Tag Archives: Competent evidence

Limited or “anything goes?” – Testimony evidence in a Florida quasi-judicial land use hearing

Quick Summary: Quasi-judicial land use hearings are not like legislative hearings; they have a different purpose. Consequently, who is allowed to give testimony and what they can provide is different, more limited. What is important in a land use process and the quasi-judicial land use hearing is to be sure the decision maker has all of the appropriate evidence reasonably available to make the decision. While not everyone has a right to present that evidence, anyone may present evidence, but what they present should be of a sufficient quality.

The appropriate quality of evidence is competent substantial evidence on the issue of whether the application meets the applicable requirements. Competent substantial evidence is also the only type of evidence the decision maker can consider in making the decision. This means that only those that have competent substantial evidence to present are actually participating in the hearing process in a meaningful way, only competent substantial evidence on the issue of whether the application meets the applicable requirements is relevant in the record, and only that evidence should be considered by the decision maker.

If asked about what happens in a Florida quasi-judicial land use hearing (if they have any thoughts about it at all), many people would say that everyone has the constitutional right to speak, and to say whatever they think. And that the decision maker can (and should) consider everything said at the hearing in making the decision. But is that true—is it “anything goes?”

This might have been at least partially true in the past, when most land use hearings were not considered quasi-judicial, but, given the quasi-judicial nature of these hearings today, the “anything goes” concept is much more suspect. Quasi-judicial land use hearings are just that—quasi-judicial (court-like)—and, although not conducted as strictly as a judicial hearing, they are subject to restrictions. In a continuum between “anything goes” testimony and the strict rules of evidence and testimony of the courts, the difficulty comes in trying to identify where is the point of appropriate testimony in quasi-judicial land use hearings.

A good starting point is to understand what makes the hearing a quasi-judicial hearing, the purpose of that hearing, and how those two points relate to the testimony presented. A quasi-judicial hearing is a hearing to apply the adopted regulations, rather than to form policy.1 Accordingly, the purpose of the hearing is not to generally explore how people feel about the kind of use proposed or the applicant, to determine whether the existing regulations go far enough or too far, or even whether the decision maker wants to approve the request or not. The purpose of the hearing is to fairly, even-handedly, and impartially determine whether the identified standards or requirements for the requested action2 have been met.3 How that is done is through the testimony evidence (oral and written) present in the record of the public hearing. This makes this evidence in the record very important.

To examine the appropriate presentation of this testimony evidence, three questions need to be analyzed:

  1. Who may provide evidence for a quasi-judicial land use hearing?
  2. What may appropriately be presented?
  3. What may the decision maker consider in making the decision?

1. WHO MAY PROVIDE EVIDENCE FOR A QUASI-JUDICIAL LAND USE HEARING?

This question is not quite the same as asking who can speak at a public hearing. Anyone capable of communicating can typically speak at a public hearing, but speaking is not the same as presenting evidence for a quasi-judicial hearing.

Parties’ rights to present evidence.

The applicant, as the petitioning party, certainly has the right to present evidence. In fact they have certain evidence obligations to meet in the record for the hearing. At a minimum, the applicant’s witnesses4 should provide evidence for the hearing record meeting those obligations, in writing, as part of the application packet. Those witnesses may also present additional or amplifying evidence at the hearing itself.

The local government staff may also present evidence. If the staff is providing a recommendation to the application decision maker, they must present evidence to support that recommendation.

The decision-maker is a “party” to the matter only in the sense of being an essential aspect of the proceeding and does not have an obligation to present evidence. In an ideal world, the decision-maker(s) would not present evidence in the process. They may ask questions or solicit evidence from others, but they should not be a participating witness to the process.5 The reality is the decision-makers may have a lot of relevant knowledge to offer to the process. If that is the case, it should be presented in a way that allows confirmation by other witnesses. If that is not possible, it is better that the decision-maker at least present that evidence directly into the record as part of the public hearing, where the other participants can respond to it, than to use that undisclosed knowledge as a factor in the decision.

Other participants’ rights and opportunities to present evidence.

The applicant and the local government are generally considered to be the “parties”6 in the hearing process and have certain rights and obligations in the process. But what about everyone else; what rights or opportunities to present evidence does anyone else have?

There are several relevant provisions in the Florida Statutes that can help to answer this question. Subparagraph 286.0115(2)(b), F.S., which is in a section of the statutes addressing when and how ex-parte communications may be allowed in a land use hearing process, describes who may appear in a quasi-judicial land use hearing and their roles. The provision talks about parties, party-intervenors, and other people that may appear and testify (and how each is to be dealt with procedurally), but does not define those groupings. Although it may not have been the intent of the statute, the way the provision is worded seems to suggest that party and party-intervenors are the ones to be given the most weight or credibility (almost like they are the “real” witnesses). The others may testify, but, as they don’t have to be sworn in as witnesses, don’t have to be qualified as an expert witness, are “subject to control by the decisionmaking body,”7 and are not subject to cross examination, it appears their evidence is allowed to be given less (or, possibly, no) weight or credibility8

The statutes provide that the notices9 required for hearings on land use development order ordinances or resolutions must advise that “interested parties” may appear and be heard.10 Unfortunately, the statutes do not define “interested parties.” It may just mean people that are interested or it may require people to have to rise to the level of being a “party” or some type of party-intervenor, having an impacted interest or being impacted to a greater degree than the general public.

The first interpretation (people that are interested) is the one made most frequently in most ordinances. But, given the discussion below on the two other questions, consideration perhaps should be given to the second interpretation. This consideration is backed by a review of section 163.3215(4), F.S.,11 which requires that those that may participate in the statute directed quasi-judicial process must rise to the level of being “aggrieved or adversely affected parties.”12

The Florida Administrative Procedures Act hearing process, a formalized process that applies to state agencies, but not local governments’ land use hearings, also addresses “parties.”13 Others, that are not eligible to be considered parties, may participate in a limited form, if authorized by the agency rules,14 or, as part of the “general public,” they may, when appropriate, be given an opportunity to present oral or written “communications,” which the agency does not have to consider.15

So, it does not appear the Florida Statutes give a “right” to present testimony evidence in a quasi-judicial land use hearing to the general public, or even the surrounding neighbors, that are not specifically impacted to a higher degree. Is there a constitutional right to present evidence?

The constitutional right most at issue would be due process rights. Although courts have found that a participant in a quasi-judicial land use hearing has the right to some measure of due process, the amount of process due depends on the function of the proceeding and the nature of the interests affected by the proceeding.16 To be protected by due process, the interest must be a constitutionally protected liberty or property interest. If there is no such interest being deprived by the quasi-judicial hearing process, the courts have held that there is no denial of due process.17

If a neighbor or other potential participant in the process can show they have a direct constitutionally protected property interest that will be affected by the decision made in the quasi-judicial process, they rise to a level protected by due process rights.18 But this also means that they rise to the level of being the equivalent of a party, or at least party-intervenor, addressed in the Florida Statutes, with the right to be heard. If the potential participant does not have such a protected interest, they have very little or no due process right to present evidence.

Another way a potential participant may have the right to present evidence is if such a right is specifically granted in the jurisdiction’s comprehensive plan or land development regulations. Although not required by the statutes, many jurisdictions do provide for direct notice of quasi-judicial hearings to surrounding property owners. Depending on how the provisions addressing such notice are worded, such a notice may create a “right” to be heard at the hearing.19 Other provisions in the comprehensive plan or land development regulations may directly or implicitly create the right to present evidence in the quasi-judicial hearing.20

All this indicates that, in many cases, the general public, without a direct property interest in the outcome of the hearing, probably does not have a right to present evidence at a land use quasi-judicial hearing. As these hearings are public hearings, however, they may well have the opportunity to present evidence. Theirs may not, perhaps, be accorded the same weight as that presented by the parties or party equivalents, but, if it is of sufficient quality, it might. The purpose of the process and the hearing is to gather all of the appropriate evidence for the decision maker. This means that it is more appropriate to broadly interpret who may present evidence, so as to maximize the potential of gathering evidence. The key then comes down to the question of the quality of the evidence presented.

What constitutes sufficient quality of evidence is addressed in the analysis of the next question.

2. WHAT TESTIMONY MAY APPROPRIATELY BE PRESENTED IN A QUASI-JUDICIAL LAND USE HEARING?

Are there limits on what may be presented in a quasi-judicial land use hearing or is everything allowed? The purpose of the hearing and the obligations of the participants are very important considerations in answering that question.

Evidence to advance the purpose of the hearing.

As stated above, the purpose of the hearing is to fairly, even-handedly, and impartially determine whether the identified standards or requirements for the requested action have been met. Evidence is provided so the decision-maker can make that determination. The evidence must be of a kind that is related to and assists that determination; advances the purpose. And there would seem to be no reason for any evidence/information/testimony that does not advance that hearing purpose; it would be irrelevant and improper.

The Florida Statutes echo this concept. The ordinance/resolution adoption notice requirements of §§125.66(2)(a) and 166.041(3)(a), F.S., provide that those that appear at the hearing are to be heard “with respect to the proposed ordinance” (the development order in this case). Similarly, the provisions of § 120.57(1)(b), F.S., under the Florida Administrative Procedures Act, say that evidence and arguments can be presented on “all issues involved.” By keeping the focus of the testimony on only the issues involved with the proposed development order, the provisions seem to indicate the only relevant discussion is that related to the requirements for the decision on the application.

Evidence to meet the applicable burdens of proof.

In a quasi-judicial hearing, the applicant has the responsibility of demonstrating (“burden of proof”) by competent substantial evidence21 that the applicable standards have been met.22 For non-rezoning applications, the responsibility then shifts to those seeking to deny the application to prove by competent substantial evidence that the standards have not been met and that the request is adverse to the public interest.23

The implication of meeting or not meeting these burdens is that, for quasi-judicial land use reviews, if it is demonstrated that the application does not meet the standards, it must be denied.24 And, except for rezonings, if it is demonstrated that the application does meet the standards, it must be approved.25 This makes the analysis of compliance or non-compliance with the standards the major, if not only, purpose of the review.26 And the relevant evidence used to meet these burdens is only evidence that is material and relevant (competent substantial evidence).

Therefore, to advance the purpose of the hearing and to meet the applicable burdens of proof, the only material or relevant evidence is that which addresses whether or not the application meets the applicable adopted standards or requirements for a decision on the application. As competent substantial evidence is, in large part, material evidence that tends to prove the points that must be proven27 (in this case compliance with the standards) and the applicable burdens of proof require competent substantial evidence, to be meaningful to the process, the quality of the evidence presented must be competent substantial evidence.28

Testimony on anything else is not material or relevant and does not meet the purpose of the hearing. Testimony of any other quality does not meet the participants’ burdens. Therefore, such testimony would not appear to be of the quality of evidence that has any role to play in the quasi-judicial process.

Are other types of evidence appropriate?

But limiting testimony in a hearing to competent substantial evidence is not the typical case; the testimony in many (if not most) quasi-judicial land use hearings is not limited to this degree.29 Are there legitimate reasons to allow other testimony? What would be the point of allowing people to talk about things that are other than competent substantial evidence?

Perspective or context. A possible reason may include the desire to bring in the “total picture” about the application or the area. If this is done to give perspective to show how the application fits (or does not fit) in the area, relative to the applicable regulations, it may well meet the criteria of appropriate evidence (and would likely be competent substantial evidence). If, however, the testimony brings in irrelevant issues—it give a perspective or context beyond what is to be considered in the hearing—it would not be evidence of appropriate quality and should not be considered in the decision.

Credibility. Another possible reason to present what could be considered extraneous information might be to demonstrate the speaker’s good reputation (or their opponent’s bad reputation). If this is done to show their credibility (or to diminish the other side’s credibility)30 to justify why they should be believed over the other side and if it is done with information that relates to the factors appropriately to be considered, it may also be appropriate evidence.31 Again, if it is to show the speaker’s connections or just to disparage the other side, it would not seem to have any role in the hearing.

Past acts. Similarly, testimony might be provided about past violations, wrongs, or acts of a party or another witness. This type of testimony may be allowed in an administrative hearing, when it is fact based and relevant to prove a material fact at issue (i.e. prove compliance or non-compliance with the Code standards), but it is not appropriate when it is only submitted to prove bad character or propensity.32 Those characteristics also tend to make such evidence competent substantial evidence, so it would not be extraneous. For an example of such testimony, see the testimony of Ms. Doe on the applicant’s violations in another jurisdiction in the Competent Substantial Evidence Hypothetical.

Other types of testimony. Other testimony that is frequently seen in hearings can be generally summarized as opportunities to let the speakers vent about their concerns; to demonstrate that they are concerned citizens keeping an eye on the local government; to express disagreement with the code requirements, the process, the staff or the decision-makers, to show how many people are on their side; or to show how important they and those agreeing with them are, in future elections or otherwise. There are (or should be) other venues and opportunities for expressing these concerns. It is difficult to see how any of these are appropriate considerations in a quasi-judicial land use hearing. If they are not appropriate considerations, they should be discouraged or not allowed to be presented at the hearing or in the record. Such testimony does not serve a legitimate (or useful) purpose in a quasi-judicial hearing on a specific application and allowing such improper testimony does not advance a fair and impartial determination.

It appears, therefore, that the proper testimony for a quasi-judicial land use hearing is only that which is fact based, credible evidence, presented for a proper purpose, that tend to prove the application’s compliance or non-compliance with the applicable standards. This is competent substantial evidence.

Form of the evidence.

So, in what forms may competent substantial evidence be presented? Hearsay evidence (basically, testimony about what the witness heard rather than knows from their own experience) may be allowed in administrative hearings to supplement or explain other evidence but, generally, is not enough, by itself, to support a decision.33 This would likely also be the situation in a quasi-judicial land use hearing.

Generally speaking, a witness can only testify about matters of which they have personal knowledge.34 By way of example in a quasi-judicial land use hearing situation, if a witness doesn’t live, work, or spend extensive time in the area, they cannot make factual statements based on their personal knowledge about “typical” conditions in the area, just anecdotal statements from the times they visited or just hearsay from talking to others.

As discussed in the article What is Competent Substantial Evidence in a Quasi-judicial Land Use Hearing, non-expert witnesses may provide opinion testimony if the opinion does not require special knowledge or training and the witness has enough experience with the topic to make the testimony competent substantial evidence. Similarly, an expert may provide an opinion if they are qualified as an expert in the subject of their testimony and if their testimony is sufficiently competent substantial evidence.

3. WHAT MAY THE DECISION MAKER CONSIDER IN MAKING THE DECISION?

As discussed above, it appears that only competent substantial evidence addressing compliance or non-compliance with the applicable standards is appropriately in the record of a quasi-judicial land use hearing. This can also be tested by analyzing this third question, based on the idea that if the decision-maker cannot consider evidence, there is no reason for it to be in the record.

The types of testimony that could be presented in a hearing record can span a large range. At one end of the continuum is one extreme – A decision maker may only consider competent substantial evidence, presented into the record in accordance with the strict rules of evidence and courtroom-like procedure, and must have competent substantial evidence in the record that supports the decision made. It is immediately appropriate to move from this far end of the continuum because it has been consistently held that quasi-judicial hearings such as land use hearings are subject to due process and other constitutional requirements, but do not have to rise to the level of compliance with the strict rules of evidence or courtroom procedures.35 This moves us on the continuum to the position that a decision maker may only consider competent substantial evidence properly in the record before the decision-maker and must have competent substantial evidence in the record that supports the decision made. Let’s leave that for a moment to look at the other end of the continuum.

At the other end of the continuum is the other extreme – A decision maker may consider anything in making the decision. Again, it is easy to move away from this end of the continuum because courts have consistently held that there must be at least some competent substantial evidence in the record to support the decision,36 the decision must be based on the record before the decision-maker,37 and the hearing and decision must be in accordance with due process and other constitutional protections.38 This moves us to the position that a decision maker may consider anything in the record that is there lawfully and is consistent with lawful procedures, as long as there is some competent substantial evidence in the record to support the decision.

So, the difference between the two points is whether the decision maker can only consider competent substantial evidence in the record or whether the decision maker can consider anything lawfully in the record. This difference boils down to the question of whether testimony or materials can be “lawfully in the record” if it is not competent substantial evidence.

What is not “lawful” evidence –

  • Non-fact based generalized objections, even in great numbers.39
  • Evidence that does not relate to the applicable adopted criteria for the requested decision.40

This means the “lawful” evidence must be fact based information that relates to whether the application meets the applicable code criteria. Given that the definition of competent substantial evidence in the quasi-judicial land use context is real, fact based, reliable evidence that tends to prove the points that must be proven (i.e. whether the applicable criteria are met) and a reasonable mind would accept as enough to support the argued for conclusion,41 it is clear that the only evidence that can be “lawfully in the record” for a decision maker to use in making a decision on a quasi-judicial land use matter is competent substantial evidence.

It appears, therefore, that there is no real difference between the two points of the continuum discussed above; the only lawfully submitted evidence in the record is competent substantial evidence. Therefore, in making a decision in a quasi-judicial land use hearing, a decision maker may only consider competent substantial evidence, properly in the record before them, on the issue of whether or not the application complies with the applicable adopted requirements.

Conclusion.

What is important in a land use process and the quasi-judicial land use hearing is to be sure the decision maker has all of the appropriate evidence reasonably available. While not everyone has a right to present that evidence, anyone may present evidence and have it considered by the decision maker, as long as what they present is competent substantial evidence. Competent substantial evidence is the only type of evidence that appropriately should be allowed in the hearing record and the only type the decision maker can consider in making the decision. This means that anyone that does not have competent substantial evidence to present has no role in the quasi-judicial process and anything that is presented in the record that is not competent substantial evidence should not be considered by the decision maker.

This is clearly much easier said (even though it took several pages to say it) than done. The old legislative type hearing approach of allowing anyone to say anything at a hearing is very deeply ingrained in the local hearing processes. See the related article Conducting Florida Quasi-Judicial Hearings That Work for some ideas on how it might be possible.

End Notes:

  1. See the article Purpose of a Quasi-judicial Land Use Hearing for more.Back to text.
  2. See the articles We could play this game much better if we knew the rules and The Rules of the Game – Analyzing Development Standardsfor more on what needs to be demonstrated.Back to text.
  3. See the article Purpose of a Florida Quasi-judicial Land Use Hearing for more on the purpose of quasi-judicial hearings.Back to text.
  4. This usually doesn’t include the applicant’s attorney as an attorney representing their clients as a legal representative (not as a sworn witness), is generally not considered to be able to testify as a witness.Back to text.
  5. This is because it raises due process issues as to whether the decision maker is impartial or acting on undisclosed information.Back to text.
  6. The government is a party in the sense of being the one responsible for the regulations and review of the application, with the accompanying powers, obligations, and requirements, but should not be considered an opponent to the applicant or an advocate for or against the application.Back to text.
  7. As all people testifying at the hearing would be subject to the control of the decision-making body, it is not clear why this limitation is included, except to suggest they might be subject to greater or different control (control, perhaps, not subject to due process rights the others might have).Back to text.
  8. The provision says “[t]he decisionmaking body shall assign weight and credibility to [the testimony from these other types of witnesses] as it deems appropriate.” §286.0115(2)(b), F.S. Given that this is the role of the decision-maker in analyzing evidence from all sources, there doesn’t seem to be any reason to make this statement only in reference to these other witnesses except to say a different weight or credibility level may be assigned to their testimony.Back to text.
  9. It is interesting to note that the statutes (§125.66 and 166.041, F.S.) do not require direct notice to property owners surrounding the application property for rezonings. Even section 163.3215(4), F.S., which lays out what might be considered the statutorily directed way to conduct a quasi-judicial hearing, does not require direct notice to neighbors.Back to text.
  10. §§ 125.66(2)(a) and 166.041(3)(a), F.S.Back to text.
  11. Which, as noted above, lays out what might be considered the statutorily directed way to conduct a quasi-judicial hearing.Back to text.
  12. Defined as “any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order.” §163.3215(2), F.S.Back to text.
  13. “‘Party’ means: (a) Specifically named persons whose substantial interests are being determined in the proceeding. (b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party. (c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceeding as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties. (d) Any county representative, agency, department, or unit funded and authorized by state statute or county ordinance to represent the interests of the consumers of a county, when the proceeding involves the substantial interests of a significant number of residents of the county and the board of county commissioners has, by resolution, authorized the representative, agency, department, or unit to represent the class of interested persons. The authorizing resolution shall apply to a specific proceeding and to appeals and ancillary proceedings thereto, and it shall not be required to state the names of the persons whose interests are to be represented.” §120.52(13), F.S.Back to text.
  14. §120.52(13)(c), F.S.Back to text.
  15. §120.57(1)(b), F.S.Back to text.
  16. Carillon Cmty. Residential v. Seminole County, 45 So.3d 7, 10 (Fla. 5th DCA 2010), reh’g denied (Oct. 6, 2010), review denied, 60 So.3d 386 (Fla. 2011), citing Water Servs. Corp. v. Robinson, 856 So.2d 1035, 1039 (Fla. 5th DCA 2003).Back to text.
  17. Carillon Cmty. Residential v. Seminole County, 45 So.3d 7, 9 (Fla. 5th DCA 2010), reh’g denied (Oct. 6, 2010), review denied, 60 So.3d 386 (Fla. 2011) citing Economic Dev. Corp. of Dade County, Inc. v. Stierheim, 782 F.2d 952, 953-54 (11th Cir.1986).Back to text.
  18. With the opportunity to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts. Carillon Cmty. Residential v. Seminole County, 45 So.3d 7, 10 (Fla. 5th DCA 2010), reh’g denied (Oct. 6, 2010), review denied, 60 So.3d 386 (Fla. 2011), citing Kupke v. Orange County, 838 So.2d 598, 599 (Fla. 5th DCA 2003).Back to text.
  19. As addressed in the article We could play this game much better if we knew the rules, this is one reason it is so important that the notice explain to those noticed what they can do and need to do in their participation in the hearing.Back to text.
  20. Because these documents may create rights that are not granted elsewhere, decisions to create these rights should be made carefully, reviewing all of the implications.Back to text.
  21. The term “burden of proof” in this situation means the burden or “duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises ….” In re Ziy’s Estate, 223 So.2d 42, 43-44 (Fla. 1969). It is not clearly stated in the cases that the applicant’s “quantum of evidence” is competent substantial evidence, but, as that is the level of evidence required for the opponents and for the decision-maker (who cannot approve the application without competent substantial evidence in the record to support the decision), it would appear that the applicant’s evidence must also be competent substantial evidence to meet its burden of proof.Back to text.
  22. Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986).Back to text.
  23. For rezonings, the shifted burden on the denying body is to demonstrate that maintaining the existing zoning classification accomplishes a legitimate public purpose and that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable. Brevard County v. Snyder, 627 So. 2d 469, 476 (Fla. 1993).Back to text.
  24. Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla. 2001).Back to text.
  25. Alachua County v. Eagle’s Nest Farms, Inc., 473 So.2d 257, 259 (Fla. 1st DCA 1985); Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA 1983); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979).Back to text.
  26. See We could play this game much better if we knew the rules for more on this.Back to text.
  27. As stated in the article What is competent substantial evidence in Florida land use hearings, competent substantial evidence is real, fact based, material, reliable evidence that tends to prove the points that must be proven and a reasonable mind would accept it as enough to support the argued for conclusion.Back to text.
  28. That this is the applicable quality of evidence is echoed in the Administrative Procedures Act, which states “[i]rrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.” §120.569(2)(g), F.S. That is, essentially, competent substantial evidence.Back to text.
  29. In large part, this may be because most hearings are still treated like legislative (policy-making) type hearings, where the testimony can be much broader; we changed the name to quasi-judicial, but we didn’t change the process.Back to text.
  30. Since the decision-maker in a quasi-judicial land use hearing must weigh the evidence and the credibility of the evidence, it would seem reasonable that evidence should be allowed that attacks or questions the credibility of a witness. The formal rules of evidence do allow any party to attack the credibility of a witness in certain ways (§ 90.608, F.S. ). It is not clear whether this is authorized in
    administrative or quasi-judicial hearings, but it seems reasonable.Back to text.
  31. As a practical rule of thumb, however, most decision-makers don’t generally like to have hearings deteriorate to the point of having witnesses called liars. So, attacks on witness credibility perhaps need to be done, but are best done with prudence and diplomacy.Back to text.
  32. § 120.57(1)(d), F.S.Back to text.
  33. § 120.57(1)(c), F.S. and 2 Fla. Jur 2d Administrative Law § 292.Back to text.
  34. Under formal rules of evidence, §90.604, F.S.Back to text.
  35. Jennings v. Dade County, 589 So.2d 1337, 1340 (Fla. 3d DCA 1991) (“At the outset of our review of the trial court’s dismissal, we note that the quality of due process required in a quasi-judicial hearing is not the same as that to which a party to full judicial hearing is entitled. [citations omitted] Quasi-judicial proceedings are not controlled by strict rules of evidence and procedure [citations omitted]”).Back to text.
  36. Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986) and Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla. 2001).Back to text.
  37. An administrative agency, in the exercise of a quasi-judicial function, cannot act solely on its own information, Thorn v. Florida Real Estate Commission, 146 So.2d 907 (Fla. 2d DCA 1962); and Manatee County v. Florida Public Employees Relations Commission, 387 So.2d 446, 449 (Fla. 1st DCA 1980), and must act on the known information before it. Jennings v. Dade County, 589 So.2d 1337, 1340 (Fla. 3d DCA 1991) and McRae v. Robbins, 9 So.2d 284, 291 (Fla. 1942).Back to text.
  38. Jennings v. Dade County, 589 So.2d 1337, 1340 (Fla. 3d DCA 1991) (“[C]ertain standards of basic fairness must be adhered to in order to afford due process. [citations omitted] [A] quasi-judicial decision based upon the record is not conclusive if minimal standards of due process are denied. [citations omitted]“).Back to text.
  39. City of Apopka v. Orange County, 299 So.2d 657, 659-60 (Fla. 4th DCA 1974) (“The quasi-judicial function of a board of adjustment must be exercised on the basis of the facts adduced; numerous objections by adjoining landowners may not properly be given even a cumulative effect”); Conetta v. City of Sarasota, 400 So.2d 1051, 1052 (Fla. 2d DCA 1981).Back to text.
  40. This is because a decision maker must base its decision on whether the requested application would meet the applicable criteria of the ordinance. City of Apopka v. Orange County, 299 So.2d 657, 659-60 (Fla. 4th DCA 1974); Conetta v. City of Sarasota, 400 So.2d 1051, 1052 (Fla. 2d DCA 1981); City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423, 425 (Fla. 2d DCA 1974); North Bay Village v. Blackwell, 88 So.2d 524, 526 (Fla.1956). To consider anything other than how the applicable criteria relate to the application is outside of the decision maker’s scope of authority.Back to text.
  41. See the article What is Competent Substantial Evidence in Florida Land Use Hearings.Back to text.
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What is Competent Substantial Evidence in Florida Land Use Hearings?

In Florida, the review conducted for most zoning type actions (rezonings,1 conditional uses,2 variances,3 site plan reviews, etc.4) are quasi-judicial in nature. In a quasi-judicial review by the local government, the applicant has the responsibility of proving (“burden of proof”5) that the application meets the applicable requirements and, if the applicant’s burden of proof is met, the burden of proof shifts to those seeking the denial of the application.6 This means that it is the applicant’s duty to establish (read: convince the reviewer of) the truth that the application complies with all of the applicable requirements. If that is done, it then becomes the opponent’s duty to establish the truth of what is required to deny the application.7 The implication of meeting or not meeting these burdens is that, for all quasi-judicial land use reviews, if it is demonstrated that the application does not meet the standards, it must be denied. And, except for rezonings, if the application does meet the standards, it must be approved. This makes the analysis of compliance or non-compliance with the standards the only point of the review.8

What is key, for this discussion, is that all of this proof and the final decision has to be based on evidence (oral or written statements, documents, or materials) presented in the review process. And that evidence has to rise to the level of being “competent substantial evidence.” The applicant and the opponents are supposed to present competent substantial evidence to meet their burdens of proof. The local reviewer/decision maker is supposed to make a decision based on the competent substantial evidence that was most convincing on the question of whether or not the application met the applicable review requirements. And, if the decision is appealed, there must be evidence in the record supporting that decision that rises to the level of being competent substantial evidence. But what does competent substantial evidence actually mean?

The courts recognize two types of competent substantial evidence – the type that has to be presented before the reviewing agency to meet the applicable burdens of proof (as the “standard of proof”) and the type that the “first-tier” reviewing court will look for (as the standard of review).9 The hearing version of competent substantial evidence involves the questions of the quality (character, convincing power, probative value or weight) of the evidence and the court review version involves questions on quantity (whether there is some evidence as to each essential element) and as to the legality and admissibility of that evidence.10 But despite those differences, the kind of evidence that is considered competent and substantial essentially appears to be the same between the two types.

So what is it? It has been variously described:

  • “Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.”11
  • “‘Substantial’ requires that there be … real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) as to each essential element ….”12
  • Relevant evidence is evidence tending to prove or disprove a material fact. “To be legally relevant, evidence must pass the tests of materiality (bearing on a fact to be proved), competency (being testified to by one in a position to know), and legal relevancy (having a tendency to make the fact more or less probable) and must not be excluded for other countervailing reasons.”13
  • Competent evidence. “In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be ‘competent.’”14
  • “Competency of evidence refers to its admissibility under legal rules of evidence.15
  • “Competent substantial evidence is tantamount to legally sufficient evidence.”16
  • Competent substantial evidence must:
    1. be reliable17 or credible
    2. be factually-based and not unsupported generalized statements18
    3. do more than merely creates a suspicion or give equal support to inconsistent inferences.19
    4. possess something of substantial and relevant consequence.20
    5. “must not consist of vague, uncertain, or irrelevant matter not carrying the quality of proof ….”21
    6. “must amount to more than bare allegations or objections because it must establish a justifiable reason for support of or opposition to an issue.”22
    7. must be more than surmise, conjecture or speculation.23
    8. “must be based on something more than mere probabilities, guesses, whims, or caprices, but rather … [support] a reasonable foundation for the conclusion reached.”24

Putting these together, competent substantial evidence would be evidence that:

  • is legally sound (sufficient and admissible under the rules of evidence, although it doesn’t have to comply with courtroom formality);
  • is real (non-speculative, non-hypothetical) and based on facts (more than conjecture, unsupported generalized statements, surmise, mere probabilities, guesses, whims, or caprices);
  • is reliable (credible, believable);
  • is material (pertinent, relevant);
  • tends to prove the points (facts, elements, standards) that must be proven (not just create a suspicion or could equally support another result);
  • establishes a reasonable, substantial justification (basis of fact) for the point argued; and
  • a reasonable mind would accept it as enough (adequate) to support the argued for conclusion.

Summarizing it further, competent substantial evidence is real, fact based, material, reliable evidence that tends to prove the points that must be proven and a reasonable mind would accept it as enough to support the argued for conclusion.

Conversely, hypothetical, speculative, fear or emotion based generalized statements that do not address the relevant issues and, although perhaps politically persuasive, cannot be reasonably said to support the action advocated, are not competent substantial evidence, and have no role to play in the review of a land use application. Context can also change the quality of the evidence; evidence that would be competent substantial evidence in one context (e.g. flooding risk evidence in a site plan flood plain analysis) would not be competent substantial evidence in another context (e.g. a use appropriateness evaluation for alcoholic beverage sales) if it isn’t relevant to the issue at hand (i.e. flooding risks assessment is not a factor listed in determining whether alcoholic beverage sales are allowed25).

Competent substantial evidence can come from anyone,26 as long as it meets the competent substantial evidence standard.27 But if the testimony is on a technical issue, the witness needs to have the necessary technical expertise to be able to speak on the issue.28 There are cases that suggest that just lay witness opinions are not enough to justify a decision,29 but a closer review seems to indicate that what is intended is that just opinions of anyone, lay-witness or expert, are not enough if they do not rise to the level of competent substantial evidence. It doesn’t matter if the room is full of people offering their views, if their views do not rise to the level of competent substantial evidence, their testimony should have no effect on the decision.30

So, now you know what it is and who can present it. But what does it mean in the real world? See the attached example (Competent Substantial Evidence Hypothetical) which explores this question in one hypothetical situation. See also the article, Conducting Florida Quasi-Judicial Hearings That Work, for more on how competent substantial evidence can realistically be applied in quasi-judicial land use hearings.

Quasi-judicial hearings and the requisite competent substantial evidence has been the requirement in Florida for many years now. It is a complex issue that to date has frequently not been addressed well in local land use hearings. Hopefully this article provides some assistance in understanding better what competent substantial evidence means in a Florida quasi-judicial land use review and can help that to change.

End Notes:

  1. Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469, 474 (Fla. 1993).
  2. City of Melbourne v. Hess Realty Corp., 575 So.2d 774, 775 (Fla. 5th DCA 1991)(confirming that a conditional use permit is a quasi-judicial function).
  3. Walgreen Co. v. Polk County, 524 So.2d 1119, 1120 (Fla. 2d DCA 1988)(confirming that reviews of variances, even variances for alcoholic beverage sales, are quasi-judicial).
  4. Park of Commerce Assoc. v. City of Delray Beach, 636 So.2d 12, 15 (Fla. 1994) (holding “decisions of local governments on building permits, site plans, and other development orders … are quasi-judicial in nature”).
  5. The term “burden of proof” has two distinct meanings. The one at issue here, however, appears to be the burden or “duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises ….” In re Ziy’s Estate, 223 So.2d 42, 43-44 (Fla. 1969).
  6. Irvine v. Duval County Planning Commission, 495 So. 2d 167 (Fla. 1986).
  7. That the application does not comply with the applicable requirements and is adverse to the public interests (Irvine v. Duval County Planning Com’n, 495 So.2d 167, 167 (Fla. 1986)) or, for rezoning applications, that maintaining the existing zoning classification accomplishes a legitimate public purpose and that the refusal to rezone the property is not arbitrary, discriminatory, or unreasonable, Snyder, 627 So. 2d at 476 (Fla. 1993).
  8. See We could play this game much better if we knew the rules for more on this.
  9. If the reviewer’s decision is appealed, the first-tier appeals court (in addition to a couple of other appeal issues) can, without reweighing the evidence, look at whether there is competent substantial evidence in the record to support the decision the reviewer made. At this level, competent substantial evidence becomes the standard of review – whether there is any evidence that rises to the level of competent substantial evidence to support the decision made. It is not a question of whether there was more evidence on one side or the other, whether the right decision was made, or any other weighing factor; just whether there is some competent substantial evidence to support the decision. Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000).
  10. Concurring opinion of Judge Cowart in Dunn v. State, 454
    So.2d 641, 649 n.11 (Fla. 5th DCA 1984) as reported by Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996).
  11. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957) (citations omitted) as cited by Verizon Florida, Inc. v. Jaber, 889 So.2d 712, 721, fn. 1 (Fla. 2004).
  12. Concurring opinion of Judge Cowart in Dunn v. State, 454
    So.2d 641, 649 n.11 (Fla. 5th DCA 1984) as reported by Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996).
  13. §90.401, F.S. and Sims v. Brown, 574 So.2d 131, 134 (Fla. 1991).
  14. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957) (citations omitted) as cited by Verizon Florida, Inc. v. Jaber, 889 So.2d 712, 721, fn. 1 (Fla. 2004).
  15. Concurring opinion of Judge Cowart in Dunn v. State, 454
    So.2d 641, 649 n.11 (Fla. 5th DCA 1984) as reported by Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996).
  16. Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla. 2000).
  17. Florida Rate Conference v. Florida R. R. & Pub. Utilities Comm’n, 108 So.2d 601, 607 (Fla. 1959) (“Although the terms ‘substantial evidence’ or ‘competent substantial evidence’ have been variously defined, past judicial interpretation indicates that an order which bases an essential finding or conclusion solely on unreliable evidence should be held insufficient”).
  18. City of Hialeah Gardens v. Miami-Dade Charter Found., Inc., 857 So.2d 202, 204-05 (Fla. 3d DCA 2003) (“Under this  standard, generalized statements in opposition to a land use proposal, even those from an expert, should be disregarded. See Div. of Admin. v. Samter, 393 So.2d 1142, 1145 (Fla. 3d DCA 1981) (“[n]o weight may be accorded an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning”). However, contrary  to the circuit court’s decision, relevant fact-based statements, whether expert or not, are to be considered. See Blumenthal, 675 So.2d at 607 (“[u]nder the correct legal standard, citizen testimony in a zoning matter is perfectly permissible and constitutes substantial competent evidence, so long as it is fact-based”); see also Metro. Dade County v. Sportacres Dev. Group, 698 So.2d 281, 282 (Fla. 3d DCA 1997)(holding that materials in the record in conjunction with neighbors’ testimony could constitute competent substantial evidence)”).
  19. Florida Rate Conference v. Florida R. R. & Pub. Utilities Comm’n, 108 So.2d 601, 607 (Fla. 1959), (“[T]he substantial evidence rule is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences.”) citing N. L. R. B. v. A. S. Abell Co., 4 Cir., 1938, 97 F.2d 951, 958.
  20. Florida Rate Conference v. Florida R. R. & Pub. Utilities Comm’n, 108 So.2d 601, 607 (Fla. 1959) (“[E]vidence to be substantial must possess something of substantial and relevant consequence and must not consist of vague, uncertain, or irrelevant matter not carrying the quality of proof or having fitness to induce conviction.”), citing Milford Copper Co. of Utah v. Industrial Commission, 1922, 61 Utah 37, 210 P. 993, 994.
  21. Id.
  22. Citivest Const. Corp. v. City of Tampa, 94-8171, 1995 WL 17079555 (Fla. Cir. Ct. 1995) aff’d, 662 So.2d 937 (Fla. 2d DCA 1995).
  23. Florida Rate Conference v. Florida R. R. & Pub. Utilities Comm’n, 108 So.2d 601, 607 (Fla. 1959) (“Surmise, conjecture or speculation have been held not to be substantial evidence.”), citing White v. Valley Land Company, 1958, 64 N.M. 9, 322 P.2d 707, 709.
  24. Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So.2d 1084, 1086-87 (Fla. 1st DCA 2002).
  25. It might be an issue for the site plan review of the building housing the alcoholic beverage sales, but not the question of whether the use is an appropriate use, unless there is something in the adopted code that directly makes the connection.
  26. There are cases (e.g. National Advertising Compnay v. Broward County, 491 So. 2d 1262 (Fla. 4th DCA 1986)) that say that the testimony of an attorney representing a client at the hearing cannot be considered competent substantial evidence, but this may be more of an issue of an attorney holding him or herself out as a representative (not sworn in) rather than a witness or the attorney did not have the expertise or first hand knowledge to make the evidence presented competent substantial evidence. It does raise the question, however, of, not only should an attorney be sworn in, but whether it’s wise for attorneys with no first hand knowledge or expertise to be the sole witness for a side at a quasi-judicial hearing.
  27. Metro. Dade County v. Blumenthal, 675 So.2d 598, 607 (Fla. 3d DCA 1995) (“Under the correct legal standard, citizen testimony in a zoning matter is perfectly permissible and constitutes substantial competent evidence, so long as it is fact-based”); Bd. of County Com’rs of Pinellas County v. City of Clearwater, 440 So.2d 497, 499 (Fla. 2d DCA 1983) (“The local, lay individuals with first-hand knowledge of the vicinity who were heard in opposition at the two public hearings were as qualified as “expert witnesses” to offer views on the ethereal, factual matter of whether the City’s proposed dock would materially impair the natural beauty and recreational advantages of the area”).
  28. Jesus Fellowship, Inc. v. Miami-Dade County, 752 So.2d 708, 710 (Fla. 3d DCA 2000) (“Where technical expertise is required lay opinion testimony is not valid evidence upon which a special exception determination can be based in whole or in part”); Katherine’s Bay, LLC v. Fagan, 52 So.3d 19, 30 (Fla. 1st DCA 2010)(“Lay witnesses may offer their views in land use cases about matters not requiring expert testimony. For example, lay witnesses may testify about the natural beauty of an area because this is not an issue requiring expertise. Lay witnesses’ speculation about potential “traffic problems, light and noise pollution,” and general unfavorable impacts of a proposed land use are not, however, considered competent, substantial evidence. Similarly, lay witnesses’ opinions that a proposed land use will devalue homes in the area are insufficient to support a finding that such devaluation will occur (citations omitted)”).
  29. Katherine’s Bay, LLC v. Fagan, 52 So.3d 19, 30 (Fla. 1st DCA 2010) (“There must be evidence other than the lay witnesses’ opinions to support such claims”).
  30. City of Apopka v. Orange County, 299 So.2d 657, 659 (Fla. 4th DCA 1974).