Summary of 2012 Florida Legislative Changes Related to Land Development Regulations

The Florida Legislature made several changes to the Florida Statutes in 2012 that are relevant to land development regulations. The following is a summary of several of those changes, grouped by the bills in which the changes were made.

House Bill 503 (Chapter 2012-205 from HB 503, Laws of Florida)

Language was added to §125.022 (which addresses counties) and §166.033 (which addresses municipalities)¹ that, for development permits² filed after July 1, 2012, prohibits counties and municipalities from requiring the applicant to obtain any state or federal permit³ unless the state or federal permit has already been denied.

This bill also includes, in language almost identical to prior years, a process to extend most local government development orders and building permits, as well as DEP and water management permits. This legislation addresses those permits that are to expire between January 1, 2012 and January 1, 2014 and extends them for 2 additional years. These extensions can be in addition to previous extensions, but the extended time cannot exceed a total of four years. To receive the extension, the permit holder must notify the permitting authority in writing by December 31, 2012.⁴ The local governments and state agencies cannot require the payment of a fee for the use of the extensions.⁵

This bill was signed by the governor May 4, 2012 and will be effective July 1, 2012.

House Bill 979 (Chapter 2012-75, Laws of Florida)

A provision was added to the DRI pre-application procedures⁶ that says that agencies participating in pre-application reviews may only make comments that are consistent with the applicable statutes rules or adopted local government ordinances. A new provision was added to the list of changes that do not constitute a substantial deviation to an existing DRI; “changes that do not increase the number of external peak hour trips and do not reduce open space and conserved areas within the project except as otherwise permitted by sub-subparagraph j.”⁷ A new type of development was added to the list of project types that are exempt from the DRI process; development, outside of areas of critical state concern, the Wekiva Study Area, and the Everglades Protection Area, that is not in a section 380.06(29), F.S., exempt dense urban land area, but is approved as a comprehensive plan amendment adopted through the state coordinated plan amendment review process (§163.3184(4), F.S.) and is subject to a section 288.106(5), F.S., tax refund agreement (with some additional restrictions on the agreement), are now exempt.⁸

Section 4 of the bill addresses changes that, based on the citation in the companion Senate bill, appear to intend to add a section 163.3165, addressing agricultural enclaves. Unfortunately, the adopted bill does not include any citation, so the language is adopted without identifying where it goes. The provisions allow the owner of a qualified agricultural enclave⁹ to apply for a plan amendment, which will be presumed to not constitute urban sprawl if the proposed land uses and intensities are consistent with the existing or allowable uses that surround the parcel. If the parcel is surrounded by only one land use designation, that land use designation must be presumed by the county to be appropriate for the parcel. To overcome these presumptions the county must find, by clear and convincing evidence, that approving the designation would be detrimental to the health, safety, and welfare of its residents. To qualify under this section as an agricultural enclave, the property owner must file a written application to the county by January 1, 2013.

This bill was signed by the governor on April 6, 2012. It is effective July 1, 2012.

House Bill 1197 (Chapter 2012-83, Laws of Florida)

This bill is only tangentially related to land development regulations, except for two provisions—the bill preempts local government regulation of honeybee colonies,¹⁰ and exempts “farm signs” from the Florida Building Code and any county or municipal code (except floodplain management).¹¹ The honey bee provision¹² will impact increasingly common attempts to regulate when and where bees can be kept in more urban environments; it is now no longer a local issue. The farm sign provisions¹³ define “farm sign” and requires the signs to meet certain of the same requirements as outdoor advertising signs under §479.11, F.S. This bill was signed by the governor on April 6, 2012. It is effective July 1, 2012.

House Bill 7081 (Chapter 2012-99, Laws of Florida)

This bill is what has been called the growth management glitch bill. It does make several corrections and clarifications. Probably the most anticipated is the language that has been added to §163.3167(8), F.S., to allow the initiative or referendum processes prohibited by the 2011 language of that subsection to continue in certain jurisdictions if that local government’s charter, in effect as of June 1, 2011, allowed for them.¹⁴

There were also some changes to §163.3175, F.S., (addressing the compatibility of development with military installations), clarifying that the commanding officer’s comments are advisory, and are to be supported by data and analyses, and that those comments are to be in the context of the strategic mission of the base, public safety, and the economic vitality associated with the base’s operations. There were changes to §163.3177, F.S., clarifying the sources and limitations on comprehensive plan data and calculations. The public schools interlocal agreement language of §163.31777 was amended and exemption language added. Local governments may more easily do away with any of the “optional” concurrency provisions through changes to §163.3180(1)(a), F.S., which would allow the plan amendment to rescind the concurrency provision to be through the expedited state review process with no requirement that the plan amendment be transmitted to reviewing agencies for comment unless requested. Several changes were also made to §163.31777(6)(a) and §1013.33, F.S., addressing school concurrency and interlocal agreements.

This bill was signed by the governor on April 6, 2012. It is effective immediately upon becoming law.

End Notes:

1. The full language reads: “For any development permit application filed with the [county or municipality] after July 1, 2012, a [county or municipality] may not require as a condition of processing or issuing a development permit that an applicant obtain a permit or approval from any state or federal agency unless the agency has issued a final agency action that denies the federal or state permit before the [county or municipality] action on the local development permit. Issuance of a development permit by a [county or municipality] does not in any way create any rights on the part of the applicant to obtain a permit from a state or federal agency and does not create any liability on the part of the [county or municipality] for issuance of the permit if the applicant fails to obtain requisite approvals or fulfill the obligations imposed by a state or federal agency or undertakes actions that result in a violation of state or federal law. A [county or municipality] may attach such a disclaimer to the issuance of a development permit and may include a permit condition that all other applicable state or federal permits be obtained before commencement of the development. This section does not prohibit a [county or municipality] from providing information to an applicant regarding what other state or federal permits may apply.” ^{Click here to return to text.}
2. “[A]ny building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” §163.3164, Florida Statutes. ^{Click here to return to text.}
3. There is a potential issue in the allowed actions under the language, however. The first part states that a local government “may not require as a condition of processing or issuing a development permit that an applicant obtain a [federal or state] permit or approval.” But a later part says a local government “may include a permit condition that all other applicable state or federal permits be obtained before commencement of the development.” So, while a local government cannot require an applicant to get a state or federal permit before the local government will process the local application or issue the local development permit, they can put a condition on the permit that requires federal or state permits or approvals before the development (presumably including the amount of development that only triggered the local permits) can commence. This would put whether the development occurs, relative to state and federal approvals, still within local government’s control. It is unclear whether this condition would be enforceable by the local government, however, since the local government has no authority to take action to enforce federal or state laws. It may be little more than a general reminder to get all applicable approvals. ^{Click here to return to text.}
4. Full language of Section 24:
    (1) Any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014, is extended and renewed for a period of 2 years after its previously scheduled date of expiration. This extension includes any local government-issued development order or building permit including certificates of levels of service. This section does not prohibit conversion from the construction phase to the operation phase upon completion of construction. This extension is in addition to any existing permit extension. Extensions granted pursuant to this section; section 14 of chapter 2009-96, Laws of Florida, as reauthorized by section 47 of chapter 2010-147, Laws of Florida; section 46 of chapter 2010-147, Laws of Florida; or section 74 or section 79 of chapter 2011-139, Laws of Florida, shall not exceed 4 years in total. Further, specific development order extensions granted pursuant to s. 380.06(19)(c)2., Florida Statutes, cannot be further extended by this section.
   (2) The commencement and completion dates for any required mitigation associated with a phased construction project are extended so that mitigation takes place in the same timeframe relative to the phase as originally permitted.
   (3) The holder of a valid permit or other authorization that is eligible for the 2-year extension must notify the authorizing agency in writing by December 31, 2012, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization.
   (4) The extension provided for in subsection (1) does not apply to:
   (a) A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers.
   (b) A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action by the authorizing agency.
   (c) A permit or other authorization, if granted an extension that would delay or prevent compliance with a court order.
   (5) Permits extended under this section shall continue to be governed by the rules in effect at the time the permit was issued, except if it is demonstrated that the rules in effect at the time the permit was issued would create an immediate threat to public safety or health. This provision applies to any modification of the plans, terms, and conditions of the permit which lessens the environmental impact, except that any such modification does not extend the time limit beyond 2 additional years.
   (6) This section does not impair the authority of a county or municipality to require the owner of a property that has notified the county or municipality of the owner’s intent to receive the extension of time granted pursuant to this section to maintain and secure the property in a safe and sanitary condition in compliance with applicable laws and ordinances. ^{Click here to return to text.}
5. Per section 23 of the bill: “The holder of a valid permit or other authorization is not required to make a payment to the authorizing agency for use of an extension granted under section 73 or section 79 of chapter 2011-139, Laws of Florida, or section 24 of this act. This section applies retroactively and is effective as of June 2, 2011.” ^{Click here to return to text.}
6. §380.06(7)(a), Florida Statutes. Language added: “The reviewing agencies may make only recommendations or comments regarding a proposed development which are consistent with the statutes, rules, or adopted local government ordinances that are applicable to developments in the jurisdiction where the proposed development is located.” ^{Click here to return to text.}
7. §380.06(19)(e)2.k., Florida Statutes. ^{Click here to return to text.}
8. 380.06(24)(x), F.S. Full language:
    (x) Any proposed development that is located in a local government jurisdiction that does not qualify for an exemption based on the population and density criteria in s. 264 380.06(29)(a), that is approved as a comprehensive plan amendment adopted pursuant to s. 163.3184(4), and that is the subject of an agreement pursuant to s. 288.106(5) is exempt from this section. This exemption shall only be effective upon a written agreement executed by the applicant, the local government, and the state land planning agency. The state land planning agency shall only be a party to the agreement upon a determination that the development is the subject of an agreement pursuant to s. 288.106(5) and that the local government has the capacity to adequately assess the impacts of the proposed development. The local government shall only be a party to the agreement upon approval by the governing body of the local government and upon providing at least 21 days’ notice to adjacent local governments that includes, at a minimum, information regarding the location, density and intensity of use, and timing of the proposed development. This exemption does not apply to areas within the boundary of any area of critical state concern designated pursuant to s. 380.05, within the boundary of the Wekiva Study Area as described in s. 369.316, or within 2 miles of the boundary of the Everglades Protection Area as defined in s. 373.4592(2). ^{Click here to return to text.}
9. “In order to qualify as an agricultural enclave under this section, the parcel of land must be a parcel that:
   (a) Is owned by a single person or entity;
   (b) Has been in continuous use for bona fide agricultural purposes, as defined by s. 193.461, Florida Statutes, for at least 5 years before the date of any comprehensive plan amendment application;
   (c) Is surrounded on at least 95 percent of its perimeter by property that the local government has designated as land that may be developed for industrial, commercial, or residential purposes; and
   (d) Does not exceed 640 acres but is not smaller than 500 acres.” ^{Click here to return to text.}
10. Under §586.10(1), F.S. ^{Click here to return to text.}
11. Under §640.50, F.S. The existing language of this statute section currently exempts farm buildings and farm fences from the Florida Building Code and any county or municipal code or fee, except floodplain management regulations. ^{Click here to return to text.}
12. New language in §586.10(1): “The authority to regulate, inspect, and permit managed honeybee colonies and to adopt rules on the placement and location of registered inspected managed honeybee colonies is preempted to the state through the department and supersedes any related ordinance adopted by a county, municipality, or political subdivision thereof.” ^{Click here to return to text.}
13.  New language in §604.50 (1): “A farm sign located on a public road may not be erected, used, operated, or maintained in a manner that violates any of the standards provided in s. 479.11(4), (5)(a), and (6) – (8). New language in §604.50 (2)(b): “Farm sign” means a sign erected, used, or maintained on a farm by the owner or lessee of the farm which relates solely to farm produce, merchandise, or services sold, produced, manufactured, or furnished on the farm.” ^{Click here to return to text.}
14. New language in §163.3167(8): “However, any local government charter provision that was in effect as of June 1, 2011, for an initiative or referendum process in regard to development orders or in regard to local comprehensive plan amendments or map amendments may be retained and implemented.” ^{Click here to return to text.}

Purposeful Land Development Regulations

Everyone that has been around small children knows their favorite questions – “Whatcha doing?” and “Why?” In the drafting of Florida land development regulations, it’s a good idea to ask these same questions (hopefully in a more adult way) – “What are we trying to prevent or achieve?” and “Why do we want to prevent or achieve that; what purpose will the regulation serve?”

Based on common sense, it would seem obvious that there should be a reason to regulate; that every regulation should serve some purpose. And, based on common law (relevant case law), that is the requirement—regulations must be based on legitimate public purposes, which protect the public health, safety, or welfare and have a substantial relationship to the promotion of that public purpose.¹ But too often, in the rush to get something written to try to address the latest issue or crisis, only the terms of the regulation get debated and decided, not the purposes the regulation is to achieve. Without a clear understanding of what is to be achieved and why it needs to be achieved, it is all but impossible to achieve it. If everyone is advancing their own agenda, their own reasons for the proposals being made, you most likely will get regulations that advance conflicting purposes (or no real purpose). So, before we get started drafting new regulations, we should all ask “What are we trying to do” and “Why?”

Regulating To Prevent Harm

Preventing harm is a traditional purpose for the exercise of the local government’s police powers. A regulation is more likely to be considered an exercise of its police powers if it prevents a public harm.² Accordingly, land development regulations typically have at least a strong core of regulating to prevent harm. The following are examples of some of the harms that LDRs may be intended to prevent (check back for future articles on some or all of these):

• Nuisances
• Economic harm
• Harm to public health
• Visual impacts
• Noise impacts
• Smoke/Pollution
• Vibrations
• Odors
• Light – whether blockage of sunlight or the intrusion of artificial light
• Unsafe situations – whether in structural safety, hazards, or from crime

To be sure that the regulation is actually going to prevent the harm that is of concern, however, it is important to regulate the actual causes of the harm, rather than trying to regulate the resulting harm. Two examples of regulating results rather than cause can be seen in regulating to prevent negative impacts on property values and, to a large degree, in regulating aesthetic impacts.

In preventing harm to (a decrease in) property values, the real question to be answered is what factors would cause the harm to the property values;³ what is it that future purchasers of the neighboring properties⁴ wouldn’t want around.⁵ These factors (such as noise, smells, or intrusive lights) should be what the regulations address, not the end result of lower property values. An attempt to regulate the results rather than the cause is likely to end in vague, inconsistently applied, or ineffective regulations.

Similarly, in regulating to prevent negative aesthetic impacts, the real question is whether it is the appearance of the use or structure itself that is of concern or the impact of that appearance; is the regulation to prevent ugly uses or structures or to prevent the appearance of the use or structure from negatively impacting other areas, uses, or structures. If, for example, a use with significant outdoor storage is to be placed in an area of an established protected scenic vista, the regulation should address the question of whether the proposed type of outdoor storage at the proposed location would impair or prevent the achievement of the purpose of the scenic vista. The question would not be whether the outdoor storage itself is ugly or not, but whether having the proposed outdoor storage would be so visible and obtrusive as to defeat the purpose of having the scenic vista.

Regulating To Advance A Goal

The concept of the use of police power to “protect and promote the public welfare” has continued to expand to encompass a large variety of regulatory purposes, many of which can be grouped under the heading of those intended to advance a goal or goals (the “what are we trying to do” question). A few examples of these goals (many of which future articles will discuss) include:

• Amenity enhancement
• Regulatory efficiency
• Compatibility
• Economic stability or growth
• Job stability or growth
• Coastal protection and management
• Environmental protection
• Quality of life protection
• Efficiency in the provision of services
• Sustainability
• Energy efficiency and green design
• Aesthetic advancement
• Urban infill and redevelopment
• Neighborhood planning
• Regulating based on need

Once the goal that is to be achieved is identified, the question of why that goal is to be advanced—what purpose is to be achieved—becomes the focus. And, as with preventing harm, it is the identification of the relevant factors impacting that purpose that is important, to be sure the regulations actually achieve the goal.

Regulatory goals are often grouped under more general names, such as “smart growth,” form-based or design oriented regulations, “innovative” design and planning, or “planned” developments. It is good to have comprehensive and coordinated goals, but it is important that the grouping or method of the approach doesn’t become identified as the goal itself. By way of example, if the approach of a form-based code is chosen, having a form-based code shouldn’t become the goal itself, but rather the focus should be on having the approach actually advance the desired goals a form-based approach can address, such as walkable communities or encouraging mixed use developments, and aspects of the approach that don’t advance the  jurisdiction’s goals should not be included.⁶

Regulating for Inappropriate Purposes

Another reason to ask “Why?” is because it is also entirely possible to regulate for inappropriate purposes. Our country’s regulatory history, unfortunately, includes doing just that, such as restricting uses and property ownership based on race or economic status. Although they may not be as blatant as in the past, it is not difficult to find examples of regulations that, even if they don’t state it in the regulation, can have the effect of improper discrimination or other inappropriate purposes.

Many of these “inappropriate” purposes are recognized as improper under the U.S. and Florida constitutions. Others are addressed in the legislative statutes and regulations (U.S. Code, Code of Federal Regulations, Florida Statutes, or Florida Administrative Code). Other purposes may be improper because they advance the interests of individuals rather than those of the general public (see the article Limitations on Florida Police Power for more).

The purposes behind a regulation may also be “inappropriate” because they do not advance the local comprehensive plan. It is very easy to join the crowd rushing to implement the latest approach or to stop the problem of the day, but if the approaches or solutions are not compatible with and do not advance the relevant provisions of the local comprehensive plan, they are not consistent with the comprehensive plan (see the article Consistency with the comprehensive plan) and, therefore, cannot be allowed.

Beyond Stating The Purposes – Confirming The Regulation Does What It Is Supposed To Do

It isn’t enough to just list the purposes of the regulations at the beginning of the Code and never think about them again. It is also important to be sure the purposes are actually being advanced by the regulations. Not only must there be a substantial connection between the stated purposes and the regulations, the regulations must be tailored to actually address the public purpose(s), based on an actual analysis of the situation.⁷ The implementation of purposes is relevant in analyzing the legality of the regulations, but is also is relevant from a practical standpoint, in that if the regulations are not related to and advance the stated purposes, those purposes are not achieved.

Conclusion

In order to have effective, helpful regulations, one of the most important considerations is whether those regulations are purposeful—whether they relate to and actually implement identified and appropriate public purposes. To do so, at the start of the process and all the way through the drafting or amending of the LDRs, it is important to continuously ask “What are we doing,” “Why are we doing it,” and “Is what we are doing actually implementing what we want.”

Endnotes

1. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947). See the FloridaLDRs.com article The Rules of the Game – Analyzing Development Standards for more on this point.^{Click here to return to text.}
2. As opposed to it being the exercise of eminent domain when the regulation creates a public benefit. See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981). ^{Click here to return to text.}
3. As outlined in 1 American Land Planning Law § 16:3 (Rev. Ed.)  (“An allegation that something will affect property values says nothing whatever on the subject of whether a prohibition of that something would further the appropriate goals of zoning; the question always is, what is the factor in question? … In other words, the fact that something allegedly will have an “adverse” effect on property values does not constitute a separate goal for public action; such an effect on property values is purely derivative, reflecting the presence of something else—and the latter is the primary factor, to be looked into and evaluated. The validity of public action depends in every instance on this primary factor, which must be identified, analyzed, and classified as a valid (or invalid) goal. To put the point rather strongly, then, an allegation that a given action will reduce property values really tells nothing about whether that given action is or is not appropriate”) and  Land Use Planning and Development Regulation Law § 3.14 (2d ed.) (“While none would likely quarrel with the preservation of value as a legitimate factor in zoning, it cannot stand alone. Value is a consequence of action or inaction, and it is the action or inaction that matters”). ^{Click here to return to text.}
4. Because it is usually the neighbors’ property values that are said to be of concern, rather than that of the property owner seeking to use his or her property. ^{Click here to return to text.}
5. This is under the concept that having something undesirable in the neighborhood would decrease the number of potential purchasers, and, therefore, reduce the price that could be achieved in a sale (the property value). ^{Click here to return to text.}
6. If too many of the approach’s aspects are not consistent with the jurisdiction’s goals, then that may not be the right approach to use. ^{Click here to return to text.}
7. See the FloridaLDRs.com article The Rules of the Game – Analyzing Development Standards for more. ^{Click here to return to text.}

Governmental Exemption from Florida Land Development Regulations

Do governmental entities have to follow local Florida land development regulations? It is commonly assumed that they don’t. But actually, unless they are given a specific exception, they generally do.

Are local governments exempt from their own regulations?

Common law rule.

Historically, whether a local government had to follow its own land development regulations when it used land the local government owned or controlled depended on what the land was to be used for. If the land was to be used for a “governmental function” (activities having to do with the exercise of some element of government power (sovereignty)¹), the local government typically did not have to follow its own regulations.² If, however, the government activity fell into the category of a “proprietary function” (functions which the local government may perform when considered to be for the best interest of the citizens; activities that promote or benefit the comfort, convenience, safety and happiness of citizens³), the local government activity was subject to the local government regulations, unless the regulations provided an exemption.⁴ In other words, governmental functions were exempt from regulation unless the regulations made them subject to the regulations and proprietary functions were subject to the regulations unless the regulations made them exempt.

This seemingly straight forward governmental-proprietary function rule had complicating factors, however. The first was the difficulty in determining which activities were governmental and which were proprietary. Case law classified many functions that benefited the convenience and safety of the citizens, and so would seem to have been proprietary functions, as being governmental functions, such as construction and operation of a sewage disposal system,⁵ construction of a garbage incinerator,⁶ and construction of a public parking garage.⁷

The second complication of the governmental-proprietary function rule was whether the local government’s regulations themselves recognized the exemption or brought the activity under the control of the land development regulations. If a local government’s regulations affirmatively stated they applied to the adopting government’s facility, it appears the common law exemption was waived.⁸ Similarly, if the local government’s regulations explicitly stated they did not apply to particular government uses, they did not apply,⁹ arguably even if the activity was a proprietary one.¹⁰

So the governmental-proprietary function rule was historically the common law rule in Florida—if the government activity is a “governmental function,” the local government did not have to follow its own regulations unless the land development regulations affirmatively said they did, but if the government activity fell into the category of a “proprietary function,” it was subject to the local government regulations unless specifically exempted. This apparently changed in 1974.¹¹

In Parkway Towers Condo. Ass’n v. Metro. Dade County, 295 So.2d 295, (Fla. 1974), with almost no explanation, the Florida Supreme Court change the common law rule for governmental function facilities. The court stated that, going forward, “zoning variations to accommodate county or municipal facility purposes should either have been anticipated in zoning ordinances before construction or operation of such facilities is commenced or, if this has not been done, construction should not be undertaken thereof until after due modification or change therefor is made in existing zoning ordinances.”¹²

This “new” rule is, apparently, the controlling court decision on the issue.¹³ The Parkway Towers case, which addressed a governmental function, changed the historic rule for governmental functions, making it essentially the same as for proprietary functions. Therefore, the current common law rule requires that for a government facility, of any function, to be exempt from the land development regulations, that exemption must be addressed in the land development regulations, before the facility is constructed.

Growth management rules

The common law rule cases were decided, however, before the Florida growth management legislative acts. These statutory requirements also have an impact on the question.

The State Community Planning Act statutory requirements state that all development, both public and private, must be consistent with the comprehensive plan.¹⁴ Further, the statutes state that, “[a]fter a comprehensive plan … has been adopted…, all development undertaken by … governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.”¹⁵ As the land development regulations are required to be consistent with the Comprehensive Plan,¹⁶ the governmental development must also be consistent with, not outside of or in exception to, the land development regulations. This would mean that, if the Comprehensive Plan says certain types of development activities must be handled in certain ways, without differentiating between private and public development, the land development regulations cannot exempt the government activity from being regulated in that way.

This applies unless the activity does not constitute “development” under the statutory definition of the term.¹⁷ The following common government activities are considered to not be “development” and are not, therefore, required to be controlled by the comprehensive plan:¹⁸

• “Work by a highway or road agency … for the maintenance or improvement of a road …, if the work is carried out on land within the boundaries of the right-of-way.”
• Work by any [entity] engaged in the distribution or transmission of gas, electricity, or water, for the purpose of inspecting, repairing, renewing, or constructing on established rights-of-way any sewers, mains, pipes, cables, utility tunnels, power lines, towers, poles, tracks, or the like.”
• The creation or termination of rights of access, riparian rights, easements, … or other rights in land.

Several cases confirm this.¹⁹ Therefore, such non-“development” activities do not have to be addressed by or follow the requirements of the comprehensive plan.

Summary

Combining the common law rule with the requirements of the Community Planning Act, whether local government’s activities are controlled by their own regulations can be summarized as follows:

• All of a local government’s construction and activities must be in compliance and consistent with its comprehensive plan, unless there is a specific exemption for the activity in the comprehensive plan or the activity does not constitute “development.”
• All of a local government’s construction and activities must follow and be in compliance with its land development regulations, unless there is a specific exemption for the activity in the land development regulations.

Exemption from other government’s regulations

What happens when one government wants to build a government facility within the boundaries of another jurisdiction; can the local regulations be ignored? Does it make a difference if the building government is “superior” in the governmental hierarchy to the host jurisdiction?

Local government over local government

For one local government’s activities in another local government’s boundaries, the rule is simple. The use of land by one local government (Government A) within the boundaries of another local government (Government B) is governed by Government B’s land development regulations unless specifically exempted in Government B’s regulations.²⁰ The governmental-proprietary function test, when it had any application, was not applicable in this situation.²¹ The courts have held that requiring Government A to go through Government B’s regulatory process allows the review and balancing of the competing governmental interests²² and allows the greatest flexibility and fairness in resolving the issue.²³

Local government over State agency

There is an argument that, since all local governments are entities under the State of Florida, a State agency is superior to a local government and is, therefore, not bound by the lower government’s regulations. This argument was pretty much refuted, however, in the case of City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, Inc.²⁴ In that case, a State of Florida facility was to be established in the City of Temple Terrace that was inconsistent with the City’s zoning requirements. The court reviewed the different potential tests by which to decide the issue, including the superior jurisdiction test, and rejected all others in favor of a form of the balancing of interest test.²⁵ The court said that if the State legislature specifically states that local government zoning requirements do or do not apply to other government units, that pronouncement would control, but that in the absence of such a statement, there is no presumption one way or another. In upholding the district court decision, the Florida Supreme Court²⁶ stated “[e]xcept where a specific legislative directive requires a non-[con]forming use in the particular area, local administrative proceedings will provide the forum in which the competing interests of governmental bodies are weighed,” noting that the courts are available to review the balance and that the State of Florida always possesses the power to specifically exempt itself from local land development regulations.

So, State agencies must follow the regulations of the host local government except in three situations: 1) the host government’s regulations exempt the State agency; 2) through a review by the host local government, an exception or variance to the local regulations is approved; or 3) the State law specifically exempts the State activity from local regulations. These exceptions for State agencies also, apparently, apply to private entities performing the State activity in the State’s place.²⁷

Local government over federal government

Even federal government activities are not automatically exempt from local land development regulations; mere ownership or control of the land or facility by the federal government does not create an exception. “The Federal Government does not assert exclusive jurisdiction over the public lands … and the State [and local government] is free to enforce its … laws on those lands” unless those laws conflict with federal law.²⁸

The federal government does have the power to expressly exempt federal activities from local regulation.²⁹ Further, the federal government activity can be allowed, regardless of local regulatory prohibitions or restrictions, if it falls under a federal regulatory authority that is exclusively within the federal authority (i.e. the local regulation is “preempted” by the federal regulation).³⁰ The state or local law can be preempted in two ways: 1) the legislation created by Congress expressly states or evidences an intent to exclusively regulate an issue; or 2) the state or local law conflicts with the federal law, such that it is impossible to comply with both the state or local law and the federal law or the local law stands as an obstacle to accomplishing the full purposes and objectives of Congress.³¹

Summary

Local governments must follow the regulations of the local government in which the proposed government activity is to be located unless the host government’s regulations exempt such activities from regulation or, through the host government’s review, it is determined that an exception is warranted. Similarly, State agencies must also follow the regulations of the host local government unless the host government’s regulation or review provides an exception, but have the added exemption opportunity where the State legislature exempts such State activity from local regulations. Federal government activities must also comply with local government land development regulations unless specifically exempted at the local level, expressly exempted by federal law, or the federal regulatory authority preempts the local regulation.

Conclusion

Although many people assume there is a blanket exemption from local government regulations for government facilities, this is not the case. Generally, the default is that the local regulations must be met; all levels of government have to follow the land development regulations of the local government in which they are building a facility or undertaking an activity unless there is some action (by the local government or the higher authority) that affirmatively removes that requirement.

Endnotes

1. Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953). ^{Click here to return to text.}
2. A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126, 129 (Fla. 4th DCA 1971) (“[I]n the performance of [governmental functions,] a governmental body need not comply with its own zoning ordinances”). ^{Click here to return to text.}
3. Black’s Law Dictionary 1219 (6th ed. 1990), cited in Sebring Airport Auth. v. McIntyre, 642 So.2d 1072, 1074 (Fla. 1994); and Daly v. Stokell, 63 So.2d 644, 645 (Fla. 1953). ^{Click here to return to text.}
4. City of Treasure Island v. Decker, 174 So.2d 756, 759 (Fla. 2d DCA 1965) (“[T]he governmental body itself if operating in a proprietary capacity is governed by the zoning regulations of the area in the absence of specific legislative pronouncement to the contrary”). ^{Click here to return to text.}
5. A1A Mobile Home Park, Inc. v. Brevard County, 246 So.2d 126, 129 (Fla. 4th DCA 1971) (“[T]he construction and operation of a sewage disposal system is governmental, as distinguished from a proprietary, function”). ^{Click here to return to text.}
6. But perhaps it was so classified only because this construction was declared a governmental function by a Special Act of the State legislature. See Nichols Eng’g & Research Corp. v. State ex rel. Knight, 59 So.2d 874, 875 (Fla. 1952). ^{Click here to return to text.}
7. Jefferson Nat. Bank of Miami Beach v. City of Miami Beach, 267 So.2d 100, 101-02 (Fla. 3d DCA 1972). ^{Click here to return to text.}
8. Metro. Dade County v. Parkway Towers Condo. Ass’n, 281 So.2d 68, 69 (Fla. 3d DCA 1973), but this was replaced by the Florida Supreme Court’s review of the case. See infra. ^{Click here to return to text.}
9. Jefferson Nat. Bank of Miami Beach v. City of Miami Beach, 267 So.2d 100, 101-02 (Fla. 3d DCA 1972) (“A zoning authority has the right, upon the adoption of a comprehensive zoning ordinance, to exempt itself from the regulations applicable to private interests”). ^{Click here to return to text.}
10. This is under the argument that if the local governments have the authority to regulate the uses, they also have the authority to exempt them from regulation. ^{Click here to return to text.}
11. The Third District Court of Appeals in Metro. Dade County v. Parkway Towers Condo. Ass’n, 281 So.2d 68 (Fla. 3d DCA 1973) considered an appeal of a temporary injunction preventing Dade County from building a county jail until the County zoned the property to a district that allowed the jail. After finding that the construction of the proposed county jail facility was a governmental function, the court found that the County had a common law right to place the jail on any site and, without an affirmative showing of an intent to waive the right, a general provision in the Code, did not waive this right. The court found that, unlike a specific Code restriction on where police stations could be located, the County’s regulations did not address jails at all and, since the regulations did not affirmatively show an intent to regulate jails, the County was free to exercise the government function of building a jail, without regard to the provisions of the land development regulations. The court then reversed the injunction, allowing the construction of the jail to go forward. The case was appealed to the Florida Supreme Court (Parkway Towers Condo. Ass’n v. Metro. Dade County, 295 So.2d 295, (Fla. 1974)). The court agreed to consider the district court’s decision to repeal the injunction (issued a writ of certiorari), but later decided that action was “improvident” and discharged the writ. In deciding to not hear the matter, the court stated that, since the County had held two public hearings on the issue of going forward with the jail (the court perhaps reasoning that these public hearings were the equivalent to public hearings on amending the zoning code to address the jail), and the jail construction was proceeding, nothing would be gained to pause the construction so that the County could amend the regulations to allow the jail. Then, without further explanation, the court changed the common law rule. ^{Click here to return to text.}
12. Parkway Towers, 295 So.2d at 295-96. ^{Click here to return to text.}
13. There is only one case that cites the Florida Supreme Court Parkway Towers case, relative to this issue, and that is a federal case, Everett v. City of Tallahassee, 840 F. Supp. 1528, 1539 (N.D. Florida 1992).  In that case, the court found the Florida Supreme Court’s decision in Parkway Towers controlled, even though a later case confirmed by the Florida Supreme Court seemed to say the governmental-proprietary function test still applied in the review of a local government’s ability to ignore its own regulations. The Everett court found that, because the issue in the Temple Terrace case (discussed infra) was whether one local government had to follow another government’s regulations, rather than an issue of a government following its own regulations and the statements about a government’s own regulations was dicta, the Parkway Towers Florida Supreme Court decision controlled. ^{Click here to return to text.}
14. §163.3161(5), F.S. ^{Click here to return to text.}
15. §163.3194(1)(a), F.S. ^{Click here to return to text.}
16. §163.3194(1)(b), F.S. ^{Click here to return to text.}
17. Under the §380.04(3), F.S., definition. See also the article What is the “development” land development regulations can regulate. ^{Click here to return to text.}
18. Whether they may be addressed by a comprehensive plan is another question, for another article. ^{Click here to return to text.}
19. See Rinker Materials Corp. v. Town of Lake Park, 494 So.2d 1123 (Fla.1986); Board of County Commissioners of Monroe County v. Department of Community Affairs, 560 So.2d 240 (Fla. 3d DCA 1990; 1000 Friends of Florida, Inc. v. St. Johns County, 765 So.2d 216, 217-18 (Fla. 5th DCA 2000). ^{Click here to return to text.}
20. See City of Treasure Island v. Decker, 174 So.2d 756, 759 (Fla. 2d DCA 1965), which explained that this “permits each governmental unit to perform its functions without serious interference from the other.” ^{Click here to return to text.}
21. Orange v. City of Apopka, 299 So.2d 652, 654-56 (Fla. 4th DCA 1974) (“[T]he purpose of zoning is orderly development and the preservation of property values. Each governmental unit is charged with the responsibility of preparing a comprehensive plan which will provide optimum development in an orderly fashion. It strikes us as anomalous to allow one governmental unit charged with a specific responsibility, such as supplying housing, airports, or sewerage facilities, to enter another governmental unit and unilaterally decide to locate one of its governmental facilities anywhere it may choose”). ^{Click here to return to text.}
22. Palm Beach County v. Town of Palm Beach, 310 So.2d 384, 385 (Fla. 4th DCA 1975) (“We affirm the general proposition of law espoused in Orange County v. City of Apopka …; in resolving conflicts between different governmental units the balancing-of-competing interests test is to be applied”); Pal-Mar Water Mgmt. Dist. v. Martin County, 377 So.2d 752, 754-55 (Fla. 4th DCA 1979). ^{Click here to return to text.}
23. Vill. of N. Palm Beach v. Sch. Bd. of Palm Beach County, 349 So.2d 683, 683-84 (Fla. 4th DCA 1977). ^{Click here to return to text.}
24. 322 So.2d 571, 573-79 (Fla. 2d DCA 1975) aff’d, 332 So.2d 610 (Fla. 1976). ^{Click here to return to text.}
25. Specifically, the court found that the “superior sovereign test,” which says that the higher government in a governmental hierarchy should not be bound by the requirements of a lower government, was not applicable because of the Florida Constitutional and statutory powers of local governments; that the governmental-proprietary function test only applied to situations where a government seeks to violate its own zoning ordinance (which, as discussed earlier in this article, was no longer true at this point; the test did not even apply in that situation); and that the “power of eminent domain” test, which says that where a political unit has condemnation authority, it is automatically immune from local zoning regulations when it is performing its public function, does not apply because the power to condemn has nothing to do with the power to use property. The court ultimately adopted the “balancing of interests” test as the fairest method by which to decide such cases, as it allows a case by case determination that takes into consideration all of the relevant factors. The court held that “[w]hen the state legislature is silent on the subject, the governmental unit[, State agency or otherwise,] seeking to use land contrary to applicable zoning regulations should have the burden of proving that the public interests favoring the proposed use outweigh those mitigating against a use not sanctioned by the zoning regulations of the host government. There may be cases in which a state agency may be so convinced of the overriding public need for a particular land use that it may choose to go forward without resort to local authorities. Yet, under normal circumstances one would expect the agency to first approach the appropriate governing body with a view toward seeking a change in the applicable zoning or otherwise obtaining the proper approvals necessary to permit the proposed use.” ^{Click here to return to text.}
26. In Hillsborough Ass’n for Retarded Citizens, Inc. v. City of Temple Terrace, 332 So.2d 610, 613 (Fla. 1976). ^{Click here to return to text.}
27. City of Temple Terrace v. Hillsborough Ass’n for Retarded Citizens, Inc., 322 So.2d 571, 573 (Fla. 2d DCA 1975) aff’d, 332 So.2d 610 (Fla. 1976) (“Traditionally, where a state agency is immune from municipal zoning, those parties contracting to do the services which would otherwise be performed by the state have also been held to be immune”). ^{Click here to return to text.}
28. Kleppe v. New Mexico, 426 U. S. 529, 543 (1976). ^{Click here to return to text.}
29. Hillsborough County v. Automated Medical Laboratories, Inc., 471 US 707, 712-13 (1985). ^{Click here to return to text.}
30. California Coastal Comm’n v. Granite Rock Co., 480 US 572, 580-81 (1987) quoting Kleppe v. New Mexico, 426 U. S. 529, 539 (1976) (“Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause”). ^{Click here to return to text.}
31. Id.; Hillsborough County v. Automated Medical Laboratories, Inc., 471 US 707, 712-13 (1985). ^{Click here to return to text.}

The Rules of the Game – Analyzing Development Standards

SUMMARY:

Development standards are the parts of the LDRs that say what must be done and how it must be done; they are the measures against which development activities are reviewed to determine if they are being done “right.”

The development standards need to:

• Implement and tie directly to the local government’s comprehensive plan, from concept to detail, to reflect the community’s adopted development perspective and goals;
• Have, in each standard, a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare and be tailored to actually address the public purpose;
• Be effective; actually doing what they are intended to do without unintended consequences;
• Inform everyone of the rules to be followed, so they know their rights, opportunities, and obligations;
• Be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;
• Be specific and clear enough to direct the land use decisions so that the decision-makers do not have arbitrary discretion in making the decisions and clear enough to avoid arbitrary enforcement;
• Be efficient by not being unnecessarily complex, including more than needs to be addressed, or being unreasonably difficult or costly to use, administer, or enforce;
• Be equal and impartial in their operation; applicable in all like cases with fairly consistent, equitable results, treating like things alike;
• Be reasonable and not impose unnecessary or excessive restrictions;
• Not be so restrictive that they are confiscatory, precluding any reasonable use of a property;
• Be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose, with justifiable distinctions, and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar or similarly impacting uses/activities;
• Be consistent with applicable federal and state laws, but not attempt to implement or regulate beyond recognizing those laws, unless so directed by those laws;
• Restrict administrative or quasi-judicial actions to the adopted regulations and not allow the unlawful delegation of the legislative authority or arbitrary discretion in whether to follow the standards; and
• Provide direction to the courts of what should have been the local governments review factors, so meaningful judicial review is available.

FULL ARTICLE

Several of the articles on this website discussing quasi-judicial hearings (We Could Play This Game Much Better If We Knew The Rules, Purpose of a Florida Quasi-judicial Land Use Hearing, Conducting Florida Quasi-Judicial Land Use Hearings That Work) say that the key to quasi-judicial hearings is that they apply the adopted regulations. But can those regulations say anything, in any manner, as long as they are adopted? As you probably suspected, the answer is no; there are limitations, both legal and practical.

These limits affect both the procedural and the substantive provisions of the LDRs. Putting aside the procedural provisions for other articles, this article addresses the substantive regulations, the development standards.

The development standards are the parts of the LDRs that say what must be done and how it must be done. They are the measures against which development activities are reviewed to determine if they are being done “right.” Without them, there are no regulations. Without properly written ones, there can be regulatory chaos or regulation only for the sake of regulation.

What are “properly written” development standards?

Standards that implement the local comprehensive plan.

A major role, if not the major role, of the LDRs is to implement the comprehensive plan, In addition to this being mandated by state law,¹ as addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, how well the LDRs development standards implement the comprehensive plan is a major part of whether the development orders approved under the LDRs are considered “consistent” with the comprehensive plan.

The development standards should also be the method of implementing the local government’s development perspective and goals. If the development standards do not reflect the city’s or county’s goals, they cannot implement those goals and are, in actuality, either reflecting some other goals or, by not reflecting any clear goals, creating confusion and unintended consequences.

Therefore, the development standards of the LDRs must be tied to the local comprehensive plan, from concept to detail. If a jurisdiction wants LDRs that reflect a particular approach, such as a form-based code, or include a particular concept, such as transfer of development rights, that approach or concept must be addressed, or at least be allowed, in the comprehensive plan; an approach or concept foreign to the comprehensive plan cannot be consistent with the plan and certainly does not implement the plan.

The development standards must also implement the details of the comprehensive plan. The greater the detail in the comprehensive plan, the more the LDRs development standards must reflect the plan language, even to the point of putting the plan language in the development standards directly.

Standards that relate to legitimate public purposes.

Development standards are limited by the power of the local government to make such regulations (as addressed in the articles Limitations on Florida Police Powers, Authority to Regulate Land, and Powers of Local Governments to Regulate Land). These development standards, as an exercise of these police powers, must have a substantial relationship to the promotion of a legitimate public purpose that protects the public health, safety, or welfare.² Further, the regulation must be tailored to actually address the public purpose(s), ³ based on an actual analysis of the situation.⁴

Effective standards.

There is really little reason to have regulations if they are not effective; why have regulations if they don’t do what they are supposed to do. To effectively serve a public purpose, that purpose needs to be clearly identified (much more than just “to protect the public health, safety, and welfare”) and the regulations must remain true to that purpose from concept to detail. Standards for special exceptions or conditional uses should clearly delineate what is needed to make the use compatible with the permitted uses in the district or to mitigate the factors that make the use a special exception/conditional use, rather than a permitted use, in the first place. Standards that state they are for the purpose of encouraging a use or activity should not have so many restrictions that the use is actually discouraged. Similarly, if a use or activity is discouraged in a location or manner, the encouraged alternatives should be realistically possible, without so many restrictions that it is about as difficult to have the encouraged use/activity approved as it is the discouraged use/activity. Each standard should be reviewed for effectiveness against these tests: “What goal or purpose is this standard to implement? Does it implement that? Specifically, what is this standard to do? Does it do that? Does it do more than that or have unintended consequences? Is there a more effective way to do that, with less undesirable consequences?

Standards that inform.

The development standards are the “rules of the game.” As discussed in the article We Could Play This Game Much Better If We Knew The Rules, these “rules” should inform everyone (applicants, opponents, purchasers of property, users of property, and application or enforcement action decision-makers) of the rules to be followed. By these rules everyone knows their rights, opportunities, and obligations under the LDRs; what they have the right to do, must do, ought to do, and may do.

The development standards can also inform the user or potential user of the jurisdiction’s intent on certain subjects and overall approach to development. When the standards implement the comprehensive plan⁵ and are internally consistent, they can inform potential users of whether the community encourages urban development, rural conservation, rapid development review, slow growth, or any other community goal. Poorly written standards can also “inform” (whether it is true or not) the potential user that the jurisdiction doesn’t have a clear vision of what they want, isn’t interested in efficient effective regulations, or may be a regulatory nightmare that it isn’t worth the effort to wade into.

Standards that are certain and not inappropriately vague.

The LDR standards cannot be so uncertain as to be unconstitutionally vague under the Due Process provisions of the State and Federal Constitutions.⁶ To be constitutionally valid, regulations, such as the standards in LDRs,⁷ must be specific and clear enough that a person of common intelligence can tell what conduct is restricted by the standard and does not have to guess at what the standard means;⁸ the standard must give adequate warning or fair notice of what is required.

As stated by the Florida Supreme Court, “though easily enunciated, the vagueness test is often difficult to apply. … What constitutes unconstitutional vagueness is itself vague.”⁹ Imprecise language, by itself, does not make a standard fatally vague.¹⁰ A standard is not necessarily unconstitutionally vague just because it is subject to different interpretations.¹¹To be sufficiently clear, the standard does not have to be intricately detailed;¹² the amount of detail needed depends on the subject and the difficulty in providing highly detailed standards.¹³

One way to measure whether a standard is too vague is to evaluate the standard in its context of use. If the potentially ambiguous provisions of the standard gains sufficient meaning or clarity through a reading of the LDRs as a whole, the local comprehensive plan (which the LDRs are supposed to be implementing), state or federal law, common law, common trade usage, or some other relevant source (especially one referenced in the standards), it may not be considered unconstitutionally vague.¹⁴

Meeting constitutionality requirements is not the only reason a standard should not be vague, however. The standards are the rules that are to be followed. From a practical standpoint, if they are so unclear, so vague, that anyone that needs to use them can’t readily figure them out or has to resort to digging through multiple sources to figure out what they mean and what needs to be done, then they have failed as meaningful regulations. If it is not possible to tell from the standards what to do (or not do), the standards cannot implement the jurisdiction’s goals and intent in a consistent, efficient, and effective manner.

Standards that protect against arbitrary decisions and enforcement.

One major reason development standards should not be vague is because standards that people can’t figure out result in arbitrary decisions on when and how the standards apply. Arbitrary development standards¹⁵ are not lawful¹⁶ and do not aid in a fair, efficient and effective implementation of the comprehensive plan and the jurisdiction’s land development goals. The standards are vulnerable to claims of arbitrariness, not just when they have actually resulted in arbitrariness, but even when there is an opportunity for arbitrariness.¹⁷

The standards must be specific and clear enough to actually direct the land use decisions; standards cannot allow the decision-makers arbitrary discretion in making the decisions.¹⁸ The standards must also be clear enough to avoid arbitrary enforcement.¹⁹

Efficient standards.

Standards that are unnecessarily complex cannot be readily followed, meaning they are likely to result in longer review processes, be applied inconsistently, or be ignored, none of which is very efficient. Standards that include much more than needs to be addressed are similarly likely to be inefficient. Every development standard should be crafted with an eye to how it will be administered and enforced. If it cannot reasonably be administered or enforced or the cost, in terms of staff time and tax dollars spent, for doing so is too high, the standard’s inefficiency likely does more harm to the regulatory purpose it was to serve than good. Similarly, if the standards require too much of the user, beyond what is really necessary, there is every incentive for the user to try to get the standard waived or varied, or the user just ignores the requirement and hopes they aren’t called on it; this is also inefficient.

Standards that are equitable and nondiscriminatory.

The development standards must be equal and impartial in their operation,²⁰ applying in all like cases with fairly consistent, equitable results. This does not mean that every person and every use must be treated the same, but that similar situations must be treated similarly.²¹ Consequently, the standards cannot group or separate uses in a way that creates unequal or discriminatory treatment between similarly situated uses.²² The test for determining the validity of a grouping or classification in the regulations is to assess “whether that classification rests upon some ground of difference having a fair and substantial relation to the object of the [regulation], so that all person similarly circumstanced shall be treated alike.”²³

Reasonable and non-confiscatory standards

The development standards must be reasonable;²⁴ and cannot impose unnecessary or excessive restrictions on a legitimate use of property.²⁵ Additionally, the standards cannot be so restrictive that they are confiscatory (creating a regulatory taking of the land), precluding any reasonable use of property.²⁶

Standards that are internally consistent.

Development standards need to all work together in a consistent manner. They need to be internally consistent, so that the LDRs groupings of uses or activities make sense relative to the regulation’s purpose and the restrictions placed on certain uses or activities are not arbitrarily different from those put on similar uses/activities or those with similar impacts on the community. There must be justifiable distinctions between the groupings or the way the uses or activities are treated.²⁷

Further, the standards have to treat like things alike. The development standards cannot apply to only certain uses while permitting other similar uses to go unregulated or with lesser regulation²⁸ and cannot unreasonably encroach on one’s right to conduct a legitimate business, even with the intent of promoting the public interests.²⁹

Similarly, the regulations cannot be arbitrarily applied to uses or activities. There must be some analysis done to justify how the regulations will work in the particular jurisdiction and to demonstrate that they will advance the public purpose they purport to be related to;³⁰ the standards need to have a reasonable or practical basis.³¹ This means that borrowing regulations from other jurisdictions without examining their fit in the target jurisdiction or pulling numbers out of the air because they sound good will not suffice.

Beyond not just conflicting with each other, the standards also need to all advance common goals or purposes.³² Standards that don’t have a grounding in the jurisdiction’s larger goals or which are at odds with the approach taken with other standards in the LDR often result in arbitrary requirements. It should be remembered that the standards adopted in the LDRs work with each other to define the jurisdiction’s intent on how the community is to be developed; a standard isn’t just about regulating that one use or activity, they cumulatively define the community’s regulatory theme.

Standards that are consistent with federal and state laws.

The development standards need to be consistent with applicable federal and state laws. But the standards should not, in most cases, attempt to implement these laws.

If the subject of the federal or state law is solely in the federal or state authority, the local development standards should recognize those laws and that authority, with no standards that conflict with the laws or the authority, but should not attempt to implement these laws (e.g. include requirements of proof of compliance, or penalties for non-compliance, with these laws). When the subject is exclusively in the federal or state authority, local governments have no authority to make laws on that subject (they are “preempted”) or to administer those laws, and any attempt to do so would not be valid.³³

If the subject is also concurrently within the local government’s authority, care must be taken to keep local laws, and their implementation/enforcement, from creating conflicts with the state or federal law. Often, even though the local government may also has authority to regulate in a subject area, when the issue is not a major local issue or the review factors are so complex or expensive as to exceed the local government’s ability to enforce local standards, it may be more appropriate to just defer to the state or federal regulations in the local development standards.

There are some federal and state laws, however, that address local government actions³⁴ and need to be directly integrated in the local development standards. These are federal and state laws that should (and usually must) be implemented by the local development standards.

Standards that restrict administrative and quasi-judicial actions to the proper role.

The standards are the rules to be followed. Only the legislative body can make these standards or rules. Accordingly, governmental decisions made or actions taken by persons or bodies, other than the legislative body acting in its legislative capacity, must only be to apply, administer, or enforce the adopted regulations.

If the standards in those regulations are essentially non-existent, too vague, or provides so little guidance that making decisions requires the use of factors or analysis other than those adopted for that purpose,³⁵ the decision-maker becomes the rules-maker (by deciding what not-adopted rules must be met) rather than the administrator or applier of the law. This is beyond the scope of power (authority) of the administrator or quasi-judicial decision-maker.³⁶ Therefore, the standards cannot authorize or allow consideration of any factors outside of the adopted standards.³⁷

Further, the standards applied to development and land use activities must be adopted by the legislative body,³⁸ in almost all situations within the LDRs,³⁹ rather than being part of an administratively created development procedures manual, by interpretation, or by customary usage (so as to prevent unlawful delegation of the legislative authority).⁴⁰ And, again, the legislative body cannot allow the standards it adopts in the LDRs to be so vague or inadequate, either purposefully or by default, that they would allow someone other than the legislative body to say what the rules are (an unlawful delegation of the legislative authority).

Additionally, the standards cannot allow arbitrary discretion in whether the standards must be followed or can be ignored.⁴¹ The standards have to actually create the rules that are to be followed and ensure that they, and only they, are followed.

Standards that provide direction to reviewing courts.

The standards should be able to provide direction to reviewing courts of what should have been the local governments review factors, so meaningful judicial review is available. If they are written and followed properly, there should be clear requirements that the decision-makers should have followed, so the reviewing court can accurately examine the situation, without wandering through the whole record and improperly re-weighing the particulars.

Implications of Improper Standards

Besides the very important problems of comprehensive plans not being implemented and LDRs not effectively or efficiently achieving their purposes, there are other implications of not having appropriate standards.

If an application meets the standards, it must be approved.

As has been addressed in several other articles,⁴² if an application for a development order, except for a rezoning, meets the adopted standards, the application must be approved. If the standards don’t regulate what the jurisdiction actually intends and relies on the “discretion” of the application reviewer/decision-maker to get the intended result, they may well fail.⁴³ Therefore, the implication of having standards that don’t do what they are supposed to do is that there may be undesired development or greater numbers of lawsuits.

If the standards are found to be invalid, the regulations are void.

Some may think that having vague or otherwise inadequate standards gives the decision-makers more discretion. In reality, it puts the regulations at risk for being declared invalid or void (as if they did not exist).⁴⁴ This can result in whole portions of the LDRs being declared void, as happened to Miami-Dade County’s “Unusual Uses” provisions after the Third District Court of Appeals’ first ruling in Miami-Dade County v. Omnipoint Holdings, Inc.,⁴⁵ which was later quashed by the Florida Supreme Court,⁴⁶ but resulted in a lot of headaches in the interim.

When the standards that are found to be invalid are for special exception type uses (uses that would not be allowed in a district unless they meet a heightened review level), the uses themselves become prohibited and become unavailable as potential uses in those districts.⁴⁷ Ironically, this actually gives a disincentive to those applicants that might be inclined to challenge a denial on the grounds that the standards are inadequate, in that, rather than winning the challenge and being able to move forward with the use, the applicant can win the challenge and have no option to request the use; helping to perpetuate the inadequate regulations.

The decision-maker does not have the authority to ignore the standards.

Just as the decision-maker does not have the authority to go outside the adopted standards to consider other factors, the decision-maker also does not have the authority to ignore what is adopted, even if it is not relevant or is inconsistent with other, controlling, laws.⁴⁸ This means that, unless the regulations provide for exceptions or circumstances when the standards can be determined to be inapplicable or irrelevant, all of the standards in a group or section would have to be applied, whether they should be or not. It also means that standards that do not follow or are not consistent with federal or state law, or even the local comprehensive plan, must be followed and applied. Since these laws and the comprehensive plan are supposed to be superior to local regulations, it is clear that keeping outdated or inconsistent standards in the LDRs can create significant legal problems.

Conclusion

The purposes for having the standards define the limits that are placed on the drafting and administration of the standards. To follow the relevant constitutional limits, they must be within the proper scope of power of the jurisdiction and the actual decision-maker. To implement the local goals, they must provide meaningful regulations that, when applied and enforced, actually implement the intent and requirements of the local charter and comprehensive plan. To be efficient, effective, and fair, they must allow and require actions and decisions that are consistent, non-arbitrary, and equitable. To inform, they must be sufficiently clear and consistent as to actually advise every one of the rules they are to follow.

The standards are the heart of the LDRs. They say what must be done; everything else is just administration or process. As indicated in this article, there are many legal requirements for how the standards should be drafted. In reality, however, the courts are fairly lenient on how tightly these legal requirements bind the local governments. So what incentive is there for local governments to potentially tie their hands with specific standards? The biggest one, and the only one they should need, is to be able to actually implement the goals they have developed for the community, through clear, efficient and effective standards that address what is intended to be addressed, fairly and predictably. This should be enough to justify making the effort.

Endnotes:

1. See the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan for the list of the Florida Statues addressing LDRs’ implementation of the comprehensive plan. ^{Back to text.}
2. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla. 1981) (“If the regulation does not promote the health, safety, welfare, or morals of the public, it is not a valid exercise of the police power”); Newman v. Carson, 280 So.2d 426, 428 (Fla. 1973) (“Legislative action exercised under the state’s police power is valid if such exercise is confined to those acts which may reasonably be construed as expedient at least for the protection of public safety, public welfare, public morals or public health.”); Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The owner will not be required to sacrifice his rights [to make legitimate use of his lands] absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restriction exceeds the bounds of necessity for the public welfare, … they must be stricken as an unconstitutional invasion of property rights”); City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430 (Fla. 1954) (“It is well settled that a zoning ordinance to be valid must bear a substantial relation to the public health, safety, morals or general welfare”) ; City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947) (“When regulations are to be imposed in order to promote health, welfare, safety and morals it is necessary that … the ordinance must have some relation to a lawful purpose-to promote health, welfare, safety and morals”). ^{Back to text.}
3.  101 C.J.S. Zoning s16, as cited in Davis v. Sails, 318 So.2d 214, 218 (Fla. 1st DCA 1975) (“The required relationship of the zoning ordinance or regulation must be real and not feigned. The law will not tolerate an invasion of the right of property under the guise of a police regulation in the professed interest of the public health or safety when it is manifest that such was not the object of the regulation. Hence, a restrictive ordinance which bears no material relation to the public health, safety, morals, or general welfare cannot, under the guise of a zoning regulation, either confiscate property or inflict a substantial injury on the owner thereof”). ^{Back to text.}
4.  7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“[A] zoning ordinance enacted simply as a piece of guesswork, with no attempt to study the city’s problems and no effort to accomplish some general plan adapted to the city’s needs in the way of health, safety, prosperity, welfare, and the like, and attended by no surety of the existing situation to which it applies, is generally unsustainable as a reasonable or valid police regulation”), citing State ex rel. Henry v. City of Miami, 117 Fla. 594, 158 So. 82 (1934) and Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So. 2d 379 (Fla. 5^th DCA 1984). ^{Back to text.}
5. Assuming the comprehensive plan is well written. ^{Back to text.}
6. The Federal and State Constitutions (Amendment XIV of the U.S. Constitution and Article I, Section 9, of the Florida Constitution) provide that people cannot be deprived of life, liberty, or property without due process of law. Generally speaking, the greater the potential impact on the interest, the greater the amount of due process protections required. This means that criminal laws, those laws that involve highly protected interests, and those involving major economic impact (especially when there are lesser public interests protected by those laws) are typically construed to require greater amounts of due process protections. LDRs probably fall fairly far down the protection scale, except in the cases of freedom of speech rights or other “fundamental” rights. That being said, however, due process rights still control the LDRs, albeit at a lesser level than in some other situations. ^{Back to text.}
7. There is at least one case, however, that said this test does not apply to regulations such as the LDRs unless someone who violates the regulations is subject to penalty (a “fine, penalty, or confinement inflicted upon a person by the authority of the law”). Florida E. Coast Indus. Inc. v. State, Dept. of Cmty. Affairs, 677 So.2d 357, 362 (Fla. 1st DCA 1996). ^{Back to text.}
8. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977); Webb v. Department of Professional Regulation, Bd. of Professional Engineers, 595 So.2d 1103 (Fla. 5^th DCA 1992); Bertens v. Stewart, 453 So.2d 92, 93-94 (Fla. 2d DCA 1984), City of St. Petersburg v. Pinellas County Police Benev. Ass’n, 414 So.2d 293, 294-95 (Fla. 2d DCA 1982). ^{Back to text.}
9. D’Alemberte v. Anderson, 349 So.2d 164, 166 (Fla. 1977). ^{Back to text.}
10. Cashatt v. State, 873 So.2d 430, 435 (Fla. 1st DCA 2004). ^{Back to text.}
11. Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla. 1983). ^{Back to text.}
12. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007); Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 639 (Fla. 1st DCA 1999) (“Impossible standards are not required.”); Life Concepts, Inc. v. Harden,562 So.2d 726, 728 (Fla. 5th DCA 1990) (“While it is true that the ordinance did not contain specific quantitative guidelines …, that level of specificity is neither required nor workable.”). ^{Back to text.}
13. Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007) (“The specificity of the guidelines will depend on the complexity of the subject and the “degree of difficulty involved in articulating finite standards”) quoting Askew v. Cross Key Waterways, 372 So.2d 913, 918 (Fla.1978). ^{Back to text.}
14. D’Alemberte v. Anderson, 349 So.2d 164, 166-69 (Fla. 1977). ^{Back to text.}
15. As one guide, according to § 120.57(1)(e)2.d., F.S., which regulates state agency rules, “[a] rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational ….” ^{Back to text.}
16. N. Bay Village v. Blackwell, 88 So.2d 524, 526 (Fla.1956) (“An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment”); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 149 (Fla. 1st DCA 1979) (“Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.”); Friends of Great Southern., Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 830 (Fla. 4th DCA 2007). ^{Back to text.}
17. ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146, 150 (Fla. 1st DCA 1979) (“Nor is it necessary that the record reveal that the governing body or its members have in fact acted capriciously or arbitrarily. It is the opportunity, not the fact itself, which will render an ordinance vulnerable”); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1104 (Fla. 3^rd DCA 1983). ^{Back to text.}
18. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953) (“The generally accepted rule is to the effect that an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rules and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid”), quoting Permenter v. Younan, 31 So.2d 387, 389 (Fla 1947); City of W. Palm Beach v. State ex rel. Duffey, 30 So.2d 491, 492 (Fla. 1947); Alachua County v. Eagle’s Nest Farms, Inc., 473 So.2d 257, 260 (Fla. 1st DCA 1985) (Without sufficient standards, “councilmen can act upon whim, caprice or in response to pressures which do not permit of ascertainment or correction”), quoting Effie, Inc. v. City of Ocala, 438 So.2d 506, 509 (Fla. 5th DCA 1983); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3^rd DCA 1983). ^{Back to text.}
19. State v. Mark Marks, P.A., 698 So.2d 533, 539 (Fla. 1997). ^{Back to text.}
20. City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“[T]he specific exercise of police power … must be impartial and nondiscriminatory in its proscription”); City of Homestead v. Schild, 227 So. 2d 540, 543 (Fla. 3d DCA 1969) (“[T]he law of Florida is committed to the doctrine of the requirement that zoning ordinances and their exceptions must be predicated upon legislative standards which can be applied to all cases, rather than to the theory of granting an administrative board or even a legislative body the power to arbitrarily decide each case entirely within the discretion of the members of the administrative board of legislative body …”). ^{Back to text.}
21. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985).
22. Eskind v. City of Vero Beach, 159 So.2d 209, 211 (Fla.1963) (stating “Customarily, community attractiveness is accomplished by general zoning plans and related regulations which do not segregate selected businesses or activities for … discriminatory treatment. A regulation … must not impose discriminatory restrictions on the activities of a carefully selected business while permitting others similarly conditioned to engage in the prohibited activity”); Patch Enterprises v. McCall, 447 F.Supp 1075 (M.D. Florida 1978) (“Persons engaged in similar business activities must be treated without favoring any particular ones”). ^{Back to text.}
23. State v. Lee, 356 So. 2d 276, 279 (Fla. 1978). ^{Back to text.}
24. Dade County v. Nat’l Bulk Carriers, Inc., 450 So.2d 213, 216 (Fla. 1984); City of Wilton Manors v. Starling, 121 So.2d 172, 174 (Fla. 2d DCA 1960) (“In order to be upheld the ordinance must … be reasonable …); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“Although police powers of municipalities are sufficiently broad so as to control the use of property under a general zoning plan, the application of the plan must not be unreasonable …”) citing, in addition to National Bulk Carriers, Oka v. Cole, 145 So. 2d 233 (Fla. 1962) and Dade County v. Moore, 266 So. 2d 389 (Fla. 3d DCA 1972). ^{Back to text.}
25. Burritt v. Harris, 172 So.2d 820, 823 (Fla. 1965) (“The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power”); 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“The right of owners to devote their land to any legitimate use is properly within the terms of the United States Constitution and the legislature may not, under the guise of the police power, impose unnecessary or unreasonable restrictions on that use”), citing Prescott v. Charlotte County, 263 So. 2d 623 (Fla. 2d DCA 1972); William Murray Builders, Inc. v. City of Jacksonville, 254 So. 2d 364 (Fla. 1^st DCA 1971); and 7 Fla. Jur 2d Building, Zoning, and Land Controls § 157 (“An excessive restriction on the use of private property that does not contribute substantially to the public health, morals, safety, and welfare is arbitrary and unreasonable and thus, unconstitutional”) citing City of Boca Raton v. Boca Villas Corp., 371 So. 2d 154 (Fla. 4^th DCA 1979). ^{Back to text.}
26. City of Hollywood v. Hollywood, Inc., 432 So.2d 1332, 1336 (Fla. 4th DCA 1983). ^{Back to text.}
27. City of Miami Beach v. 8701 Collins Ave., Inc., 77 So.2d 428, 430-31 (Fla. 1954). ^{Back to text.}
28. Cleburne v. Cleburne Living Center, Inc., 473 US 432, 448 (1985) (One use cannot be regulated more restrictively than other uses with similar aspects unless the first use “would threaten legitimate interests of the [local government] in a way that other permitted uses … would not. … [M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating [one use] differently from [other similar uses]. … [The local government] may not avoid the strictures of [the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic. ‘Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ [citation omitted]”). ^{Back to text.}
29. Eskind v. City of Vero Beach, 159 So.2d 209, 212 (Fla.1963), (“When there is no reasonably identifiable rational relationship between the demands of the public welfare and the restraint upon private business, the latter will not be permitted to stand”); State v. Reeve, 139 So. 817, 820 (Fla. 1932), (“An individual has the right to pursue any trade, calling, or occupation, without restriction, which is not injurious to the public. The exercise of the police power for the regulation of any trade, occupation, or calling can be justified only on the ground of necessity for the health, safety, welfare, or comfort of society). ^{Back to text.}
30. Innkeepers Motor Lodge, Inc. v. City of New Smyrna Beach, 460 So.2d 379, 380 (Fla. 5th DCA 1984). ^{Back to text.}
31. Florida League of Cities, Inc. v. Dep’t of Envtl. Regulation, 603 So.2d 1363, 1368 (Fla. 1st DCA 1992). ^{Back to text.}
32. E.g., special exception uses in a district should have standards that mitigate the special exception issues or concerns to make the “possible” special exception use compatible with the permitted uses in the district, so all the uses allowed in the district work together for the same goal. ^{Back to text.}
33. State v. Harden, 938 So.2d 480, 485-86 (Fla. 2006) as to federal preemption. Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309, 314 (Fla. 2008) as to state preemption. ^{Back to text.}
34. E.g., Section 47 U.S.C. 332(c)(7) (of the Telecommunications Act of 1996, addressing local zoning review of wireless telecommunications facilities) and the Community Planning Act in Part II, Chapter 163 of the Florida Statutes. ^{Back to text.}
35.  E.g., standards that state “The structure must be appropriately located on the lot” without delineating what factors make it “appropriate” or “inappropriate;” decisions that are based on whether or not neighbors object to the request, making the neighbors’ variable opinions the controlling rule. ^{Back to text.}
36. N. Bay Vill. v. Blackwell, 88 So. 2d 524, 526 (Fla. 1956) (“The rule is well stated in Yokley on Zoning Law and Practice, Vol. 1, Section 62, as follows: ‘The general rule is that a zoning ordinance must prescribe definite standards and that neither the city council, the board of appeals created by ordinance or statute, nor the building inspector are properly vested with discretionary rights in granting building permits or variances in exception to the zoning ordinance unless there has been established a definite standard to guide them in the exercise of such powers’”). ^{Back to text.}
37. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999) (“While a local government may deny a development order based on a determination that a proposed development would be inconsistent with the stated goals of the locality’s comprehensive plan, [citation omitted], a local government may not deny a development order based on criteria which are not specifically enumerated in its land use regulations”), citing Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953); Effie, Inc. v. City of Ocala, 438 So.2d 506 (Fla. 5th DCA 1983); ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1^st DCA 1979); Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003) (“[Q]uasi-judicial boards cannot make decisions based on anything but the local criteria enacted to govern their actions”). ^{Back to text.}
38. Windward Marina, L.L.C. v. City of Destin, 743 So.2d 635, 638 (Fla. 1st DCA 1999); City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76 (Fla. 2d DCA 1974). ^{Back to text.}
39. One exception to the standards being required to be adopted in the LDRs is when the standard is found in the local comprehensive plan. As is addressed in the article Role of LDRs in Determining Consistency of Development Orders With the Comprehensive Plan, there are many problems with relying on standards within the comprehensive plan that are not also addressed in the LDRs (not the least of which is the fact that such an approach is arguably inconsistent with the intent of the 2011 version of section 163.3177(1), F.S., which indicates that the implementing standards are to be found in the LDRs, not the comprehensive plan itself), but, regardless, the comprehensive plan, as an ordinance adopted by the local legislative body, meets the “adopted in an ordinance” requirement. ^{Back to text.}
40. Askew v. Cross Key Waterways, 372 So. 2d 913, 924–25 (Fla. 1978) (The doctrine of nondelegation of legislative power “represents a recognition of the express limitation contained in the second sentence of Article II, Section 3 of our [State] Constitution. … Under this doctrine fundamental and primary policy decisions shall be made by members of the legislature who are elected to perform those tasks, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program.”); Sarasota County v. Barg, 302 So.2d 737, 742 (Fla. 1974) (“The determination of what conduct falls within the proscription of these ambiguous provisions is left to the unbridled discretion of those responsible for applying and enforcing the Act. This amounts to an unrestricted delegation of legislative authority, in violation of the Florida Constitution, Article II, Section 3, F.S.A.”); Smith v. Portante, 212 So. 2d 298, 299 (Fla. 1968) (“No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved . . . .”); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla. 1968). (“When a statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say What the law shall be …”). ^{Back to text.}
41. City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100, 1105 (Fla. 3d DCA 1983) (“[A]n ordinance which permits a legislative agency to totally disregard listed criteria and to base a decision upon unlisted or no criteria” is not constitutional), as cited in Friends of Great Southern, Inc. v. City of Hollywood ex rel. City Com’n, 964 So.2d 827, 831 (Fla. 4th DCA 2007). ^{Back to text.}
42. See We Could Play This Game Much Better If We Knew The Rules; Limited or “anything goes?” – Testimony evidence in a Florida quasi-judicial land use hearing. ^{Back to text.}
43. They would likely legally fail, but, whether challenged or not, would likely fail to achieve the jurisdiction’s adopted goals, because that isn’t what the regulations require. ^{Back to text.}
44. Drexel v. City of Miami Beach, 64 So. 2d 317, 319 (Fla. 1953); North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956). ^{Back to text.}
45. 811 So.2d 767 (Fla. 3^rd DCA 2002). ^{Back to text.}
46. 863 So.2d 195 (Fla. 2003). ^{Back to text.}
47. City of St. Petersburg v. Schweitzer, 297 So.2d 74, 76-78 (Fla. 2d DCA 1974). ^{Back to text.}
48. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 375, 377 (Fla. 3d DCA 2003). ^{Back to text.}

What is the “Subdivision of Land” Regulated by Florida LDRs?

Florida land development regulations (“LDRs”) are required to “regulate the subdivision of land” by §163.3202(2)(a) of the Florida Statutes. What does that mean?

In its simplest explanation, a subdivision of land is the division of a parcel into sub-parcels. So, in its simplest form, the regulations of the subdivision of land addressed in the LDRs would be regulations on any division of parcels. But do the LDRs have to address every parcel division?

It may help to have a little history. The Florida Statutes used to have extensive definitions of and requirements for subdividing and subdivisions, as part of the State zoning and subdivision enabling legislation. That changed in 1972 and further in 1985 when the State adopted the growth management acts, which shifted the focus from regulatory control through zoning codes and subdivision regulations to comprehensive planning and the implementing land development regulations (“LDRs”).

But the LDRs are still required by the Florida Statute to “regulate the subdivision of land.” There is amazingly little in the Florida Statutes to guide what that means, however, with even less State guidance now, with the deletion of the Chapter 9J-5 F.A.C. subdivision provisions in 2011. Consequently, there appears to be only one remaining definition directly addressing the subdivision or subdividing of land in the Florida Statutes,¹ and that is under the platting requirements (§177.031(18), F.S.).

If the only definition of the subdivision of land in the Florida Statutes is under the platting requirements, does that mean that the Florida Statutes consider subdividing to only include actions that fall under the platting requirements under chapter 177 and is that is the only “subdivision of land” the statutes require the LDRs to regulate? Possibly, but it may not be that simple.²

Looking specifically at that statutory definition of subdivision, it says a “subdivision” is “the division of land into three or more lots, parcels, tracts, tiers, blocks, sites, units, or any other division of land; and includes establishment of new streets and alleys, additions, and resubdivisions; and, when appropriate to the context, relates to the process of subdividing or to the lands or area subdivided.” §177.031(18), F.S. That seems simple – a subdivision is the division of land into three or more divisions.

But, what is the division of land into two parcels? If that is not a subdivision, what is it when someone divides land into two parcels, waits a month or a year, and then divides each of those two parcels into two more parcels, making a total of four parcels from the original parcel? Is that a subdivision?

Additionally, the definition says “and includes establishment of new streets and alley, additions, and resubdivisions.” Does that mean a division of land must include at least one of those to be a subdivision? The terms “additions and resubdivisions” seems to suggest that the term subdivision includes additions to subdivisions and re-division of the subdivision. But, since divisions to create streets and alleys would seem to be a type of division of the land, the “establishment of new streets and alleys” wouldn’t seem to need to be addressed separately, unless the wording was meant to require the presence of streets and alleys before the division of land is considered a subdivision under this definition. In other states, that is exactly what it means; the establishment of streets language has been held to mean that subdivision controls don’t apply to divisions of land without streets (e.g. fronting on a public road).³ So, perhaps the division of land has to include streets to be considered a subdivision under the platting definition.

Clearly, the statutory definition of subdivision under the platting requirements leaves some questions about what it means to regulate the subdivision of land. But there are indications elsewhere in the statutes, at least as far as the statutory minimum requirements of LDR subdivision regulation are concerned, that some of these questions are not going to be answered at the State level. Such indications are found in the statutory definitions of a “development order,” a “development permit” and “development.”

Subsection 163.3164(15), F.S., defines a “development order” as “any order granting denying, or granting with conditions an application for a development permit” and subsection (16) defines a “development permit” as including “any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” This means, for the subject discussion, that a development order is any decision on an application for a subdivision approval, with the inference that a subdivision approval is a type of official action of the local government that has the effect of authorizing the development of land. This seems to indicate that a subdivision approval authorizes “development.”

Section 380.04, F.S., defines “development,” in part, as “the dividing of land into three or more parcels.”⁴ This would indicate, therefore, that a subdivision approval is the authorization of the division of land into three or more parcels. This also matches part of the platting definition of subdivision.

Putting all this together, it appears that the statutes require that, at a minimum, LDRs regulate the division of land into three or more parcels.⁵ It may require more to plat a subdivision. But how those three parcels are determined to be created, what lands might be excepted from formal subdivision review, when and how the statutory platting requirements apply, and other issues related to those divisions appear to be largely left up to the local governments. See future articles on Platting and The Purpose of Subdivision Regulations for more on subdivision regulation issues.

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End Notes

¹There are a few definitions that include the word subdivision, but the definitions use the word without actually defining what a subdivision is.

² For example, a 1998 amendment to the chapter 177 definition of “subdivision” changed the definition from the phrase “the platting of land” to current phrase “the division of land.” That change arguably pulled the defined “subdivision” from only those associated with platting to include all divisions of land. But other provisions in the definition and chapter 177 seem to reunite the statutory subdivision with plats.

³Patricia E. Salkin, American Law of Zoning § 31:2 (5^th ed. 2010).

⁴ This part of the definition was completely overlooked (or ignored) in a rather strange recent case that found that a plat did not constitute a development order. Graves v City of Pompano Beach,___ So. 3d ___, 36 Fla. L. Weekly D778, 2011 WL 1376617, (Fla. 4^thDCA 2011). Although the substituted opinion, at 74 So. 3d 595, issued November 23, 2011, after rehearing, reversed and found that a plat does constitute a development order, based on the City’s ordinance and a liberal reading of the statutory definition of a development permit, it still did not recognize the subdivision/platting aspect of the definition of development.

⁵ Whether the local governments can go beyond the statute to regulate divisions of land into less than three parcels through the LDRs goes to the question of whether LDRs are limited to only regulating “development,” which is an issue for another article.

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.}

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’”).

Summary of some of the major changes to the Florida growth management statutes

The following is a summary of some of the major changes made by the 2011 Florida legislature to the state’s growth management laws. Most are from by HB 7207, which is now Chapter 2011-139, Laws of Florida.

• Name. The name of the part II, chapter 163 act is changed from the “Local Government Comprehensive Planning and Land Development Regulation Act” to the “Community Planning Act.” §163.3161(1), F.S. This reflects the shift from State oversight to local government control of the planning and growth management process. The State’s new role is to focus on “protecting the functions of important state resources and facilities.” §163.3161(3), F.S.

• Purpose. The Act’s purpose moves from “control future development” to “manage future development consistent with the proper role of local government.” §163.3161(2), F.S. A new purpose statement focuses on recognizing and protecting “the traditional economic base of the state, agriculture, tourism, and military presence” while also encouraging “economic diversification, workforce development, and community planning.” §163.3161(11), F.S. See also this Article for more on the purpose statements of the act.

• Comprehensive Plans and Plan Amendments.
1. Contents of Comprehensive Plans. The requirements for what a comprehensive plan must contain are substantially rewritten, but are not as completely different as they would appear to be. Much of what appears to be new language is language moved, with some modifications, from other sections or subsections or is from the rules of chapter 9J-5, Florida Administrative Code (which has been repealed). See the “Requirements for Florida comprehensive plans“ article for more details.
2. Plan Amendment Process. See the article “Process for review and adoption of plan amendments.”
   1. Twice a year limit. The limit restricting plan amendments to no more than twice a year is deleted. Previous §163.3187(1)(a), F.S.
   2. Expedited state review process. An expedited state review process, based on the previous §163.32465(2) pilot program, is added. This expedited process applies to all plan amendments except small scale amendment (which may be processed under this process or under the provisions of §163.3187) and plan amendments in an area of critical state concern, that propose a rural land stewardship area or a sector plan, that update the comprehensive plan based on a §163.3191 evaluation and appraisal, or that are for a new plan for a newly incorporated municipality. These other exceptions must follow the “State coordinated review process.” §163.3184(2) and (3), F.S. See the article “Process for review and adoption of plan amendments“ for more.
   3. Administrative challenges. The language of former §163.3184(9) and (10) is replaced by §163.3184(5), which is new language. The definition of an “affected person” did not change. See the article “Process for review and adoption of plan amendments“ for more.
   4. Compliance Agreements. The language of §163.3184(6)(a), F.S., is new, but borrows heavily from the previous §163.3184(16), F.S., it replaces.
   5. Small scale plan amendments. The provisions of §163.3187, F.S., are changed from directing how all plan amendments are process to just addressing the process for small scale plan amendments. See the article “Process for review and adoption of plan amendments“ for more.
3. Timing of Implementation. The local government’s comprehensive plan does not have to be amended to implement the new statutory requirements until the next evaluation and appraisal period, unless otherwise specifically required, but all new plan amendments must comply with the new requirements. §163.3161(12), F.S.
4. Evaluation and appraisal review. The “R” in the “EAR” process now stands for “Review” rather than “Report;” the new EARs process shifts the evaluation and appraisal process from a formal mandated audit report on the comprehensive plan, scrutinized by the state land planning agency, to a less formal review by the local government of whether changes are needed to meet state laws and to reflect the local assessment of needed changes. See the article “Evaluation and appraisal review“ for more.

• Concurrency. See the article “Concurrency“ for more details.
1. Premise of concurrency. The premise of concurrency is shifted away from an emphasis on public facilities being available concurrent with development to their being provided so as to achieve and maintain the adopted level of service standards.
2. Transportation facilities, schools, and parks and recreation. Concurrency for transportation facilities, schools, and parks and recreation is now optional; these facilities are removed as public facilities and services subject to the statutory concurrency requirements on a statewide basis. §163.3180(1), F.S. They may, however, be optionally included in a local government’s concurrency requirements, by the local government’s actions. §163.3180(1), F.S. To rescind any existing concurrency provisions on these now optional concurrency facilities requires a comprehensive plan amendment, but the amendment is not subject to state review. §163.3180(1)(a), F.S.

• Repeal of rules 9J-5 and 9J-11.023, Florida Administrative Code. The rules of chapter 9J-5 and §9J-11.023, Florida Administrative Code, are repealed and are to be removed from the Florida Administrative Code. §72, 2011-39 Laws of Florida (HB 7207). Some of the rules of chapter 9J-5 have been integrated into the new statute language.

• Planning Innovations. A new section, §163.3168, F.S., was added to address the concept of innovative planning techniques, which local governments are encouraged to apply. The techniques include addressing future new development areas through visioning, sector planning and rural land stewardship areas and, in urban areas, using urban service area designations, urban growth boundaries, and mixed-use, high density development concepts. §163.3168(2), F.S. See the article “Planning Innovations“ for more details.

• Sector Plans. The demonstration project “optional sector plan” process of §163.3245, F.S., is now a full scale option to DRI reviews for large acreage (at least 15,000 acres) projects, which can be initiated at the local level, rather than through an agreement with the state land planning agency. See the article “Sector Plans“ for more details.

• Rural land stewardship areas. Section 163.3248, F.S., is a new section created, in large part, from provisions in previous §163.3177(d).  See the article “Rural land stewardship areas“ for more details.

• Developments of Regional Impact (DRIs).
  1. DRI thresholds. The DRI “statewide guidelines and standards” thresholds changed for several uses. §380.0651(3), F.S.
  2. Substantial deviation thresholds. The thresholds for when a change to a previously approved DRI will constitute a substantial deviation were changed or deleted for several uses. §380.06(19)(b), F.S.
  3. Date extensions. At the developer’s option, all commencement, phase, buildout, and expiration dates for valid DRIs are extended for four years, regardless of any previous extensions. Associated mitigation requirements may also be extended in many situations. The developer must notify the local government in writing by December 31, 2011 to receive the extension. §380.06(19)(c)2., F.S.
  4. Exemptions from the DRI process.
     1. Two new exemptions were added: new, additions to, or expansions of solid mineral mines, if certain requirements are met, and any development in an energy economic zone designated by §377.809, F.S. §380.06(24)(t) and (w), F.S.
     2. Notwithstanding any agreements that say otherwise, any project no longer subject to DRI review under the revised thresholds is not required to undergo such a review. §380.06(24)(u), F.S.
     3. Significant changes were made to the exemption for dense urban land areas section. §380.06(29), F.S.

• Referendums prohibited. All initiatives or referendums on a development order or comprehensive plan amendment, not just those affecting five or fewer parcels, are prohibited. §163.3167(8), F.S.

• Public school interlocal agreements. No new language was added to §163.31777, F.S.; the process was significantly simplified. See the article “Public school interlocal agreements” for more details.

• Local government joint agreements. Section 163.3171(4), F.S., was amended to take the state land planning agency out of the joint agreement process (it cannot enter into joint agreements and is prohibited from interpreting, invalidating or declaring the joint agreements inoperative) and to expand the scope of joint agreements and what they can include.

• Permit extensions. 
1. Any permit or authorization that was extended under section 14 of chapter 2009-96, Laws of Florida (as reauthorized by section 47 of chapter 2010-147, Laws of Florida) is extended and renewed for an additional two year period, for a total of four years, if the holder of the permit notifies the authorizing agency in writing by December 31, 2011. §§ 73(1) and (3), 2011-39 Laws of Florida (HB 7207).
2. A separate permit extension was provided, “in recognition of 2011 real estate market conditions,” extending “any building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from January 1, 2012, through January 1, 2014,” and also “any local government-issued development order or building permit” (including certificates of levels of service), for a period of 2 years after its previously scheduled date of expiration. § 79(1), 2011-39 Laws of Florida (HB 7207). This extension is in addition to any existing permit extension, but cannot exceed four years total. (§ 79(1), 2011-39 Laws of Florida (HB 7207). To get this extension, the holder of such a permit or other authorization must notify the authorizing agency in writing by December 31, 2011. (§ 79(3), 2011-39 Laws of Florida (HB 7207)
3. There are many provisos and limitations on these extensions. See the article “Other, non-statute, provisions of HB 7207“ for more details.

Public Schools Interlocal Agreements (§163.31777, F.S.)

This is a summary review of §163.31777, as amended in 2011 (by Section 13 of Florida HB 7207). The review addresses the requirements for public school interlocal agreements.

In this review, the language of the statute may be summarized, paraphrased, re-ordered, and/or reformatted, so refer to the full language of the bill or the official Florida Statutes for the actual statutory provisions. See here, Public schools interlocal agreement, for an unofficial version of the language from the bill integrated into the previous statute provisions.

1. No new language is added to the section. It is significantly simplified.
   1. The first sentence of previous paragraph 163.31777(1)(a) remains the same – “The county and municipalities located within the geographic area of a school district shall enter into an interlocal agreement with the district school board which jointly establishes the specific ways in which the plans and processes of the district school board and the local governments are to be coordinated.”
   2. A middle sentence of previous paragraph 163.31777(1)(d) – “Local governments and the district school board in each school district are encouraged to adopt a single interlocal agreement to which all join as parties.” – is added to the new subsection (1) to complete that subsection.
   3. The list of items the interlocal agreement must address from previous subsection 163.31777(2), with a simplified introduction sentence, remains the same and comprise the remainder of the section.
2. The rest of the section is deleted.
   1. The requirement that school interlocal agreements be submitted to the state is eliminated. Accordingly, the submittal schedule and all language related to the state review is deleted. (§163.31777(1), F.S.)
   2. The previous §163.3177(1)(d), F.S., language, addressing interlocal agreements adopted before the adoption of the previous section, is deleted.
   3. The previous §163.3177(5), F.S., language, addressing amendments to public school elements transmitted before the adoption of the previous section, is deleted.
3. With the removal of the state review from the process, the process for sanctions and other enforcement mechanisms are also eliminated. There does not appear to be any penalty in this section for failure to prepare public school interlocal agreements or failure to prepare the agreement in compliance with the statute requirements.
4. The administrative proceedings option for affected parties to challenge the consistency of the interlocal agreement with the statutes is eliminated as a separate (and the exclusive) process.

Planning Innovations (§163.3168, F.S.)

This is a summary review of §163.3168, created by Section 8 of Florida 2011 HB 7207. The review addresses the concept of innovative planning. 

In this review, the language of the statute may be summarized, paraphrased, re-ordered, and/or reformatted, so refer to the full language of the bill or the official Florida Statutes for the actual statutory provisions. See here, Planning Innovations, for an unofficial version of the language from the bill.

1. Local governments are encouraged to apply innovative planning tools. (§163.3168(2), F.S.)
2. Innovative planning tools include:
   1. To address future new development areas (§163.3168(2), F.S.)
      1. visioning,
      2. sector planning, and
      3. rural land stewardship area designations;
   2. In urban areas (§163.3168(2), F.S.)
      1. urban service area designations,
      2. urban growth boundaries, and
      3. mixed-use, high- density development.
3. The state land planning agency is tasked with helping communities find creative solutions to fostering vibrant, healthy communities, while protecting the functions of important state resources and facilities. (§163.3168(3), F.S.)
   1. The state land planning agency and all other appropriate state and regional agencies may use various means to provide direct and indirect technical assistance within available resources. (§163.3168(3), F.S.)
   2. If plan amendments may adversely impact important state resources or facilities, upon request by the local government, the state land planning agency shall coordinate multi-agency assistance, if needed, in developing an amendment to minimize impacts on such resources or facilities. (§163.3168(3), F.S.)
   3. The state land planning agency will provide on its website guidance on the submittal and adoption of comprehensive plans, plan amendments, and land development regulations. The “guidance” may not be adopted as a rule and, accordingly, is exempt from §120.54(1)(a). (§163.3168(4), F.S.)

Other, non-statute, changes made by HB 7207

In addition to the many direct changes it makes to the Florida Statutes, HB 7207 makes several other significant changes. These changes include:

• Repeal of rules 9J-5 and 9J-11.023, Florida Administrative Code
• Permit extensions
• Addressing pending administrative or judicial proceedings under statute changes
• Existing voter referendum comprehensive plan amendments
• DoT report on calculation of proportionate share contribution
• House bill 7207 effective date

1. Rules 9J-5 and 9J-11.023, Florida Administrative Code, are repealed and are to be removed from the Florida Administrative Code. (§ 72, HB 7207)
2. Permit extensions. See here – Permit Extensions– for the bill language.
   1. Any permit or other authorization that was extended under section 14 of chapter 2009-96, Laws of Florida (as reauthorized by section 47 of chapter 2010-147, Laws of Florida) is extended and renewed for an additional period of 2 years after its previously scheduled expiration date. (§ 73(1), HB 7207)
      1. This extension is in addition to the 2-year permit extension provided under section 14 of chapter 2009-96, Laws of Florida. (§ 73(1), HB 7207)
      2. Permits that were extended by a total of 4 years pursuant to section 14 of chapter 2009-96, Laws of Florida and by section 46 of chapter 2010-147, Laws of Florida, cannot be further extended under this provision. (§ 73(1), HB 7207)
      3. The holder of a valid permit or other authorization that is eligible for the 2-year extension shall notify the authorizing agency in writing by December 31, 2011, identifying the specific authorization for which the holder intends to use the extension and the anticipated timeframe for acting on the authorization. (§ 73(3), HB 7207)