Practice before local governments is always exciting. So is a train wreck. It is difficult to describe to the uninitiated the depth of emotion you feel when you are privileged enough to address a commission chamber packed with hundreds of residents, many clutching children, others in wheelchairs, who are loudly demanding that you and your merchant-of-death client be drawn and quartered in the courthouse square. It is enough to bring a tear to your eye. At times like that it is useful to remember that the commission before which you are appearing, which holds the power of life and death over your project, is composed of elected public officials who would not possibly put their political interests ahead of those of your client's medical waste incinerator. Would they? It is too late at that point to re-think your career. The state's attorney and the courts generally frown on bribery. Rather than fall back on your native cunning and instinct for survival, it is probably better to have brought your team of professionals, and your client, to this point with a firm grasp of the reality of the proceedings. Therefore, should the train wreck occur, you will be able to walk away from it and limp toward your appellate tribunal. What follows is our offering of ten tips, some legal, some practical, to see you through a quasi-judicial hearing.
TIP #1 - Know When You Are In A Quasi-Judicial Hearing This may seem so obvious as to not merit comment, but until very recently, there was great uncertainty in how to characterize some of the most fundamental of local government planning and zoning activities. 1. Quasi-Judicial vs. Legislative Decision Land use practice before local governments involves appearing before different boards, appointed and elected, which perform a variety of functions. These would include city and county commissions, boards of adjustment, architectural and appearance boards, planning and zoning boards and others depending upon how the local government has organized itself. The functions and decisions of these boards fall into two broad categories--quasi-judicial or legislative decisions. Stated most broadly, those actions which can be characterized as setting policy as opposed to implementing policy will be considered legislative. Decisions implementing an adopted policy would be considered quasi-judicial. The determination of which is a function of the type of approval the applicant is seeking. The more common types of approvals include:
The variety of approvals the practitioner faces is limited only by the imagination of the local government. Several of the most common will be discussed herein. The determination of the nature of the hearing (i.e., whether quasi-judicial or legislative) will govern preparation for and conduct of the hearing as well as the available judicial remedies. Fortunately, there are now several bright line rules in Florida to guide the practitioner. 2. Snyder The seminal case on the distinction between quasi-judicial and legislative decision making in Florida is Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993). The Snyder case involved an attempt to have the Brevard County Commission rezone a one-half acre parcel from general use to a medium density multi-family residential category. The request was unpopular and a large number of citizens objected based on the character of the neighborhood, lack of need for multi-family housing and generalized traffic and parking concerns. The county commission denied the application. The landowner petitioned for writ of certiorari in the Circuit Court, which ruled in favor of the county. The landowner thereafter appealed to the Fifth District Court of Appeal, which wrote an exhaustive opinion reversing the Circuit Court. The Supreme Court took the case on conflict grounds, agreed in large measure with the Fifth District Court of Appeal and quashed the decision below. A number of important principles emerged from the Supreme Court's opinion.
Enactments of original zoning ordinances have always been considered legislative. Gulf & Eastern Development Corp. v. City of Ft. Lauderdale, 354 So.2d 57 (Fla. 1978). Passage of an amending zoning ordinance involving a large area is also a legislative decision. Schauer v. City of Miami Beach, 112 So.2d 838 (Fla. 1959). In approaching the question of site specific rezoning, the Snyder court, quoting the Fifth District Court of Appeal, approved the following proposition:
Because such a request is quasi-judicial, a local government is not free simply to deny it by articulating a rational basis for the denial. The Snyder court stated the burdens as follows:
3. Yusem While Snyder answered the question concerning site specific rezonings, it triggered a raging debate on the question of whether a site specific or small scale comprehensive plan amendment is legislative or quasi-judicial. Some pre- and post-Snyder decisions determined that a small scale comprehensive plan amendment was legislative. See, Rinker Materials Corp. v. Dade County, 528 So.2d 904 (Fla. 3rd DCA 1987); Section 28 Partnership, Ltd. v. Martin County, 642 So.2d 609, (Fla. 4th DCA 1994), review denied 654 So.2d 920 (Fla. 1995); Board of County Commissioners v. Karp, 662 So.2d 718 (Fla. 2nd DCA 1995). Other courts took the position that such a plan amendment was quasi-judicial. See, Florida Institute of Technology v. Martin County, 641 So.2d 898 (Fla. 4th DCA 1994), review denied, 651 So.2d 1195 (Fla. 1995); Battaglia Properties v. Land and Water Adjudicatory Commission, 629 So.2d 161 (Fla. 5th DCA 1993); Martin County v. Yusem, 664 So.2d 976 (Fla. 4th DCA 1995). Given the uncertainty in the area, the Fourth DCA certified the following question to the Supreme Court in Martin County v. Yusem:
The Florida Supreme Court answered the question in Martin County v. Yusem, 690 So.2d 1288 (Fla. 1997), in the negative and held that amendments to a comprehensive land use plan which was adopted pursuant to Chapter 163, Florida Statutes, are legislative decisions subject to the "fairly debatable" standard of review. Yusem, 697 So.2d at 1289.
Room for controversy concerning comprehensive plan amendments continues to exist, however. The Yusem court noted that in 1995, Section 163.3187(1)(c), Florida Statutes, was amended, providing special treatment for comprehensive plan amendments directly related to proposed small-scale development activities. "We do not make any findings concerning the appropriate standard of review for these small-scale development activities." Id. at 1293, n.6. Following the rationale of Snyder, decisions concerning variances, conditional uses, site plan approval, building permits and other development orders would be quasi-judicial in nature and subject to certiorari review by the courts. See, e.g., Park of Commerce Associates v. City of Delray Beach, 636 So.2d 12 (Fla. 1994); Jennings v. Dade County, 589 So.2d 1337 (Fla. 3rd DCA 1991), review denied 598 So.2d 75 (Fla. 1992); City of Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983); Irvine v. Duval County Planning Commission, 495 So.2d 167 (Fla. 1986).
TIP #2 - Know the Standard of Review 1. Legislative Decisions Actions of local government which are legislative in nature are subject to review under the fairly debatable test. Snyder, supra; Nance v. Town of Indialantic, 419 So.2d 1041, (Fla. 1982). The fairly debatable standard is a very deferential standard and requires the reviewing court to affirm the local government action as long as a reasonable basis exists to support the action. The reviewing court is not free to second guess the wisdom (or foolishness) of the local government's action and must affirm if there are no constitutional violations and any reasonable basis for the decision can be shown. Nance, supra. An action to challenge the legislative determination of a local government is brought as an original action in Circuit Court. Hirt v. Polk County Board of County Commissioners, 578 So.2d 415 (Fla. 2nd DCA 1991). 2. Quasi-Judicial Decisions Decisions of a board acting in a quasi-judicial capacity are subject to review by certiorari. Snyder, supra; DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957). A Circuit Court scope of review in certiorari is very narrow and is limited to:
Education Development Center, Inc. v. City of West Palm Beach, 541 So.2d 106, 108 (Fla. 1989). Each of these three points will be discussed below as they each have distinct practice implications for the local land use practitioner. In certiorari review, the Circuit Court functions as an appellate court and is not entitled to reweigh the evidence or substitute its judgment for that of the agency. Lee County v. Morales, 557 So.2d 652 (Fla. 2nd DCA 1990); Bell v. City of Sarasota, 371 So.2d 525 (Fla. 2nd DCA 1979). The most important practical effect of this is that the record for the court must be made before the local government. Unlike review of a legislative decision, where a de novo hearing is allowed, the Circuit Court reviewing a quasi-judicial decision must rule based upon the record developed below. In other words, the full panoply of due process and evidentiary concerns attendant to a trial before a judge (who is presumably qualified to deal with them) have now been removed to the arena of local government, where the presiding officers are political rather than judicial. This conversion of a political body into a judicial one has some odd ramifications, one of which is the topic of the next tip.
TIP #3 - Know The Jennings Rule of the Jurisdiction The so-called Jennings Rule comes from the decision in Jennings v. Dade County, 589 So.2d 1337 (Fla. 3rd DCA 1991), review denied 598 So.2d 75 (Fla. 1992). That case involved a request for a variance which was ultimately approved by the Zoning Appeals Board and the Metro Dade County Commission. Subsequent to the County Commission hearing, Jennings, a neighbor to the property which received the variance, found that a lobbyist for the variance applicant had personally visited the county commissioners on an individual basis. Jennings claimed that because the nature of the proceeding was quasi-judicial; the Zoning Appeals Board and the County Commission were in effect functioning as judges. Jennings claimed that the ex parte communications of the lobbyist with the individual judges or commissioners deprived him of his state and federal constitutional due process rights to a fair, impartial hearing. The Third District Court of Appeals agreed and held that once an ex parte communication is proved, a presumption arises that the contact is prejudicial. The complaining party will automatically be entitled to reversal of the local government decision and a new hearing must be held unless it is proven that the communication was not actually prejudicial. This decision created chaos at the local government level. The entire range of quasi-judicial decisions (site specific rezonings, conditional use, variances, site plan approvals, and the like) were subject to the rule as were both appointed and elected officials. While some local government officials might have been grateful that they were no longer subject to badgering from all sides concerning upcoming planning or zoning decisions, most local government officials found it offensive that they could no longer talk to their constituents about zoning and related issues. Local government attorneys took a variety of approaches to the prohibition, in some cases suggesting that the decision maker could not discuss the matter with the local government's own planners and staff or even review mail from constituents prior to the hearing. 1. Section 286.0115(1), Florida Statutes Attempts to address this problem have been two-fold. In 1995, the legislature took the first step to cure the perceived problem by adopting Chapter 95-352, Laws of Florida. That law created section 286.0115, Florida Statutes, which allowed a county or municipality, by ordinance or resolution, to remove the presumption of prejudice from ex parte communications. It provides in pertinent part:
. . .
Section 286.0115(1), Florida Statutes. The procedures enumerated in that section include disclosure by the public official of the substance of any communication and the identity of the person communicating, before final action on the matter. The section also provides that the public official may read written communications, conduct site visits and the like so long as the fact is disclosed prior to final action on the matter.
2. Section 286.0115(2), Florida Statutes Apparently not satisfied with merely removing the presumption of prejudice arising from ex parte communications, the legislature, by Chapter 96-324, Laws of Florida in 1996 took the further step of allowing a local government to essentially remove itself from a quasi-judicial posture in the conduct of its hearings. That chapter created section 286.0115(2), Florida Statutes. It provides that notwithstanding the ability of local government to adopt a "removal of presumption" ordinance described above, a local government could adopt an ordinance identical to that statutory section, which even further removed the strictures inherent in a quasi- judicial hearing. For purposes of this discussion, this type of ordinance will be referred to as a "we don't care" ordinance. Section 286.0115(2)(b) provides generally that in a quasi-judicial proceeding anyone who appears before the governing body who is not a party will be allowed to testify and may be asked to respond to questions, but need not be sworn, is not required to be subject to cross examination and is not required to be qualified as an expert witness. A party or party intervenor to such a proceeding must, upon request by another party, be sworn as a witness, shall be subject to cross examination and shall be required to be qualified as an expert witness, as appropriate. Subsection (c) of that section provides that in a quasi-judicial proceeding, a person may not be precluded from communicating with the governing body by application of ex parte communication prohibitions. Disclosure of any such communication is not required and that non-disclosure is not presumed prejudicial. It goes on to provide that a decision of the local government in a quasi-judicial proceeding must be supported by substantial competent evidence in the record pertinent to the proceeding, irrespective of any such communications. These procedures do not apply unless the local government has adopted an ordinance or resolution establishing those procedures pursuant to section 286.0115(2)(a), Florida Statutes. Nothing in that section requires a local government to adopt such an ordinance or resolution. Finally, section 286.0115(3), Florida Statutes, affirms that that section does not restrict the authority of any board of commission to establish rules or procedures governing public hearings or contact with local public officials, whatever that means. This will be referred to as a "none of the above" procedure. The import of all of this is that whether operating strictly under Jennings in the absence of an ordinance or resolution, under a "removal of presumption" ordinance (§ 286.0115(1), Fla. Stat.), under a "we don't care" ordinance (§ 286.0115(2), Fla. Stat.) or even under a "none of the above" procedure (§ 286.0115(3), Fla. Stat.) there is no uniform course of conduct for the local government practitioner when engaged in a quasi-judicial hearing. Given that the entire premise of a quasi-judicial hearing and the protection afforded it stem from constitutional concerns of due process, it is reasonable to inquire how the legislature or a local government could by statute, ordinance or resolution eliminate the problem. The Supreme Court has not yet answered that question and in the meantime we are stuck with the current landscape. It is imperative, therefore, that the practitioner determine which Jennings scenario applies in the affected jurisdiction. An interesting issue which is becoming apparent given the ability to waive Jennings rule requirements has to do with local government officials who are meeting with constituents, taking a position on a prospective quasi-judicial matter, and then disclosing the communication at hearing. That is not remarkable, given the legislative grace which has been attached, but what if the local government official communicates a decision on the issue prior to the taking of any evidence? If a decision is supposed to be made based upon the evidence presented at the hearing then due process requires that the decision not be made in advance of that hearing. Courts have agreed. Huntley's Jiffy Stores, Inc. v. Brevard County, Case No. 90-12261-AP (18th Cir. Ct. 1991); ABC Ventures, Inc. v. Board of County Commissioners of Brevard County, Case No. 95-8041-AP (Fla. 18th Cir. Ct. January 1996).
TIP #4 - Know the Notice Requirements This tip is a corollary of the first prong of the standard of review in certiorari: whether procedural due process was accorded. While there are some statutory requirements concerning notice attendant to certain types of local government actions, the practitioner should determine whether any particular notice requirements attach in the affected jurisdiction. Comprehensive plan adoption and amendment is subject to specific notice and hearing requirements set out in Section 163.3184, Florida Statutes. As these actions are always legislative in nature, they will not be considered further here. Local government ordinance adoption procedures are governed by Sections 125.66 and 166.041, Florida Statutes, for counties and cities, respectively. Each of these sections establish minimum notice provisions. Section 125.66(6), Section 166.041(8), Florida Statutes. Ordinance adoption procedures differ between a city and a county in the number of hearings required. For a county, the commission may enact any ordinance at a regular or special meeting provided notice of intent to consider such an ordinance as been given at least ten days prior to the meeting by publication in a newspaper of general circulation in the county. Section 125.66(2)(a), Florida Statutes. For a city, a proposed ordinance must be read by title or in full on at least two separate days and shall also have been noticed once in a newspaper of general circulation at least ten days prior to adoption. Section 166.041(3)(a), Florida Statutes. etitions to rezone which change the actual zoning map designation on the parcels of land, initiated by other than the local government, are enacted pursuant to the regular ordinance enactment procedure. Section 125.66(4) and Section 166.041(3)(c), Florida Statutes. An alternative procedure is provided for ordinances or resolutions which change the actual list of permitted, conditional or prohibited uses within a zoning category or for ordinances or resolutions initiated by the local government itself. Section 125.66(4) and Section 166.041(3)(c), Florida Statutes. Bear in mind that these statutory requirements are the minimal notice requirements which must be met and that they apply only to the county commission or city council itself. Depending on jurisdiction, a variety of preliminary review bodies, such as a development review committee or planning advisory board, may be involved in consideration of the request before it reaches the final decision making body. Each of these will have its own notice requirements. Local governments have adopted a variety of additional notice requirements in an effort to inform (some would argue, inflame) the public about prospective zoning approvals, conditional uses and the like. These may include the placement of signs or other physical notices on the property affected informing the public of the action and the time and place that hearings will be held. Some jurisdictions require signs of a certain size and color, or provide the signs themselves. Others require photographic evidence that the posting has been accomplished. Some jurisdictions handle the posting themselves. Given the variety of potential notice difficulties, the practitioner should very early in the process determine which notice requirements apply, confirm that understanding with the local government and determine who is responsible for each step of the process. There is nothing worse than arriving at a public hearing only to determine that the City Clerk has failed to publish a required notice. Even if the responsibility for some step in the notice process devolves upon the local government, the practitioner should monitor each step of the process to assure that it has been completed pursuant to the applicable statute or ordinance.
TIP #5 - Know Your Substantive Burden This tip is a corollary of the second prong of certiorari review: whether the essential requirements of law have been observed. The substantive burden will be a function of the type of proceeding in which you are involved. As the Snyder court made clear, a landowner seeking to rezone property has the burden of proving that the proposal is consistent with the comprehensive plan and complies with all of the procedural requirements of the zoning ordinance. Understanding what must be shown will dictate which experts you need at the hearing and the type of testimony which must be adduced. Conversely, the substantive burden determines what is irrelevant to the proceeding. If you are required to demonstrate X, Y and Z in order to have your petition approved, evidence concerning A, B and C is simply irrelevant to the proceeding. If the local government makes a decision on the basis of A, B and C, you would argue to your appellate tribunal that the local government has departed from the essential requirements of law. It is, of course, unrealistic to expect a local government decision-making body to function so like a judge that it would make rulings on relevance during the course of a quasi-judicial hearing. The nature of these proceedings is such that if you have an unpopular project, you are likely to attract a host of opponents (typically nearby landowners) who will want to talk about everything except the substantive standard you must meet. It is not advisable to tell the local government that these people are simply irrelevant, immaterial and useless to the issue because they are voters. While the local government may entertain such utterances, the courts fortunately do not. The only evidence which counts in a proceeding is that bearing on factors set out in the ordinance. City of Naples v. Central Plaza, 303 So. 2d 423 (Fla. 2d DCA 1974). Concerning popular sentiment, other courts have observed:
City of Apopka v. Orange County, 299 So. 2d 657, 659 (Fla. 4th DCA 1974) (quoting Anderson, American Law of Zoning). See also, Conetta v. City of Sarasota, 400 So. 2d 1051 (Fla. 2d DCA 1981); Pollard v. Palm Beach County, 560 So. 2d 1358 (Fla. 4th DCA 1990). Whether involved in a rezoning or any of the other procedures requiring approval at a quasi-judicial hearing such as a conditional use/special exception, variance, site plan approval or even a building permit, the practitioner should analyze the applicable ordinance and be prepared to offer proof, and to cross-examine if necessary, on the substantive standards set up in the ordinance.
TIP #6 - Know How to Create a Record This tip is a corollary of the third prong of the standard of review in certiorari: whether the administrative findings are supported by competent substantial evidence. Competent substantial evidence is defined as evidence a reasonable mind would accept as adequate to support a conclusion. Town of Indialantic v. Nance, 400 So. 2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So. 2d 1041 (Fla. 1982). As the applicant, the burden is always on you to demonstrate your client's entitlement to the action you have sought. Remember that in certiorari, the Circuit Court will base its decision on the record you develop. But, what exactly is "the record" in an administrative proceeding? Is it only what is said and done in person before the City or County Commission or does it go all the way back to the original piece of paper, the application you filed? It is a rare local government which will take action on a matter by reasoning its way forward from the application and supporting materials to a conclusion at the public hearing. As an evidentiary matter, you need to be sure the application and the supporting materials are formally part of the record. One way to do this is to simply offer the application and all of the supporting materials into the record, on the record. The reviewing court will then be able to tell from the transcript what has occurred. Alternately, if you have the cooperation of the local government in preparing the resolution which will actually be voted on, you can recite the application and the various submittals as factual findings in the body of the resolution. You will, of course, be proving up your entitlement to whatever action you are requesting at the hearing itself, but it is important not to forget this very basic step. You want to control what the record will look like for any reviewing court. If your jurisdiction is like most, by the time your application is acted on, the file will resemble an overly cluttered desk. In addition to your application and various submittals, there may be scandalous and impertinent communications from opponents to your project, communications between your government and others concerning ways to frustrate your project and bankrupt your client, staff analyses both pro and con, doodles and who knows what else. You may well want all this material in front of a judge, but then again, you might not. What this suggests is that you should know what is in that file before you simply trust fate to have it made part of the record. As you get into the live part of your presentation, it is your job, as ringmaster, to keep the show going. You know your substantive burden and you will have arrived at the hearing with witnesses, fact or expert, to address that burden. Tell the local government what the applicable standard and your burden is and then proceed to meet them. The local government attorney may not have instructed the board and the board may not want to hear it, but a reviewing court will appreciate the road map as it proceeds through the transcript. Remember, any utterances from your mouth as the lawyer are not evidence; all necessary facts and conclusions must come from your witnesses. This discussion has assumed that you will be able to present your case and your witnesses as you have scripted. The real world doesn't always work that way. The circus analogy is an apt one. You as the ringmaster are trying to get all of the acts to come off at one time without disruption or delay. The typical local government quasi-judicial hearing, particularly on a controversial project, is anything but linear. The stands will be packed with hecklers and the room will contain the usual assortment of clowns and sideshow freaks. None of these people have your best interests at heart. Indeed, the local government body itself may be hostile. It is never safe to assume that any body of elected officials will put aside political concerns and view an application with the disinterested air of a judge simply because the courts have determined that they must function in a quasi-judicial capacity. Many of them resent being placed in such a position. Some of the elected officials will already have clearly formed opinions, either pro or con, that will motivate their behavior. If they articulate that position prior to taking any evidence on the matter, you have a ready made due process deprivation for the reviewing court. Most, however, will not be so obvious. The more clever elected officials will simply try, through interruptions, speeches, lines of irrelevant questioning and other means to disrupt your presentation to the extent that you do not make a complete or adequate record. Be prepared for this. Always be prepared to remind the local government that due process requires that you have a fair opportunity to present your case. Be prepared to object on the record should you not be given that chance and, if it comes to that, proffer the evidence. This all seems very formalistic for a local government hearing, but remember that a judge will be reviewing the record. A variety of other evidentiary issues come into play at the hearing. The swearing of witnesses is one example. You should know in advance how your jurisdiction handles this issue. Some jurisdictions simply swear the entire room at the beginning of a public hearing and let it go at that. Hearings may last a long time and people come and go, so by the time your item is up, you don't know if everyone in the room has in fact been sworn. If they are going to speak to your item, you should have them sworn at the time they do so. And, of course, you should always have a court reporter. If you are in a jurisdiction which has adopted a "we don't care" ordinance, then non-parties need not be sworn. That someone would claim to be a non-party in order to avoid being sworn seems an admission that they do not have standing. We are looking forward to a case which decides that issue. Another evidentiary issue is the presentation of objections. It is unrealistic to expect local government elected officials or even the local government attorney to rule on objections if you make them. The most common objections would tend toward relevance and hearsay and almost always be directed to the comments of citizens who appear. In order to avoid having to leap up and object continuously, a standing objection should be urged. If the local government gives you a chance to wrap up in response to opposition comments, you can address the objection again at that point. If you have organized, financed opposition or a hostile local government, you will need to pay closer attention to the objections issue. Evidentiary objections directed to staff or witnesses engaged by your opposition should be articulated specifically. That doesn't mean that you need to interrupt them in the middle of their presentation, but you will want the record to reflect clearly what your objection is directed to. Examination and cross-examination of witnesses present another illustration of where judicial processes and local government decision-making don't exactly mesh. Unless you need to elicit some specific fact or opinion from your own experts, in response or rebuttal to issues raised by your opposition or the local government, it is probably better to allow your evidence to be presented in narrative form, after you have offered the credentials of your experts. This assumes a high level of preparation which will be the subject of discussion below. Cross-examination should be used sparingly. Because you have no opportunity for discovery, you will inevitably be surprised by the testimony of other witnesses. Where that testimony does not bear on any of the standards or criteria which are properly part of the proceeding, simply let it go. Where it does bear on something which is properly in issue, you may need to address it. For example, if you are going before the commission with a negative staff recommendation which you believe is flawed, it may be necessary to examine staff on the merits of their position. You certainly won't win any friends, but at that point you are playing to the Circuit Court anyway. If your opposition comes up with some "expert", some examination may be necessary. If they neglect to enter their qualifications into the records, let it go, otherwise, use your experts to build a cross-examination. Another evidentiary concern which points up the difference between local government decision-making and judicial decision-making has to do with the exclusion of witnesses. We have never seen a local government hearing where any witnesses have been excluded. In a judicial proceeding, the rule could be invoked so that witnesses don't get to listen to other witnesses' testimony and tailor their own.
TIP #7 - Know the Ground Rules of Your Jurisdiction To best prepare for the quasi-judicial hearing which will ultimately result from your application, you have to understand your jurisdiction's ground rules in processing and presenting your request. You should be able to advise your client at any step in the process of where the application is, who has jurisdiction over it in the sense of responsibility for it, what their substantive functional role is, where the application goes next and when it will get there. Local governments vary tremendously in the availability of resources and in the processes they use to act on an application and each presents unique opportunities for the practitioner to assist in the process or to be aware of adverse action.
1. Before You Apply
Once you determine that your client needs something from local government and you think you know what it is and how to get it, it is very useful to have a preapplication meeting with staff to discuss the matter. This is a very common practice in the DRI and environmental permitting arenas but is not as widely practiced in other local government land use decision-making. Before you waste everybody's time on a preapplication meeting, determine from your perspective what the issues are so that you can have the appropriate people from your side in attendance. You should discuss with local government staff who the appropriate personnel would be from government to attend. At the preapplication meeting, you should attempt to secure from staff an understanding of how the application will move through the approval process. You should have staff confirm what standards and criteria are in play, what is relevant or not to those criteria, what role staff plays in presentation of the item at hearing, what resources the local government has available and what notice requirements are in place and whose responsibility it is to satisfy them. This level of understanding will make your task much easier later in the process.
2. The Application is Filed
Having laid the groundwork with staff, you are now free to file the application. Do not assume that from that point the process is self-executing. Having arrived at an understanding with staff about the process, you should actively monitor it to assure it is going according to plan. This applies to the substantive analysis as well as the procedural aspects of the request. Staff may request further information or ask questions that should be addressed promptly. Staff will be formulating their recommendation for approval or denial, which may come with conditions. If conditions are attached, you must determine whether they are rationally related to the request and the cost of compliance. If they are rationally related what will it cost your client to comply. If you determine that the conditions are not rationally related to the request you are faced with the decision of going over or around staff to appeal directly to higher policy makers or the elected officials directly. It is important therefore, that you understand the Jennings rule of your jurisdiction very early in the process. The earlier you can determine what position staff will be taking with respect to your application and any conditions which may attach, the better your opportunity to respond or react accordingly.
3. Staff Recommendation of Approval
Having done all of your good work and going forward with a recommendation of approval (with conditions which are financially acceptable to your client) you might be tempted to relax. That would be a mistake. Other considerations come into play: for example, whether or not you have third party opposition to your request. If you do, you need to make some decisions about how to address that. This may include simply talking to the opposition. It often happens that opposition to a project is based not upon any factual information but upon rumors or lack of good information. It may be that you can solve this problem simply by communicating and save yourself and your client a lot of trouble at the hearing. If the opposition is unknown, in the sense that they are not a traditional or a historical foe or well organized group with a clear agenda, it is always worth talking to them to better understand what you might be facing at the hearing. You may or may not convince them to drop their opposition, but you will be better prepared as a result. Whether you have third party opposition or not you should always talk to members of the board who will be making the ultimate decision, assuming the Jennings rule of the jurisdiction will allow you to do so. If staff is recommending approval and you have some opposition, you want to educate the board before the opposition does. If staff is recommending approval and you have no known opposition, you will still want to talk to some members of the board who have either subject matter or geographical interest in your request.
4. Staff Recommendation for Denial
Despite all your good work, staff cannot see its way clear to embrace your request and has drafted a recommendation of denial. The denial will be based upon some perceived defect which you must understand clearly in order to advise your client. Some defects can be cured and your client must decide whether the cost of that cure is worth proceeding. If the defect does not appear to be curable or your client is unwilling to do so, then you are faced with two simple choices: either abandon your application or proceed to trial (public hearing). Now would be a good time to go talk to the judge (elected officials) if the Jennings rule of your jurisdiction will permit that. Even with a recommendation of denial there will likely be matters of fact and law upon which you and staff agree. You should attempt to identify where those points are and stipulate to them. This will allow you to focus on those matters which are truly in dispute at the hearing more efficiently. If you are proceeding forward with a recommendation of denial, it is even more critical then usual to address the record issues. To the extent you are able, you should agree with staff on what actually constitutes the record of their deliberation to that point. If necessary, you should be prepared to supplement it at or prior to hearing. As an administrative matter, you should understand who has custody of the record and how it will be presented and preserved. If you must petition for certiorari, it is your job as petitioner to ensure that the record is prepared and transmitted to the reviewing court. Fla. R. App. P. 9.200(e).
TIP #8 - Know the Local Government Attorney Other than yourself, the person who will be having the most fun with a quasi-judicial hearing will be the local government attorneys. Their role and function at the hearing may vary tremendously, depending upon the resources of the jurisdiction. Many small local governments do not themselves employee an attorney but contract out for those services to a particular practitioner in that jurisdiction. Larger cities and counties may have scores of attorneys, each of whom specializes in a given area. In such a jurisdiction, even if you have attorneys assigned to the land use area, they may be further specialized, depending upon which board they are assigned to, whether planning or zoning, development review committee or city or county commission itself. The variety of local governments gives rise to another interesting phenomenon. Sometimes the local government is divided within itself. In some jurisdictions, the local government attorney works for the board and in others works for staff. If you have a strong mayor type of government or an equivalent, both the Mayor and the commission may each have an attorney. It is important, therefore, to identify early on the local government attorney who will be advising staff and/or the board as your petition moves through the process. As discussed above, there are many opportunities of contact and cooperation with the local government and its attorney as your petition moves from application to hearing. A number of the issues raised above concerning standards, criteria, burdens, evidence and other due process concerns are properly the providence of the local government attorney who should be advising staff on these matters. If the local government attorney is not in agreement with you on these most fundamental of matters, your life can become extremely difficult. As with staff, it is important to get an understanding with the local government attorney early in the process on these matters so that you can address them in your planning. If you practice enough in a particular jurisdiction, you won't have to do this every time, but if you are appearing for the first time in a particular jurisdiction, it is critical to get this understanding. The role of local government attorneys at the hearing itself varies tremendously. In some jurisdictions, staff and/or the attorney play no active role whatsoever and rely upon the applicant to present the item and carry the hearing. In other jurisdictions, they will take a very active role in presenting the government's position. In any event, you should understand what role they will play at the hearing and to the extent possible, what they will actually say. The local government attorney will typically review the agenda items and you should too, so that if you have any disagreements about the presentation, you can address them in advance of the hearing.
TIP #9 - Know Your Lines
While the local government quasi-judicial hearing is less formal in many respects than a trial, in one critical aspect it is the same. The reviewing court will be working from a cold record and everything you need to support your petition must be in it. It is critical, therefore, that you prepare your clients and your witnesses as though you are proceeding to trial. You know your substantive burden, the strength and weaknesses of your position and your likely opposition. You also know that any hearing before a local government body can quickly devolve into a circus or lynch mob and you should anticipate that by making sure that your witnesses are prepared and your presentation is disciplined. You will already know from your discussions with the local government staff and attorney how the presentation will proceed in terms of time and organization and you must manage your team accordingly. In short, it pays to rehearse the presentation. You do not want your witnesses to ad lib their way through the presentation. The most effective extemporaneous remarks are those which are rehearsed multiple times before a mirror. Finally, you should know your room. If you are going to show up with presentation boards, you should know whether there is an easel available and whether it can be placed so that it can be seen. We have too often seen applicants arrive with some type of audio-visual presentation only to find that the physical constraints of the room or the facility will not accommodate them. If it appears as though your presentation has been choreographed by the three stooges, you will find that your credibility suffers.
TIP #10 - Know the Nearest Friendly Watering Hole
After all of your good work, research, preparation, hand holding, rehearsal and presentation, you will need a place to either celebrate or lick your wounds. Identify it in advance of the hearing. Make reservations.
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Top Ten Tips for
Quasi-Judicial Hearings