What you need to know prior to a Rezoning, Variance or other local government public hearing

In Florida, there are two types of hearings that a local government can have. Both of those decisions carry different standards of review and different methods of conducting these hearings. These hearing types are legislative and quasi judicial.

It is important to note that the form of the local governmental decision does not control whether it is legislative or quasi judicial. It is the substance of the decision that controls what standard is applied to review of the decision. The seminal case that cleared up this area of Land Use and Local Government law originated right here in Brevard County, Florida, Board of County Commissioners of Brevard County v. Snyder, 627 So. 2d 469 (1993).

Legislative

Legislative decisions of a county or city are those that are broad policy application. Most of the time creating an ordinance or a comprehensive plan or a policy of the city or county would be a legislative decision. Here, the decision does not have to be based on evidence. The decision of the city or county just must be fairly debatable. Virtually everything will pass through this standard as intelligent minds can disagree on many different policy items.

Additionally, these legislative items can be challenged through a lawsuit filed in circuit court. However, as mentioned above, the standard of review on the decision is fairly debatable. Although, there may be other avenues to challenge this action.

Quasi-Judicial

Quasi judicial action of a local government is much more like a hearing in a court of law than a legislative decision. Decisions that are subject to this type of review include singular property rezoning, variances, and other action that is a policy application rather than policy creation.

During a quasi judicial action, witnesses must be under oath and able to be cross examined. Additionally, any evidence that is relied on must be presented and disclosed. The members of the council or commission must disclose any “ex parte” communications that they have had about the matter before them outside of the hearing.

A quasi judicial action must be challenged via a petition for certiorari to the circuit court. This petition virtually makes this action like an appeal of the decision of the local government board. During the certiorari action, the circuit court can only consider items that were presented as evidence during the hearing before the local government. Furthermore, it is important to have a transcript of the local government hearing to challenge the decision as this shows what the governmental board had before them to make their decision.

This is a much-simplified breakdown of the analysis of whether a local government has made a legislative decision or taken quasi-judicial actions and what your rights may be. If you are facing the action of a local government that may affect your rights, it is advisable to contact an attorney. It is important to have legal representation prior to the hearing of the local governmental body. Feel free to contact attorney Nathan Meloon.