherwise subject to review under the Administrative Procedure Act and is further divided into two subgroups: quasi-judicial actions and legislative actions. As a rule, only quasi-judicial actions are reviewable via certiorari.

The Court in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), delineated the standards of review for local agency action at both the circuit and district court levels. The inquiry at both levels is deliberately circumscribed out of deference to the agency’s technical mastery of its field of expertise, and the inquiry narrows as a case proceeds up the judicial ladder. “First-tier” certiorari review is three-pronged, and “second-tier” certiorari review is two-pronged:

Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine [1] whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] whether the administrative findings and judgment are supported by competent substantial evidence. The district court, upon review of the circuit court’s judgment, then determines [1] whether the circuit court afforded procedural due process and [2] applied the correct law.

Vaillant, 419 So.2d at 626. In brief, first-tier certiorari review is not discretionary but rather is a matter of right and is akin in many respects to a plenary appeal, whereas second-tier certiorari review is more restricted and is similar in scope to true common law certiorari.

Consistent with the limited purpose of this writ, the Court long ago delineated the narrow range of options that are available to a reviewing court on certiorari review. The role of the reviewing court in such a proceeding is to halt the miscarriage of justice, nothing more:

On certiorari the appellate court only determines whether or not the tribunal or administrative authority whose order or judgment is to be reviewed has in the rendition of such order or judgment departed from the essential requirements of the law and upon that determination either to quash the writ of certiorari or to quash the order reviewed.

When the order is quashed, as it was in this case, it leaves the subject matter, that is, the controversy pending before the tribunal, commission, or administrative authority, as if no order or judgment had been entered and the parties stand upon the pleadings and proof as it existed when the order was made with the rights of all parties to proceed further as they may be advised to protect or obtain the enjoyment of their rights under the law in the same manner and to the same extent which they might have proceeded had the order reviewed not been entered.

The appellate court has no power in exercising its jurisdiction in certiorari to enter a judgment on the merits of the controversy under consideration nor to direct the respondent to enter any particular order or judgment.

Tamiami Trail Tours v. Railroad Commission, 128 Fla. 25, 174 So. 451, 454 (1937) (on rehearing). This limited range has been addressed by the district courts, and the modern trend in this Court’s decisions has been to further restrict — not expand — the scope of this writ.

III. THE PRESENT CASE

As noted above, although the County staff recommended approval of G.B.Y.’s plat application at ten units per acre, the Commission approved the application at only six units per acre. The circuit court denied G.B.V.’s petition for certiorari, ruling that the Commission’s decision was legislative in nature and that G.B.V. was estopped from raising its claim because G.B.V. had misrepresented its position on flex in its application before the Commission. This ruling was improper. First, the Commission decision was a quasi-judicial, not legislative, function and was reviewable via certiorari. Second, rather than limiting its review of the Commission decision to the three “first-tier” factors set forth in Vaillant, the court embarked on an independent review of the plat application and made its own factual finding based on the cold record (i.e., the court determined that G.B.V. had misrepresented its position on flex). In other words, instead of simply reviewing the record to determine inter alia whether the Commission’s decision was supported by competent substantial evidence, the court combed the record and extracted its own factual finding. The court thus exceeded the scope of its authority under Vaillant.

At the district court level, the court granted certiorari and quashed the circuit court decision, concluding that the decision “was a departure from the essential requirements of law.” This ruling was proper. As explained above, according to the plain language of its order, the circuit court made its own factual finding based on the cold record. The circuit court thus applied the wrong law (i.e., instead of applying the Vaillant standard of review, the court applied an independent standard of review), and this is tantamount to departing from the essential requirements of law (as the district court ruled).

The district court proceeded to evaluate the merits of the Commission’s decision and remanded for entry of an order directing the Commission to approve the plat at ten units per acre. This was improper. Pursuant to Vaillant, the district court’s role on second-tier certiorari review was limited to a two-pronged review of the circuit court decision, not a de novo review of the agency decision. Once the district court granted certiorari and quashed the circuit court order — i.e., once the court halted the miscarriage of justice — the district court’s job was ended. By conducting its own de novo assessment of the plat application, the district court arrogated to itself the authority of the Commission and functioned as a kind of roving “super agency.”

IV. CONCLUSION

As in Florida Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000), we decline to conduct our own review of the present record to determine whether the Commission’s decision is supported by competent substantial evidence, for to do so would usurp the first-tier certiorari jurisdiction of the circuit court. Instead, we return this case to the circuit court and direct that court to apply the three-pronged standard of review set forth in Vaillant. Notably, when applying the third prong, the court should review the record to determine simply whether the Commission’s decision is supported by competent substantial evidence.

As explained above, a local government agency may deny a plat application only if the agency demonstrates that the applicant failed to meet the objective legal requirements for approval. Thus, for the County to prevail on remand, the record must contain competent substantial evidence to support the conclusion that G.B.V. failed to meet the County’s published criteria for plat approval. Otherwise, the Commission’s decision must be quashed.

We note that the Commission did little to facilitate judicial review or to bolster its own decision; it made no findings, stated no formal reason for its decision, and issued no written order. Although the Court in Board of County Commissioners v. Snyder, 627 So.2d 469, 476 (Fla.1993), recommended but did not require written findings of fact in a quasi-judicial proceeding, our ruling in that case has been called into question in subsequent years. Accordingly, we refer the following matter to the Rules of Judicial Administration Committee of The Florida Bar for study: Whether the Court should implement a rule requiring written final decisions with detailed findings of fact in local land use actions that are subject to review in the courts.

Based on the foregoing, we approve in part and quash in part the district court decision in G.B.V. as explained herein.

It is so ordered.

HARDING, LEWIS and QUINCE, JJ., concur.

WELLS, C.J., concurs with an opinion.

PARIENTE, J., dissents with an opinion, in which ANSTEAD, J., concurs.

. Flex units are a discretionary component built into the BCLUP that gives the City the right to shift a certain number of planned dwelling units from one area within the City to another as long as the overall number of units within the City is not increased. For instance, if a developer seeks to build 100 apartments at a density of ten units per acre on a ten acre tract that is slated under the BCLUP for five units per acre, the developer, rather than asking the County to amend the BCLUP, can ask the City for 50 units of flex. If the City grants the request, the project would then comport with the BCLUP and no amendment would be necessary. The City, in turn, would be required to lessen the density in another area of the City by a total of 50 units at a rate of five units per acre. The total number of flex units allowed the City under the BCLUP is finite.

. The court ruled as follows: (1) G.B.V. was estopped from raising the claim on certiorari because G.B.V. had obtained transmittal approval and a compromise density of six units per acre from the Commission by promising that G.B.V. would not seek flex units from the City, and then G.B.V. had reneged on that promise and obtained flex units to make up the remaining four units per acre; (2) even if estoppel did not bar the claim, G.B.V. would lose on the merits for two reasons, (a) the Commission's decision was legislative in nature and would be sustained as long as it was “fairly debatable," which it was, and (b) the proposed change was incompatible with surrounding land uses; and finally, (3) no error occurred here but if one did, it did not rise to the level of a departure from the essential requirements of law, which is the standard that must be met before certiorari relief can be granted. In making its ruling, the circuit court relied on the minutes of the December 12 meeting and a transcript of the May 1 meeting.

.The district court ruled that the circuit court had departed from the essential requirements of law by deciding an issue (i.e., estop-pel) that had not been raised below and by relying on non-record evidence (i.e., the County had submitted to the circuit court the minutes of both the December 12 and May 1 land use meetings, and a transcript of the May 1 meeting). After thus deciding the cer-tiorari issue, the district court went on to address the merits of the underlying plat controversy and determined that the Commission should have approved the plat as proposed. In conclusion, the district court did the following: (1) It granted certiorari; (2) it quashed the order of the circuit court; and (3) it remanded for entry of an order directing the County to approve the plat at ten units per acre.

. See generally Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12, 15 (Fla.1994) (“Corn, not Boynton Beach, accurately states the law concerning appellate review of decisions of local governments on building permits, site plans, and other development orders. These local government decisions are quasi-judicial in nature and thus subject to certiorari review by the courts.”); see also Board of County Comm’rs v. Snyder, 627 So.2d 469, 474 (Fla.1993) ("Generally speaking, legislative action results in the fomulation of a general rule of policy, whereas judicial action results in the application of a general rule of policy.”).

. See generally William H. Rogers & Lewis Rhea Baxter, Certiorari in Florida, 4 U. Fla. L.Rev. 477 (1951).

. See, e.g., DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957) ("The writ is available to obtain review in such situations when no other method of appeal is available.”); see also William A. Haddad, The Common Law Writ of Certiorari in Florida, 29 U. Fla. L.Rev. 207, 214 (1977) ("Certiorari is a catch-all writ in the sense that it may be used to review orders and decisions not otherwise subject or review at that time.”).

. See, e.g., Combs v. State, 436 So.2d 93, 96 (Fla.1983) ("A district court may refuse to grant a petition for common-law certiorari even though there may have been a departure from the essential requirements of law.”).

. See generally DeGroot; see also Haddad, supra note 6.

. See, e.g., Haines City Community Dev. v. Heggs, 658 So.2d 523, 526 (Fla.1995) ("[C]er-tiorari should not be used to grant a second appeal."); id. at 526 n. 4 ("[I]f the role of certiorari was expanded to review the correctness of the circuit court's decision, it would amount to a second appeal. If an appellate court gives what amounts to a second appeal, by means of certiorari, it is not complying with the Constitution, but is taking unto itself the circuit courts’ final appellate jurisdiction and depriving litigants of final judgments obtained there.”); Combs v. State, 436 So.2d 93, 96 (Fla.1983) ("The district courts should use this discretion cautiously so as to avert the possibility of common-law cer-tiorari being used as a vehicle to obtain a second appeal.”).

. See William A. Haddad, “Writ of Certiorari in Florida,” in The Florida Bar, Florida Appellate Practice, § 18.3 (3d ed.1993); see also Phillip J. Padavano, Florida Appellate Practice, § 9.7 at 160 (2d ed.1997). See generally Allstate v. Boecher, 733 So.2d 993 (Fla.1999) (addressing certiorari review of discovery orders).

. See Haddad, supra note 10.

. See, e.g., Bd. of County Comm’rs v. Snyder, 627 So.2d 469 (Fla.1993); see also Martin County v. Yusem, 690 So.2d 1288 (Fla.1997); see generally Hirt v. Polk County Bd. of County Comm’rs, 578 So.2d 415 (Fla. 2d DCA 1991).

. See cases cited supra note 12.

. See Haddad, supra note 6 at 207.

. Haines City Community Dev. v. Heggs, 658 So.2d at 530 ("As a case travels up the judicial ladder, review should consistently become narrower, not broader.”).

. See also Educ. Dev. Center v. City of West Palm Beach, 541 So.2d 106 (Fla.1989) (reaffirming Vaillant). The Court later explained that the two second-tier requirements, i.e., "afforded procedural due process” and "applied the correct law,” are simply another way of deciding whether the lower court "departed from the essential requirements of law.” Haines City Community Dev., 658 So.2d at 530.

. See Florida Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000).

. See, e.g., Snyder v. Douglas, 647 So.2d 275, 279 (Fla. 2d DCA 1994) (”[0]n certiorari an appellate court can only deny the writ or quash the order under review. It has no authority to take any action resulting in the entry of a judgment or orders on the merits or to direct that any particular judgment or order be entered.''): ABG Real Estate Dev. Co. 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’n, Inc., 403 So.2d 476, 478 (Fla. 5th DCA 1981) ("[Ajfter review by certiorari, and appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders.”).

. See, e.g., Florida Power & Light; Educ. Dev. Center; see also Haddad, supra note 6, at 221 (“An examination of common law certiorari cases in recent years reveals a trend toward restricting the scope of review so that the reality of the extent of review on certiorari is to a large degree commensurate with the rhetoric of limited review.”).

. The circuit court reasoned as follows: (1) At the December 12 transmittal meeting, as a quid pro quo to the Commission for tentatively transmitting the amendment as proposed, G.B.V. promised not to seek flex units from the City; (2) at the May 1 land use meeting, as a quid pro quo to the Commission for considering a compromise density, G.B.V. again indicated that it would stay within the amendment process and would not seek flex; and (3) G.B.V. then obtained flex units from the City to make up the extra four units per acre that the Commission had been unwilling to approve.

. See cases cited supra note 4.

. The district court stated that the circuit court relied on evidence and decided an issue (i.e., misrepresentation) that had not been presented to the Commission. This statement was incorrect. First, the records of the earlier Commission meetings were available to the Commission at all times-they were the Commission's own records. Second, the misrepresentation issue had been raised and discussed before the Commission. (When G.B.V. presented its application at the November 12 meeting, the commissioners asked G.B.V.'s counsel if he had promised earlier not to use flex and counsel replied that he had done so but only if the Commission approved a density of ten units per acre. The commissioners questioned the accuracy of this response but ultimately moved on to discuss other matters.) The district court thus reached the right result albeit for the wrong reason. Cf. Combs v. State, 436 So.2d 93, 96 (Fla.1983) ("Since the trial court reached the right result, albeit for the wrong reasons, the affirmance [was proper].'').

. See discussion and cases cited supra note 16.

. The district court in the present case, as in Florida Power & Light Co. v. City of Dania, 761 So.2d 1089 (Fla.2000), may have felt obligated to address the merits of the plat application because the circuit court below consisted of a single judge who had made factual findings on first-tier certiorari review. Both the present case and Florida Power & Light arose in the Seventeenth Judicial Circuit where local court rules permit a single judge to sit as the circuit court when conducting first-tier certiorari review. In contrast, local court rules in other judicial circuits call for the circuit court to sit in multi-judge panels in such cases. We have referred this matter to the Rules of Judicial Administration Committee of The Florida Bar for study. See id. at 1094.

. The fact that the County staff recommended approval of the plat is not dispositive. On first-tier certiorari review, the circuit court’s task is to review the record for evidence that supports the agency's decision, not that rebuts it-for the court cannot reweigh the evidence. See, e.g., Haines City Community Dev., 658 So.2d at 530; Educ. Dev. Center, 541 So.2d at 108. Thus, the staff recommendation is outside the scope of the inquiry at this point.

. See, e.g., T.R. Hainline, Jr. & Steven Diebe-now, Snyder House Rules? The New Deference in the Review of Quasi Judicial Decisions, Fla. B.J., Nov. 2000, at 53.