01-2347 MIAMI-DADE V. OMNIPOINT

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State: Florida

Court: Florida Third District Court

Docket No: 01-2347 MIAMI-DADE V. OMNIPOINT

Case Date: 12/10/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2003 MIAMI-DADE COUNTY, Petitioner, vs. OMNIPOINT HOLDINGS, INC., Respondent. ** ** ** ** ** LOWER TRIBUNAL CASE NO. 01-029AP CASE NO. 3D01-2347

Opinion filed December 10, 2003. On petition for writ of certiorari to the appellate division of the Circuit Court of Dade County, Amy Steele Donner, Gisela Cardonne, Manuel A. Crespo, Judges. Robert A. Ginsburg, County Attorney, Assistant County Attorney, for petitioner. Jay W. Williams,

Hayes & Martohue and Deborah L. Martohue (St. Petersburg), for respondent.

Before GERSTEN, GODERICH, and FLETCHER, JJ. ON REMAND FLETCHER, Judge. In Miami-Dade County v. Omnipoint Holdings, Inc., 28 Fla. L. Weekly S717 (Fla. Sept. 25, 2003), the Florida Supreme Court quashed this court's decision in Miami-Dade County v. Omnipoint Holdings, Inc., 811 So. 2d 767 (Fla. 3d DCA 2002) and remanded the cause with instructions for this court to review again the circuit

court's certiorari decision, this time limiting our review to the standards established in City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982), Broward County v. G.B.V. Int'l, Ltd., 787 So. 2d 838 (Fla. 2001), and Florida Power & Light Co. v. City of Dania, 761 So. 2d 1089 (Fla. 2000). As a result this court is

limited in its review on remand to the only remaining issue: whether the circuit court applied the correct law. 1092; G.B.V. at 843; and Florida Power at 1092. Vaillant at

(The issue as to

whether the circuit court afforded procedural due process was not raised by the parties, thus need not be addressed.) Our determination here begins with the language of Vaillant, G.B.V., and Florida Power as stated in G.B.V. at 842: "A decision granting or denying a [quasijudicial] 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 part of the record, that the [application] requested by petitioner did not meet such standards and was, in fact, adverse to the public interest.'" [e.s.] The G.B.V. court went on to say: 2

"To deny a [quasi-judicial] application, a local government agency must show by competent substantial evidence that the application does not meet the published criteria." [e.s.] Neither a quasi-judicial body nor a reviewing circuit court is permitted to add to or detract from these criteria (the local regulations) when making its assigned determination.1 Thus in

Miami-Dade County v. Omnipoint Holdings, Inc., 28 Fla. L. Weekly S717 (Fla. Sept. 25, 2003) the Florida Supreme Court held that certiorari review is not the proper vehicle to challenge the constitutionality of a statute or an ordinance. Put another way, quasi-judicial boards do not have the power to ignore, invalidate or declare unenforceable the legislated criteria they utilize in making their quasi-judicial

determinations.

See Baker v. Metropolitan Dade County, 774 So. 2d

14, 19-20 nn. 12-14 (Fla. 3d DCA 2001), rev. denied, 791 So. 2d 1099 (2001). Thus quasi-judicial boards cannot make decisions

based on anything but the local criteria enacted to govern their actions. In the instant case the circuit court appellate division was petitioned by Omnipoint Holdings, Inc. to quash the Miami-Dade County zoning board's denial of Omnipoint's application (to

construct a communications tower) on two grounds. First, Omnipoint

1

See City of Miami v. Save Brickell Ave., Inc., 426 So. 2d 1100 (Fla. 3d DCA 1983), at 1104. 3

argued

that

the

board's

denial

is

violative

of

the

Federal

Telecommunications Act, 47 U.S.C.

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