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HomeMy WebLinkAbout2006 08 02 Handout-Attorney's Office Quasi-Judicial Procedure PLANNING & ZONING BOARD MEETING - AUGUST 2, 2006 THIS DOCUMENT WAS FORWARDED FROM KATE LATORRE, ASSISTANT CITY ATTORNEY, BROWN, GARGANESE, WEISS & D' AGRESTA, P.A. TO BE GIVEN TO THE QUASI-JUDICIAL BOARDS. !:,'lh 0 1 2006 BROWN, GARGANESE, WEISS & D'AGRESTA,P:i\. 'j-~j ;::(;(: LF:. Attornrys at Law Debra S. Babb-Nutcher' Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta' Anthony A. Garganese' JW. Taylor Jeffrey S. Weiss Offices in Orlando, Kissimmee, Cocoa, Fr. Lauderdale & Tampa Scott J. Domstein Mitchell B. Haller Katherine W. Latorre Amy J. Pitsch Erin J. O'Leary Catherine D. Reischmann William E. Reischmann, Jr. Of Counsel 'Board Certified Civil Trial Lawyer 'Board Certified City. County & Local Governm ent Law QUASI-JUDICIAL PROCEDURE I. Quasi-Judicial Boards (Examples) A. Board of Adjustment B. Code Enforcement Board C. Planning and Zoning Board II. Quasi-Judicial Decisions A. Included: 1. Variances 2. Conditional Uses 3. Site-Specific Zoning Changes 4. Site-Specific Development Orders B. Not Included: 1. Comprehensive Rezoning 2. Comprehensive Plan Amendments Affecting Large Portion of Public III. Quasi-Judicial Decisions - What are they? A. Quasi-judicial actions result in an application of policy. B. Compare Legislative decisions, which result in the actual formation of policy. C. Generally, appointed boards usually perform quasi-judicial tasks; however, whetheran action is quasi-judicial depends on the nature of the action itself. IV. Due Process Requirements A. Due notice B. Fair opportunity to be heard in person and/or through counsel C. Right to present evidence D. Right to cross-examine adverse witnesses E. Right to be fully informed of all facts upon which the Board acts 225 East Robinson Street, Suite 660 . P.O. Box 2873 . Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 . Kissimmee (321) 402-0144 . Cocoa (866) 425-9566 . Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net . Email: firrn@orlandolaw.net Quasi-Judicial Procedure Page 2 V. Conduct of the Board A. Ex-Parte Communications Prohibited 1. All communications regarding Board business must occur at the public hearing. 2. Local policy prohibits Board mem bers, outside of the public hearing, from discussing Board business with interested parties, their representatives, lobbyists, other board m em bers, or any other third party. 3. Board members may discuss Board business with City Staff for the purpose of clarifying facts, but may not touch on the merits of the application. 4. Board members are prohibited from polling Board members to attempt in any way to arrive at a consensus. B. Personal Knowledge 1. Board members may depend on their own personal knowledge or experiences to decide a specific case, but if relying on personal knowledge or experiences, local policy requires Board members to recite as much on the record in order to provide the applicant an opportunity for rebuttal. 2. Site visits are not recommended unless all Board members participate in order to ensure uniformity with regard to the evidence being considered on a specific application. If Board members do visit a site, the record should reflect as much. C. Procedure 1. Board calls the specific case for hearing 2. Staff report and recommendation 3. Staff fields questions from Board mem bers 4. Applicant presents case, i.e., evidence to support application 5. Board asks questions of applicant 6. Open floor to public for questions and/or com ments 7. Close floor to public comments/questions 8. Additional questions from Board fielded by staff and applicant, if any 9. Applicant closing statement 10. Motion/Vote VI. Evidentiary Burden A. The initial burden is on the applicant to demonstrate that the petition or application complies with the procedural requirements of the law and satisfies all of the substantive requirements of the local ordinances for the particular type of relief sought. B. Upon such a showing, the burden shifts to the Board to demonstrate that the application did not meet such standards and that it is adverse to the public interest. VII. Basis of Board's Decision A. Com petent Substantial Evidence 1. Com petent substantial evidence is evidence. a reasonable mind would accept as adequate to support a conclusion, or legally sufficient evidence. Quasi-Judicial Procedure Page 3 2. The Board's findings and judgments are required to be supported by competent substantial evidence. 3. Decisions based entirely on opinions of non-experts are not supported by com petent substantial evidence. 4. Standing alone, opinions and objections of interested parties are not evidence and do not present a sound basis for denial of a petition or application. B. Written Findings of Fact 1. The Florida Supreme Court has notformally required that quasi-judicial decisions be accom panied by written findings of fact. 2. However, written findings of fact are recommended in order to ensure effective appellate review. C. Witness Testimony 1. Generally, the Board shall not consider the testimony of a witness unless the witness has personal knowledge of the facts the witness will testify to. 2. Layman witnesses may testify as to general factual matters; layman opinions are not admissible. 3. Expert witnesses may testify if the subject matter is proper for that expert because of som e scientific, technical, or other specialized skill the expert has that will help the Board understand the evidence being presented, or help to establish a fact in issue. D. Demonstrative Evidence May Be Considered E. Rules of Evidence Apply Loosely VIII. Appellate Review of Quasi-Judicial Decisions A. First-Tier Review 1. Certiorari review at Circuit Court level is a matter of right. 2. Scope of Review: a. Did the local government board depart from the essential requirements of law? b. Did the applicant receive procedural due process? c. Was there com petent substantial evidence to support the Board's decision? 3. The Circuit Court will look for evidentiary support from the record evidence. 4. The Circuit Court may NOT go outside of the record evidence during its review; information or evidence contrary to the local government decision is outside of the scope of inquiry. 5. Circuit Court may not "re-weig h" all of the pro's and con's of the conflicting evidence. fJ Quasi-Judicial Procedure Page 4 B. Second-Tier Review 1. Second-tier review at the District Court of Appeal (DCA) level is NOT a matter of right. 2. Scope of Review: a. Did the Circuit Court apply the correct law? b. Did the applicant receive procedural due process? 3. This second-tier review is simply another way of deciding whether the lower court departed from the essential requirements of the law, which amounts to a violation of a clearly established principle of law resulting in a miscarriage of justice. 4. The DCA is prohibited from reviewing the record evidence, therefore, the circuit court's final ruling in most first-tier cases is conclusive because second-tier review is so extraordinarily lim ited. IX. Miscellaneous A. All evidence must be placed on the record. B. All parties to provide testimony on the application must be duly sworn in.