By: Charles B. Jimerson, Esq and Sophie M. Hayashi
When a party wishes to construct, erect, alter, modify, repair or demolish any building in the state of Florida, obtaining a building permit is the crucial first step. Fla. Stat. § 5531.79(1). However, state agencies have the authority to deny or revoke a building permit if any plans regarding a building are not in conformity with the Florida Building Code. Id. Once a local enforcing agency becomes aware of a non-conforming building plan, “the local enforcing agency shall identify the specific plan or project features that do not comply with the applicable codes, identify the specific code chapters and sections upon which the finding is based, and provide this information to the permit applicant.” Id. Once a party is denied a building permit, the process of challenging a building permit denial begins.
Standard of Review:
When challenging a building permit denial, the agency or officer “with the authority to grant building permits, in granting or refusing requests for permits, is subject to judicial review in a mandamus proceeding against the officer or board.” 7 Fla. Jur. 2d Building, Zoning and Land Controls § 52 (2017). Additionally, “to compel the issuance of a building permit, it must appear that the applicant had a right to build in the manner in which the applicant desires and that all valid provisions of law have been complied with by the applicant.” Id. In other words, compelling issuance of a permit will be impossible if the building plans violate the Florida Building Code.
The Florida First District Court of Appeal held that “zoning decisions were historically considered legislative acts of local government…the board’s action was quasi-judicial.” D.R. Horton, Inc.—Jacksonville v. Peyton, 959 So. 2d 390, 398 (Fla. 1st DCA 2007) (quoting Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469, 474-75 (Fla.1993)). As a quasi-judicial action, a petition of writ of certiorari is an appropriate remedy. Scott A. McLean & Jeffrey W. Glasgow, Success in Litigating Local Permit Denials: Alternative Theories of Obtaining Justice, 86 The Florida Bar Journal 20 (2012).
Challenging the denial of building permit begins at the local level and “the first step in the litigation process is to determine whether the applicant has the right to an administrative appeal under the applicable local ordinance.” Id. For example, according to the Florida Building Commission’s website, “denial is reviewable by a local board of appeal (if one exists) and then by the Florida Building Commission.” The Florida Building Commission.
Additionally, a party may file a writ of mandamus to compel the local agency to properly issue a building permit. The Supreme Court of Florida held that
Applications for building permits cannot be granted unless all valid provisions of the law have been complied with by the applicant. In recent years, many restrictions and prohibitions exist in virtually all urban centers relating to the location and manner of construction, alteration and repair of the various kinds of buildings and structures found therein and so-called zoning regulations applicable to a part or parts or to the entire municipal area, have become general. The issuance of building permits must be in accordance with all such valid regulations.
State ex rel. Lacedonia v. Harvey, 68 So. 2d 817, 818-19 (Fla. 1953).
Pursuant to the Florida Statutes, the Florida Building Commission “shall review decisions of local building officials and local enforcement agencies regarding interpretations of the Florida Building Code or the Florida Accessibility Code for Building Construction after the local board of appeals has considered the decision.” Fla. Stat. § 553.775(3)(c).
Litigation is always a risk, but after exhausting all administrative risks, a party may determine that litigation is the appropriate next step to take in challenging a building permit denial. The Florida Third District Court of Appeal affirmed “the action of the chancellor in directing the issuance of the permit…It is apparent that the landowners had completed all the necessary prerequisites entitling them to a permit.” Dade County v. Jason, 278 So. 2d 311, 312 (Fla. 3d DCA 1973). In this case, the denial of the building permit was done in bad faith. If a landowner fulfills all the legal requirements, the local agency should issue a building permit.
In another case, the Florida Fourth District Court of Appeal held that “developer had no cognizable substantive due process claim because its property interest in the building permits was created by state law, not the Constitution, and both the issuance and revocation of the building permits constituted executive and not legislative acts.” City of Pompano Beach v. Yardarm Restaurant, Inc., 834 So. 2d 861, 870 (Fla. 4th DCA 2002).
It is important for landowners to note that appealing a permit denial at the local administrative level has bearing for statute of limitations purposes. The Florida Third District Court of Appeal held that the statute of limitations began to run upon conclusion of landowner’s administrative appeal. Sutton v. Monroe County, 34 So. 3d 22, 23 (Fla. 3d DCA 2009). In this case, landowner previously appealed her permit denial to the Monroe County Planning Commission, her local administrative remedy. Id.
Alternative Methods for Challenging a Building Permit Denial:
A Florida Bar Journal article provided a list of alternative methods for challenging a building permit denial in Florida:
- A “Void for Vagueness” challenge
- A challenge based on applicant’s vested rights
- A substantive due process claim
- An equal protection claim
- A regulatory takings claim
- The Bert J. Harris, Jr., Private Property Rights Protection Act of 1995
- The Federal Civil Rights Act
- Common Law Writ of Certiorari
McLean & Glasgow, supra at 23.
In conclusion, to challenge a building permit denial, begin at the local administrative level. Make sure that the land in question conforms to all relevant Florida regulations and laws. If administrative and local appeals fail, then litigation is an option, but a risky option. In some cases, courts have held that denial of a permit was improper but in others, courts have upheld such denials as within a local agency’s authority.