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).

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