No, we’re good. Florida’s Second District Court of Appeal has confirmed what land use lawyers have been saying for decades: zoning hearings are still quasi‑judicial. Back in August 2024, we wrote in “Zoning Appeals: Have We Been Doing This Wrong for 30 Years?” about a city of Tampa case in which the concept that a rezoning hearing was quasi-judicial in nature was being called into question. It was an earth-shattering idea, as for more than 30 years land use practitioners had taken this fact as gospel.
The lower court, sua sponte, went through a historical analysis beginning with the framers of the Florida Constitution, cited Abraham Lincoln, referenced King George III, and quoted French political philosopher Charles de Montesquieu. The court distinguished a number of other major zoning cases before and after the Florida Supreme Court’s 1993 decision in Board of County Commissioners v. Snyder and determined that subject matter jurisdiction was an unresolved question. In other words, the trial court worried that when a city council holds a quasi‑judicial zoning hearing, it might be trespassing into “judicial” power reserved to the courts.
The court then offered a historical analysis of the separation of powers dating back to medieval England and dismissed the requested writ, saying: “The powers of our government are separated because the founders of our nation experienced tyranny that flowed from consolidation of power. Because of their wisdom and lived experience, we have a Constitution that says that if someone in government has the powers of one branch of government, then that person may not exercise the powers assigned to another branch, unless the Constitution specifically says so.” It assumed that Article II, Section 3 of the Florida Constitution, the separation of powers clause, applied to local governments, which ultimately upended decades of established precedent that underpins land use and zoning approvals throughout Florida.
The Second District Court of Appeal disagreed. It held in City of Tampa v. Liberty Hospitality Management LLC that Article II, Section 3 of the Florida Constitution does not apply to local governments. Separation of powers in that context deals with how the state is organized, not individual municipalities. Looking instead to Florida’s home rule framework, and citing cases dating back to 1992, the DCA held that the source of the city council’s power to rezone property comes from its home rule powers in Article VIII, Section 2(b) of the Florida Constitution:
Powers. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law. Each municipal legislative body shall be elective.
Put simply, unless general law says otherwise, a city can use its legislative power to adopt rezoning ordinances.
The DCA then analyzed Chapter 166, the Florida Municipal Home Rule Powers Act, and the city’s charter. It concluded that “the charter and the statute both expressly provide that the City Council, as a legislative body, has the power to pass an ordinance on rezoning.” The court then examined Tampa’s rezoning process and made clear that “[i]n arriving at a quasi‑judicial decision on a rezoning request, the City Council is not exercising judicial power.” Because broad home rule authority had been granted to the city, and there was no prohibition in general law against quasi‑judicial zoning actions, the council’s quasi‑judicial rezoning decisions remained within its legislative powers.
As a result, the case is back where it began: a writ of certiorari appeal of a local zoning decision to the circuit court. The existential questioning for land use lawyers has subsided, and quasi‑judicial rezoning lives on.
