Brannock Berman & Seider Achieves Rare Victory in Second-Tier Certiorari Petition
In a precedent-setting opinion, the Second District Court of Appeal embraced Brannock Berman & Seider’s arguments for its client, a Manatee County concrete and rock crushing company, and granted second-tier certiorari review to quash a circuit court appellate decision against the company.
After approving the company’s plans to build a construction services establishment, the County also approved a residential development next to the company’s property. When the homeowners began to complain almost a decade later, the County issued a notice of a code enforcement violation to the company. This notice, which essentially required the company to stop work altogether, claimed that the company did not have site plan approval to conduct concrete or rock crushing.
The company sought a public hearing under the County’s applicable land development regulations, but the County insisted that the company was not entitled to a public hearing, only review by a code enforcement special magistrate. The magistrate ruled against the company, which then appealed to the circuit court under a Florida law granting a right to appeal a special magistrate’s code enforcement decision. Rather than conduct a full plenary appeal, though, the circuit court reviewed the special magistrate’s decision under the more limited three-prong certiorari standard of review. Finding no error rising to the level of this more stringent test, the circuit court upheld the magistrate’s adverse decision.
On second-tier review in the Second District, Brannock Berman & Seider argued that the company was entitled to plenary review, not certiorari review, under the applicable statute. The Second District agreed. The appellate court held that, by affording the company a narrower scope of appellate review than it was statutorily entitled, the circuit court departed from the essential requirements of law. The Second District also found this error meaningful, stating that a full plenary appeal likely would have resulted in the company prevailing on the issue of its entitlement to a public hearing because this was not a routine code enforcement case.