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.

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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’”).