Why do we hold public hearings on land use matters? One reason is because the Florida Statutes say we have to in certain circumstances. Another reason, and probably the reason behind the state statute requirements, is for the decision-maker to get as much pertinent information as possible from whoever in the community has such information to provide, so as to make an informed decision. But what this information includes and what is to be done with it varies tremendously between the types of hearings.
Florida land use public hearings are of two types—quasi-legislative and quasi-judicial. “Quasi” mean “like;” so “quasi-legislative” means legislative like and “quasi-judicial” means judicial or court like. Most Florida hearings on land use applications are quasi-judicial in nature (hearings for comprehensive plan amendments and large-scale rezonings are two major exceptions). In understanding the implications of the hearing being quasi-judicial, however, the most important comparison is not how a quasi-judicial hearing is like a judicial hearing, but how it is different from a quasi-legislative hearing. It is the differences in the functions of the two types of hearings that are most significant in understanding their effect.
A legislative hearing is a formal process where information, ideas, and proposal on a policy issue or concept, generally of broad application or impact, are presented (where people “get their say”) for consideration by the legislative body. The legislative body may or may not consider what is presented (and may consider other sources or just decide based on what they think) in adopting or rejecting the proposed legislation.1 A quasi-legislative hearing is a hearing that is similar to that legislative hearing, but not the same. The differences may be in the level of formality or in the scope of what is being considered, but what does not change between legislative and quasi-legislative is that the consideration is of a policy or direction; the saying of what is the legislative or quasi-legislative body’s will on what is to be required, the making of policy, rule, or law.
In contrast, a judicial hearing is a formal proceeding to put evidence in the record about the application of the relevant law to the specific matter, from which the decision-maker makes the decision. A quasi-judicial hearing may differ in procedure and formality, but it is like the judicial hearing in that it is a hearing on a specific matter where the decision-maker applies the applicable existing law, through the record evidence, to determine the results. The decision-maker does not make the policy law, but applies it; does not say “this is what we want” (this is the policy or the law), but, instead, “this is how what has been said is wanted (the adopted policy or law) applies in this case.”
If the public hearing is being held for a legislative or quasi-legislative purpose (e.g. to amend the Land Development Regulations (LDRs) or the comprehensive plan), who can provide the information, what they can provide, and how the decision-makers can consider the information is fairly broad. In the past, many land use decisions in Florida were considered this more discretionary legislative action. This was the case when zoning started in Florida, when the traditional zoning approaches were first created. This history has colored our codes and our hearings for many years, even up to the present.
Today, however, in Florida, if a hearing is required as part of the review of a land use application, that hearing is most likely a quasi-judicial hearing (with a few exceptions). If the hearing is a quasi-judicial hearing, rather than legislative, the information flow and consideration is much more limited.2 These limits exist because of the limited function or purpose of a quasi-judicial hearing.3
CORE POINT: The function of a quasi-judicial land use hearing is to be judicial-like in gathering record evidence on and reaching a decision only on the application of the existing adopted regulations or policies to specific development applications, as opposed to the legislative-like creation of new laws or policies.4 Given this function, the purpose (and the only possible purpose) of a quasi-judicial land use hearing is to bring evidence to the decision-maker that allows the decision-maker to apply the existing adopted regulations/policies/requirements to a specific application (i.e. to determine whether the application for the requested action meets the existing requirements).
Effect of Function and Limitations
So what? So we now know that the function and purpose of a quasi-judicial hearing is to apply the adopted laws to a specific application. What difference does that make on the real effect of land use hearings being quasi-judicial?
It changes everything. The classification of a land use hearing as “quasi-judicial” has (or certainly should have) a profound effect on the LDRs and on land use hearings. It completely changes the entire focus of the hearing and, consequently, completely changes what happens (should happen) at those hearings. The focus is shifted from information gathering in a wide universe of possible issues to information gathering on very narrow points of regulation. And the focus is entirely on those regulations. It changes the roles of the participants in the process and their focus.5 It changes what evidence is presented, who presents it, and what must be done with it.6 And, most importantly, it changes what the decision-maker is being asked to do; the question before them is not “what do we want to do,” but “does this application do what it is required to do.”
Before there can be meaningful improvements to the efficiency and effectiveness of quasi-judicial hearings in Florida, this fundamentally different function must be recognized and it must be the foundation of the entire review process.
- D.R. Horton, Inc.–Jacksonville v. Peyton, 959 So.2d 390, 398-99 (Fla. 1st DCA 2007) citing Bd. of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993). Back to text.
- See the article Limited or “anything goes” – Testimony evidence in land use quasi-judicial hearings for more on this issue. Back to text.
- Other limits, which apply generally to government actions and regulations (due process, equal protection, consistency with other laws, laws that are lawful on their face and as applied, etc.), also come into play. Back to text.
- Bd. of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 474 (Fla. 1993); Evergreen Tree Treasurers of Charlotte County, Inc. v. Charlotte County Bd. of County Com’rs, 810 So.2d 526, 532 (Fla. 2d DCA 2002); D.R. Horton, Inc.–Jacksonville v. Peyton, 959 So.2d 390, 398-99 (Fla. 1st DCA 2007). Back to text.
- See the article We could play this game much better if we knew the rules. Back to text.
- See the articles on Limited or “anything goes” – Testimony evidence in land use quasi-judicial hearings and What is Competent Substantial Evidence in Florida Land Use Hearings? for more. Back to text.