Tag Archives: Quasi-judicial hearings

Conducting Florida Quasi-Judicial Land Use Hearings That Work

Have you attended a land use hearing in a Florida city or county that was identified as being a quasi-judicial hearing? Were you impressed? Did it seem to work well, fairly, efficiently? Odds are, no. Most quasi-judicial land use hearings don’t seem to work very well.

Given that we are supposed to have been holding them on land use matters for a couple of decades or more, you would think we would have gotten them right by now. But that doesn’t seem to be case. There are many reasons. The purpose of this article is to try to address several of those reasons and make suggestions on how they can be fixed.1

The problems with quasi-judicial hearings start well before the actual hearing. They start in the misunderstanding of why the hearings are held and what is to be achieved and they continue through the regulations and into the hearing. Accordingly, this article is broken into four parts, which are:

1. Recognizing the proper function and purpose of the hearings;
2. Fixing the problems with the LDRs’ substantive provisions;
3. Changing the LDRs’ procedural provisions; and
4. Altering the way the hearings themself are conducted.

1. Proper Function and Purpose of Quasi-judicial Land Use Hearings

The first step to efficient and effective quasi-judicial land use hearings is to understand their function and purpose and how they are fundamentally different from the legislative type hearings we are used to holding. See the article Purpose of a Florida Quasi-judicial Land Use Hearing for the details, but, bottom line, the function of a quasi-judicial land use hearing is to be judicial-like in only applying the existing adopted regulations or policies to specific development applications, as opposed to the legislative-like creation of new laws or policies.2 Given this function, the only purpose of a quasi-judicial land use hearing is to apply the existing adopted regulations/policies/requirements to a specific application (i.e. to make a determination on whether the application meets the existing regulations/ policies/ requirements).3

The effect of this function/purpose is that it completely changes the 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. It changes the roles of the participants in the process and their focus.4 It changes what evidence is presented, who presents it, and what must be done with it.5 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.” This fundamental shift must be recognized and be the foundation of the entire review process.

2. Fixing the Problems with the Substantive Provisions of the Land Development Regulations

With the focus of the quasi-judicial hearing entirely on the regulations to be applied, the scope, quality, and content of the regulations themselves becomes critical. Accordingly, the fixes start with the substantive provisions of the LDRs.

It goes without saying that the provisions of the LDRs must be lawful.6 There are also several concept changes to the substantive provisions that can improve the quasi-judicial process. Given the quasi-judicial hearing purpose, the main changes can be summarized as a) only require public hearings when needed; b) have specific, quality requirements; and c) clearly identify those requirements for each type of application.

a. Only Require Public Hearings When Needed

Not every application has to go to a hearing. If a hearing is required by the statutes, the local charter, or the comprehensive plan, it has to. But, for all the other applications, consideration should be given as to why it is going to a hearing.

Given the function and purpose of a quasi-judicial land use hearing, what are some improper7 reasons to review an application through a public hearing?

  • The request is controversial and neighbors are upset.
  • This type of use has been controversial in the past, so send it to a public hearing just in case.
  • The governing body, as the elected officials, wants to have a say in whether something is approved or not.

None of these reasons (or others like them) have anything to do with evaluating whether the request meets the applicable LDR and comprehensive plan requirements.

What are proper reasons to review an application through a public hearing?

  • The determination of whether there is compliance with a regulation8 or whether to grant certain waivers to or variances from the regulations9 cannot be definitively determined from information available to the staff.10
  • To make discretionary determinations which are beyond the authority of staff.11

These “proper” reasons are pretty narrow. It is likely a large number of applications that are currently sent to a public hearing would not need to go to a hearing, if analyzed under these reasons.

Similarly, many uses are classified as requiring a hearing review without an adequate understanding of what is the issue to be resolved at that level of review.12 If it is not understood what problem, issue, or concern caused the use to be in that classification, there is no way to determine what needs to be done to correct the problems to make the use approvable13 and no way to have specific standards or criteria to direct the decision. To resolve this, there needs to be clear understanding about why uses are classified as they are in the LDRs and that understanding needs to be clearly articulated and reflected in the LDRs criteria and standards.

b. Have Specific, Quality Requirements

Once it is understood why certain types of applications and uses are being sent to a public hearing, there must be appropriate, specific standards adopted in the LDRs that address those issues and that, if met, will resolve the issues; making it clear what needs to be done to allow the use to be approved.

As discussed in the article The Rules of the Game – Analyzing Development Standards, what is to be achieved by these standards must have a substantial relationship to the promotion of legitimate public purposes addressing the public health, safety, and welfare. The standards must be tailored to actually address (implement) those public purposes, based on an actual analysis of the situation. This means that the regulations must identify what they are trying to achieve and actually allow it to be achieved.14

As also discussed in the Development Standards article, the standards must be definitive, capable of consistent application, and reasonable. As discussed in the article We Could Play This Game Much Better If We Knew The Rules, although some Florida cases have upheld standards that many would consider rather vague, it is a much more appropriate goal to advance good decisions, which fully and consistently implement the local government’s adopted Comprehensive Plan and land development regulations, through clear, reasonable standards, than to make the standards so vague the decision-makers can make whatever decision seems expedient at the moment.

c. Clearly Identify Requirements

Before there can be a determination of whether an application meets the applicable regulations, it must be possible to identify what regulations are applicable; in this case, what are the requirements that must be met for the application to be approved through the quasi-judicial hearing review.

Determining the applicable criteria for rezoning applications is one example of a common criteria identification problem area. It is often difficult to find specific requirements that are to apply to rezoning decisions. The LDRs will either not list any criteria or will use phrases such as “the rezoning must be consistent with the provisions of the LDRs.” How can anyone tell what has to be met, much less measure whether they have been met?

A different problem is often seen for special exception15 applications. Special exceptions are uses that are allowed in certain circumstances. But many LDRs require review of not only those “certain circumstances,” but also review of whether the use meets criteria that have nothing to do with the use being a special exception (e.g. reviewing the criteria that also apply to the use where it is allowed as a permitted use), review of criteria that have nothing to do with the use (e.g. review of the aspects of the structure that would house the use that would otherwise be allowed without extraordinary review), or review of restrictions on property or structures not associated with the request being made (e.g. requiring a binding site plan for portions of the property that have nothing to do with the requested special exception).

The ways to fix these problems are to:

  • Clearly identify the different types of review and what they are to achieve;
  • Gather the applicable regulations for a particular type of review in one place in the LDRs or, at least, use extensive cross references, so it is immediately clear what is required for a particular type of application to be approved;
  • Be specific in the regulations which all applications of each type must meet to be approved;
  • If there are any, state the specific regulations that different applications of the same type must meet to be approved;
  • Only list regulations that go to the reason that the application requires a public hearing review;
  • If there are characteristics of the development, property, structure, or use that trigger the public hearing review (i.e. but for these characteristics, it would not have to be reviewed in this public hearing), only address those characteristics.

3. Problems with the Procedural Provisions of the Land Development Regulations

The solutions for a more efficient hearing process also start with the LDRs. In addition to complying with the requirements that govern all land use processes,16 there are common procedural problems that impact the efficiency and effectiveness of the quasi-judicial land use process. Some of these can be described as: a) not having a clear, proper process; b) not requiring that the proper process be followed; and c) not allowing and requiring the participants in the process to be responsible for their roles.

a. Clear and Proper Process

In many LDRs, the development review process is so onerous and confusing, it requires a professional engineer, planner, or attorney to navigate the way through the process. While good for those practitioners, it is not very efficient.

The quasi-judicial review process should have specific objectives to be achieved.17 Efficiency and effectiveness, as well as consistency and fairness in application, should always be objectives. The procedures to meet those review process objectives should be clearly laid out in a step-by-step process. Although there must be contingencies procedures for situations that do not fit the typical pattern, the guidelines for the application of these alternative procedures should also be clearly spelled out, so they are consistently and fairly applied.

The process must advance the proper purpose. As indicated above, the function of a quasi-judicial hearing is very limited. The procedures for that hearing process must implement and advance that limited function and not allow the proceedings to wander (or be forced) into improper areas.

b. Require the Proper Process Be Followed.

Even if the LDRs lay out clear and proper processes, they don’t mean anything if the words used weaken or supplant the process. One example of this is when the procedures are laid out clearly but words are used, such as “guide” or “steer,” that can be interpreted as allowing discretion in whether or not to follow the requirements. If certain standards are the adopted requirements, they must be applied; unless the provisions specifically lay out how and when certain requirements are not to be applied, there is no discretion in whether they control or not—they control.18

The procedures must also make it clear which are critical components. For example, if the provision of timely helpful information is one of the objectives of the process, this creates critical time-frames (e.g. the procedures must require that applications cannot be amended after certain points, notice of the application must be provided by a certain date, staff reports have to be finalized and available well before the hearing, participants wishing to have party-intervenor status must declare that intention by a certain point, and the potential participants must declare the nature of their concerns by a certain point). Those critical components then must be required to be strictly followed.

Anyone that may wish to speak at the hearing also needs to know what they need to address, in what form, and then be held to it. As was suggested in the article We Could Play This Game Much Better If We Knew The Rules, the list of the applicable standards the application needs to meet, and against which the appropriateness of the application will be measured in the hearing, should be provided in the notice to surrounding neighbors. The standards also should be readily available, on an application petition by petition basis, on a source, such as the local government’s web site, that can be accessed by anyone that might be interested in commenting.19

c. Allow and Require the Participants To Be Responsible For Their Roles

As described in the Rules and Testimony articles, each participant in the quasi-judicial process has a specific role to play. The provisions of the LDRs must clarify what those roles are, what they entail, and what must be done to fulfill those roles. And the requirements must hold the participants to their role.

The regulations must also allow the roles to be fulfilled; must set out clear pathways that don’t allow one participant (or the process itself) to create roadblocks or unreasonable obstacles. This means, in addition to timely notice, full and timely information availability to and from all participants. Consideration should be given to requiring at least an outline of the evidence points to be raised by opponents before the hearing, so there is less risk of the hearing version of “trial by ambush” occurring.

One of the most critical participants in the quasi-judicial role is the decision-making body. For there to be any chance of the quasi-judicial process working properly, the LDRs must clearly delineate what the decision-makers are to consider and what they are not. And the LDRs must hold them to those requirements.

4. Problems with the Way Quasi-judicial Hearings Are Conducted

Now we come to the hearing itself. Some of the problems at the hearing can be summarized as: a) procedures are not followed, b) too much irrelevant information is allowed in the hearing record, c) the decision-makers do not have a reasonable opportunity to consider the evidence provided, and d) there is no way to know why the decision-makers made the decision or the evidence on which it was based.

a. The procedures are not followed;

All the procedures in the world mean nothing, if they are not followed. If the participants in the hearing do not have confidence that the written procedures are going to be followed, they cannot prepare efficiently or effectively; the only recourse is to address everything and the kitchen sink, in the hope that something works. To work fairly, effectively, and efficiently, the adopted standards and procedures must be consistently applied at the hearings.20

b. Too much irrelevant information is allowed in the hearing record;

As explained in the Testimony article, the only appropriate testimony in a quasi-judicial land use hearing is that which provides competent substantial evidence on whether or not the application meets the relevant code requirements. Anything else isn’t helpful to the process and, in fact, can be quite harmful, with its distraction from and confusion of the relevant issues and the actual basis of the decision.

It is difficult, however, for participants to drop the decades long perpetuated expectation of legislative hearing type testimony; people are used to “having their say” at land use hearings and are reluctant to change. Rather than continue to allow it at quasi-judicial land use hearings, however, there needs to be meaningful alternatives.

One major alternative is to take as many steps as reasonably possible to encourage community testimony on comprehensive plan formation and amendment and in the formation of the LDRs; in other words, boost community input on the legislative policy making steps. This is often difficult to do. People don’t focus on an issue until it impacts (or is believed to impact) them directly.

So, another alternative would be to have a public discussion point at each public hearing (or at least those held before the governing body), outside of the actual quasi-judicial hearing, where people are allowed to talk about what they feel are short-comings of or changes needed to the comprehensive plan, the LDR standards, or other such policy issues. The points they raise would not be considered in the actual hearing on the specific applications, but this would provide an entry point to address future changes that may need to be made, raised by those that are most immediately concerned.

Another way of reducing irrelevant issues being considered in the quasi-judicial hearing is to take the elected body out of the quasi-judicial review process. Worries about how the voting constitutes will view a decision on a single application or whether a vote is a wise political move are not legitimate consideration in a quasi-judicial hearing. Taking the politicians out of the process may go a long way toward taking the politics out of the review. This may be strongly resisted in some jurisdictions, but it should be given due consideration in an effort to keep the proper focus in quasi-judicial hearings.

c. The decision-makers do not have a reasonable opportunity to consider the evidence provided.

If all the evidence is presented at the hearing, how is a decision-maker that has to make a decision immediately, at the hearing, supposed to wade through and analyze what is and what isn’t competent substantial evidence? In most quasi-judicial hearings, as they are conducted today, it is not realistic to think it can be done. A spur of the moment decision is very likely to be based on emotions rather than facts. So what is the solution?

One option is to change when and how the evidence is presented into the record. If the evidence is largely in the record before the hearing, the hearing itself would be just to cross-examine the providers of the testimony, to seek clarifications, and resolve any questions. This would require significant procedural changes to the LDRs,21 but would allow for well-informed hearings with less surprises.

A second option would be for there to be two meetings on each application; the first would be the public hearing, where all the evidence is gathered, and the second, some reasonable time later, would be a “Government in the Sunshine” law compliant meeting, where no testimony would be given, but the decision-making body can discuss the evidence among the members.22 This option could have one body hold both hearing/meetings or would allow one body or hearing officer to hold the public hearing and a different body make the final decision at the meeting.

A third option would be to have a hearing officer conduct the public hearing and make the decision some period after the conclusion of the hearing. This would allow time for consideration of the submitted evidence before the formation of the final decision. This option would be available for all types of quasi-judicial decision except, possibly, for rezonings,23 and, maybe even for them.24

d. There is no way to know why the decision-makers made the decision or the evidence on which it was based.

Fulfilling their decision-maker role of determining if the application meets the existing regulations probably means the decision-makers must explain their reasoning. Regardless of when the decision is made, the only way to have any meaningful understanding of what was the basis of the decision is for the decision-maker to say. This doesn’t need to be in excruciating detail, but there does need to be statements made as part of the motion25 that review the applicable requirements and state how and why they are or are not met.26 This can involve going through each requirement or be as simple as stating: “the applicant has met the burden of proving compliance with the applicable requirements, as evidenced by X, Y, and Z of the application material, and the application opponents have not sufficiently demonstrated that this is not the case;” or “the application does not meet requirement X because the evidence shows this situation versus the required situation.” This, of course, doesn’t mean the decision-maker didn’t really decide based on some improper information, but if there is competent substantial evidence to support what they said was the reason for the decision, that is all that is required, and is probably as much as it is reasonably possible to consistently achieve.

It has been said that requiring the decision-maker to say why they reached the decision takes away the discretionary power of the decision maker and ties them to statements that may not reflect the full reasoning behind each decision-maker’s decision. In response to the first part, it should be remembered that the only discretion the decision-makers have in a quasi-judicial hearing is determining whether or not, based on the evidence in the record, the application met the applicable requirements. Therefore, their discretion is already significantly restricted and stating how that allowed discretion was applied does not create a further limit. As to the second point, it probably isn’t possible to have a statement that captures the entire reasoning of the decision-makers, but it should be possible to capture at least the essence of the reason, and that essence must be on proper grounds. Regardless of the full reasoning behind the decision, if the decision-maker cannot provide at least one legitimate justification for the decision, based on the restrictions of the proper function of a quasi-judicial hearing, the decision should not prevail. Leaving the participants and any reviewing court to dig through the record to try to find one piece of competent substantial evidence to support the decision may make it easier for local governments to win lawsuits, but it does not provide any information that would allow an understanding of how the regulations are to be applied in the future. Further, it eliminates the likelihood of consistent application of the requirements and is fundamentally unfair to the other participants–applicant and opposition alike.

There is debate currently about whether local governments must provide written findings of fact. State law27 requires that denials be in writing, with a citation to the requirement or authority supporting the denial. This seems to indicate that, at least for denials, that there should be a written determination indicating the grounds for the denial. That doesn’t mean, however, that it needs to be formal findings of fact and conclusions of law, but it does indicate the intent of the legislature that, at least for denials, there needs to be a written explanation of the reason for the denial. The statute supports the point that the only way there can be a meaningful explanation of the action taken is if the decision-maker provides an explanation in the record. So, although it may not be necessary to have formal findings, there does need to be written reasons for the decision, relaying and reflecting what was said by the decision-maker(s) in the hearing.28

Conclusion

Changing the efficiency and effectiveness of Florida quasi-judicial land use hearings is a difficult complicated task. Even though they may have been called quasi-judicial hearings, Florida has seen decades of what were essentially legislative type hearings. This is the type of hearing most jurisdictions are used to and it is difficult to break away from that. But it is suggested that, in addition to being more legally sound, there are significant benefits that can come from improving the efficiency and effectiveness of the quasi-judicial land use process, such as increasing predictability, decreasing processing times, and helping to more fully and effectively implement the local comprehensive plan and planning policies.

Ways to do this can be summarized as follows:

  • Recognize in the regulations and the hearings that the
    proper function and purpose of the hearing is only to determine whether the application meets the adopted requirements.
  • Fix the problems with the LDRs’ substantive provisions that
    inhibit or prevent the exercise of the proper quasi-judicial function, through methods such as:

    1. Only requiring public hearings when needed;
    2. Having specific, quality requirements; and
    3. Clearly identifying the applicable requirements.
  • Change the LDRs’ procedural provisions that negatively
    impact efficient, effective, and proper hearings, through methods such as:

    1. Making the applicable process clear and for proper reasons;
    2. Require that the proper process be followed, without
      conflicting or undermining provisions; and
    3. Allow and require the participants to be responsible for their roles.
  • Alter the way the hearing itself is conducted, through steps
    such as:

    1. Consistently following the adopted procedures;
    2. Limiting the information presented to competent substantial evidence, as much as possible, by ensuring everyone knows the “rules” and by providing other forums outside the hearing to allow them to “have their say;”
    3. Provide the decision-makers reasonable opportunities to
      consider the evidence in the record before making a decision; and
    4. Require the decision-makers to make at least basic
      statements of their decision reasoning and what competent substantial evidence they are using to support their decision.

End Notes

1. There are many reasons and many aspects of the reasons for the problems with quasi-judicial hearings. The same is true for the solutions. What is proposed here is an attempt to understand and address fundamental core issues and to offer starting points for solutions. Back to text.
2. 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.
3. For rezonings, one of those requirements is determining whether it is appropriate to change the status quo. Back to text.
4. See the article We could play this game much better if we knew the rules. Back to text.
5. 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.
6. See the article Limitations on Florida Police Powers for more on what is needed to make them lawful. Back to text.
7. The reasons are “improper” if the issues they raise can only be resolved by reviews outside of the adopted lawful regulations. Back to text.
8. If compliance with a regulation can be definitively determined by staff, with no additional information being needed (e.g. whether a setback is met), there is no reason to send the application to a public hearing. If the regulation is met, the application must be approved; if not, it must be denied. If, however, the compliance question requires additional information not readily available to the staff, but may be available through a public hearing, then it would be appropriate to send the application to a public hearing to gather that information. Back to text.
9. Again, if the staff can definitively determine if the waiver/variance meets the requirements for the granting of the waiver or variance without additional information, it is appropriately reviewed at an administrative level, rather than at a public hearing level. If, however, determining compliance with the waiver/variance criteria requires additional information that may be available through a public hearing, it would be appropriate to send the application to a public hearing to gather that information. Back to text.
10. There may be relevant (competent substantial) information that surrounding property owners or the general public can provide that is not otherwise available to staff, but it is questionable whether a public hearing is the best way to gather that information. If there is a concern that there may be relevant information unavailable to staff, it may be more appropriate to devise a way to solicit that information in the staff review process, rather than attempt to acquire the information through the rather hit-or-miss information gathering environment of a public hearing. Back to text.
11. There are basically two types of non-legislative decisions local government may, lawfully, make—ministerial (one based on a nondiscretionary duty to act as required by the law (i.e. the official has no choice but to make a decision and the law lays out what must be done)) and discretionary (a non-ministerial decision that the official has the authority to make, as specified in the authorizing legislation, if there are adequate standards in the legislation to restrict the discretion exercised). See the future article on Ministerial versus Discretionary Decisions for more. A ministerial decision would not be beyond staff’s discretion because, by its definition, there is no discretion on whether and how to act. A discretionary decision can be made by staff, if they are so authorized by the applicable legislation. Because all discretionary administrative decisions, by staff or by a decision-making body, must be limited by definitive standards, it can be difficult to quantify what would make it more appropriate to have a non-staff body make the discretionary decision rather than staff. Back to text.
12. Quasi-judicial hearings cannot create new rules or make policy decisions (a decision that goes beyond the application of the criteria). Therefore, the reasons a development request is classified as a special exception, rather than an administrative staff level permitted use review cannot be so the public can decide if they want the use in their neighborhood, or to allow the decision-making body to make a case-by-case analysis of the appropriateness of a use in the jurisdiction, or to allow the staff to bump a politically unpopular or controversial request to the elected officials level. The policy decision of whether a use can ever be made appropriate in the jurisdiction or a particular area, and the standards that would make it appropriate, must be made at the time the regulations are created and adopted. That cannot be done on a case-by-case basis. A controversial applicant or application must be reviewed in the same way as the same use in a similar area that is not expected to create controversy. See the future article Classification of Uses for more. Back to text.
13. The fact that the use is listed as a possible use (if approved in the quasi-judicial hearing) says that there must be some way to make the use appropriate. Otherwise it would be prohibited. Back to text.
14. For example, an “X” use shall be reviewed as a special exception in the “Y” zoning district to determine whether the “Z” type impacts have been mitigated to the same or equivalent level as the permitted uses allowed in the zoning district. The goal, in this example, in reviewing this use as a special exception is to have specific impacts mitigated; the measurement (how the goal is implemented) is whether the mitigation makes the impacts comparable to those from permitted uses in the district. Back to text.
15. The term “special exception” is used here to include conditional uses, special uses, special permits, or any other such classification that requires a public hearing to determine if the use is to be allowed in a specific location. Back to text.
16. As with all government actions, the quasi-judicial land use process and its decisions must be in accordance with applicable constitutional protections. The most relevant ones in this case are protections of due process and equal protections rights of an opportunity to be heard, fairness, equal application of requirements, and unbiased, impartial decision-makers. The process and decision must also be consistent with all other applicable laws (federal, state, and local, including any local charter and the comprehensive plan). Back to text.
17. Examples of objectives might be to require the submittal of all necessary information from the applicant before the review starts; to keep the review focused only on the issues to be addressed in the review; to provide meaningful information at a meaningful time to the applicant and all potentially interested persons; etc. Back to text.
18. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 375, 377 (Fla. 3d DCA 2003) (finding that “quasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”). Back to text.
19. Also in this notice and information source should be an explanation of what is competent substantial evidence, perhaps with examples. Back to text.
20. One of the key parts of following the procedure is to keep the list of adopted standards in the forefront of the discussion, as a part of the notices to neighbors, in the staff report, and as a list before the decision-makers. Back to text.
21. Such as requiring that potentially impacted or interested persons be notified of the application when it is filed (or found complete for processing), rather than just notice of the hearing; requiring those wishing to be considered “parties” to seek that status early; requiring everyone to put their evidence in writing; a process for times when significant new information is presented at the hearing; and safeguards to prevent abuse of the system. Back to text.
22. It would require that the evidence be collected in a meaningful form for the body’s consideration well before the decision meeting. Back to text.
23. The statutory requirements that rezonings be adopted by ordinance or resolution (§166.041 and 125.66, F.S.) suggest that the governing body must make the final decision on the matter. Back to text.
24. It may be possible, however, to delegate the decision to a hearing officer and have the governing body ratify the decision in an ordinance or resolution. This would work well with an appeal opportunity to the governing body of the hearing officer’s decision; if the rezoning decision is appealed, an appeal hearing would be heard and if it is not appealed, the ordinance would be approved without review. Back to text.
25. Each decision-maker can probably even make a different statement about why they are voting a certain way (e.g. “I am voting for the motion, not for the reasons that Commissioner A stated, but because ….”). Back to text.
26. Since the application has to meet every applicable requirement to be approved and only needs to not meet one to be denied, it is much easier to state the reason for a denial. Back to text.
27. Sections 166.033 (for municipalities) and 125.022 (for counties), F.S.Back to text.
28. This doesn’t include a written creation by the staff or local government attorney that manufactures after the fact justifications for the decision not reflective of what the decision-maker actually said. Back to text.

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Purpose of a Florida Quasi-judicial Land Use Hearing

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.

End Notes:

  1. 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.
  2. See the article Limited or “anything goes” – Testimony evidence in land use quasi-judicial hearings for more on this issue. Back to text.
  3. 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.
  4. 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.
  5. See the article We could play this game much better if we knew the rules. Back to text.
  6. 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.

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.

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).

We Could Play This Game Much Better If We Knew The Rules

– One Reason Why Land Use Quasi-Judicial Hearings Do Not Currently Work

 Reprinted with permission, The Florida Bar, The Environmental and Land Use Law Section Reporter, Vol. XXXII, No. 4, June 2011.

Remember when you and your friends used to make up games on the playground? You could get this great idea and just start playing. It was lots of fun for about five minutes. Then the arguments would start – you can’t do that, that’s not the way you play, that’s not fair. Games really don’t work very well when they don’t have rules. In many ways, it is the same for local government quasi-judicial land use hearings. We declare that we are holding a quasi-judicial hearing, swear in witnesses, and talk about the need for competent substantial evidence, but, in most cases, the hearings do not work very effectively for anyone. It is the intent of this article to suggest this is because it is unclear by what rules we are to be “playing.”

Since Board of County Commissioners of Brevard County v. Snyder[1] declared that, in Florida, small scale rezoning actions join conditional use permits,[2] variances,[3] and other development orders[4] as quasi-judicial reviews, there have been issues about how to conduct quasi-judicial hearings (due process rights, cross-examining witnesses, findings of fact, etc.). But, as important as those issues are, it is suggested that the fundamental reason why quasi-judicial hearings are not much better than legislative type reviews in producing objective, fact supported decisions that implement the adopted regulations is because there are almost never sufficient rules (standards, requirements, criteria) against which the “evidence” that is presented can be weighed.

As laid out in Irvine v. Duval County Planning Commission,[5] in a quasi-judicial hearing, the applicant has the burden of demonstrating that the applicable standards have been met. Then the responsibility shifts to those seeking to deny the application to prove that the standards have not been met and that the request is adverse to the public interest.[6] Further, there must be competent substantial evidence in the record in front of the decision-maker to support the decision made.[7]  Putting these together, there must be competent substantial evidence put in the record by the applicant that the applicable standards have been met and competent substantial evidence put in the record by those seeking the denial of the application that the applicable standards have not been met. The decision on the application must be made based on this evidence[8] and only this evidence.[9] But, in this dance of burden-shifting, objective, evidence-based decisions will consistently be produced only if the participants understand the applicable standards that have to be met.

When was the last time you saw all the standards that must be demonstrated clearly listed in a land development code? At most, it is usually a statement that the request has to be consistent with the Comprehensive Plan, be compatible, advance public purposes, or some similar, usually undefined phrases, which are often so vague as to not appear to be standards or criteria at all. The Florida courts have long held that, not only must there be specific criteria against which an application is to be reviewed,[10] the criteria must also be clear enough to be consistently applied.[11]

There are, however, also several cases that have upheld what most would consider to be very general, if not vague, standards. There are good—if not legally sound, certainly politically sound—reasons why many jurisdictions might want the standards in their land development regulations kept vague. It does provide maximum flexibility in the decision-making, and certainly helps the local government attorneys defending their clients’ decisions in court. But is that the correct goal for a quasi-judicial review? It may be politically expedient and easier to have greater flexibility and may seem advantageous to create an environment with an increased likelihood of winning in court, but would it not be a more appropriate goal to have decisions that fully and consistently implement the local government’s adopted Comprehensive Plan and land development regulations?

Operating under the assumption that the goal is to have decisions that implement the adopted regulations, there should be clear standards that govern each application. These are the rules of the game; they are what must be followed. The creation of these standards must be done in the actual drafting and adoption process of the land development regulations, rather than during the review of individual applications on an ad-hoc, case-by-case basis. This is because not only do case-by-case decisions on the applicable rules make for arbitrary decisions,[12] but also because such decisions are policy decisions—a legislative function, which cannot legally be made in a quasi-judicial review, where the role is to implement the already established requirements.[13]

Having clear standards is, however, only the first part of the equation. They must also be applied; the rules have to be followed. It is very rare to see an application or an applicant’s presentation at the hearing in which the applicant specifically addresses the criteria that do exist in the land development code. This is likely true at the hearings because experienced applicants’ representatives have learned that the decision-makers do not necessarily want to hear an analysis of whether the application meets all of the criteria or not; many boards feel that is the planning staff’s job and the application would not be before them with a recommendation of approval from staff if it did not meet the criteria.[14] But that is the problem; for most applications, whether the application meets the criteria is the only issue for consideration in the review.[15] If the application does not meet the standards, it must be denied.[16] Except rezonings, if the application does meet the standards, it must be approved.[17]  It is only if this standards-proving threshold has been passed, and only for  rezonings, that there is any additional consideration.[18] So, to get  beyond that critical threshold, the standards are the only rules of the game; everything else is irrelevant.[19]

Because this threshold of standards compliance proof is so critical, an applicant must be required to specifically address them and to demonstrate by competent substantial evidence that the application meets them. Staff should not find an application complete for processing unless there is a specific statement of how the applicable standards are met by the application. This statement of compliance should be the applicant’s major statement of the application; this is what is to be considered. At the hearing, this statement and the analysis of compliance with the standards should be the entire focus of the hearing.

Having standards, which are actually applied, also helps any opponents of an application to have a legitimate role in “playing the game.” Having clear standards that have to be achieved and a specific statement from the applicant on how they are met not only answers many questions and may satisfy many neighbors’ concerns, but it also clearly defines the universe of questions and issues that are relevant at the hearing. Without any standards, or any confidence that the discussion will be limited to the standards, opponents have no choice but to shotgun their approach; they must object to everything that may be a concern. This leads to hearings with busloads of opponents, wearing same color shirts, waving signs and handfuls of materials they downloaded from the internet, but it usually does not produce much relevant competent substantial evidence that the decision-makers can use. If the neighbors are told in their notices what the applicable requirements are and that their discussion must be limited to those issues, they know what they need to do—what their rules are—as well. Whether they want to support or oppose the application, they have what they need to contribute to the process in a meaningful way.

Perhaps most importantly, having clear standards that are required to be addressed, and are the only things that are addressed, makes a tremendous difference for the decision-maker(s). The final decision-makers are often elected officials. All decision-makers, but especially elected officials, should appreciate being able to fall back on clear standards as the justification for their decision; it is much easier to say “I’m sorry, I wanted to vote your way, but we are bound by the adopted standards in our decision.” Without clear applied standards, the decision-makers are back to deciding based on whether they personally like the proposal or whether it is politically expedient for them to make a certain decision.

Having clear standards that are followed also makes for more consistent court decisions. Having clear applied standards allows the courts to reasonably assess the local government’s decision, without improperly re-weighing the evidence, to determine whether there was sufficient competent substantial evidence in the record to support the decision made.[20] If there are clear standards and the “evidence” in the record does not relate to those clear standards, it is not competent substantial evidence because it is not relevant.[21]

Having clear rules for everyone also helps keep the hearings more manageable. If anyone starts to go too far afield in their comments, they can easily be brought back on track by limiting the discussion to the standards. If they want to object to the standards, they can be directed to a separate process to seek the amendment of the standards.

Having clear applied standards may also help resolve or, at least lessen, many of the other issues of quasi-judicial hearings. Presentations of evidence would be more focused and shorter when they do not have to address everything in the universe, which protects due process rights by freeing time to allow everyone to have a meaningful say. Whether or not the decision-maker provides written findings of fact, if the standards are properly presented and considered, the record should contain the applicable standards and the competent substantial evidence to support both sides’ arguments, as needed to support the decision. The issue of cross-examination would be unresolved, but at least the topics of examination and cross-examination would be more focused.

For almost twenty years, Florida cities and counties have been holding quasi-judicial hearings and trying to make them work. Most have tried to play a quasi-judicial game using rules suited to legislative procedures and expectations and, like the games we made up on the playground, it just does not work. It is suggested that before quasi-judicial hearings can work properly and our comprehensive plans and land development regulations can be properly implemented, we must reset the rules—adopt clear standards to guide
the reviews and use them.


End Notes

[1] 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] 495 So. 2d 167 (Fla. 1986).
[6] 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. Snyder, 627 So. 2d at 476 (Fla. 1993).
[7] 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).
[8] De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
[9] See City of Naples v. Central Plaza of Naples, Inc., 303 So. 2d 423, 425 (Fla. 2d DCA 1974) (stating “as pertinent as [concerns presented at the hearing] may seem to be, the City Council did not have a right to consider them in making its determination. [citation omitted] The only criteria upon which the Council could legally base its decision were those set forth in the ordinance”).
[10] N. Bay Village  v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956); Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953); and Phillips Petroleum Co. v. Anderson, 74 So.2d 544, 547 (Fla. 1954).
[11] Drexel, 64 So. 2d at 319; Phillips Petroleum, 74 So.2d at 547.
[12] Drexel, 64 So. 2d at 319; City of Homestead v. Schild, 227 So. 2d 540, 543 (Fla. 3d DCA 1969).

[13] Snyder, 627 So. 2d at 474 (finding that “[g]enerally speaking, legislative action results in the formulation of a general rule of policy, whereas [quasi-]judicial action results in the application of a general rule of policy”).
[14] Whether an application that can be definitively shown to meet all of the applicable criteria should even have to go through a quasi-judicial hearing, rather than just an administrative staff review, is a whole different issue that should also be explored.
[15] Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 375, 377 (Fla. 3d DCA 2003) (finding that “quasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”).
[16] G.B.V., 787 So. 2d at 842.
[17] 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).
[18] Before a rezoning application can be denied, there must also be evidence in the record that keeping the existing zoning category accomplishes a legitimate public purpose and is also consistent with the comprehensive plan. Snyder, 627 So. 2d at 476.
[19] See Windward Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 638 (Fla. 1st DCA 1999) (finding that “a local government may not deny a development order based on criteria which are not specifically enumerated in its land use regulations”).
[20] This is the relevant role of the court in a certiorari review. City of
Deerfield Beach v. Vaillant,
419 So. 2d 624, 627 (Fla.1982); G.B.V., 787 So.2d at 843.

[21] De Groot, 95 So. 2d at 916 (finding that “[s]ubstantial evidence [is] such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. [citations omitted] In employing the adjective ‘competent’ to modify the word ‘substantial,’ we are … of the view … 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’”).