Tuesday, January 7, 2014

Environmental And Land Use Law: Citizen Testimony In Quasi-Judicial Hearings

By Pamela Jo Hatley
Land-use entitlement requests often trigger the protests of large numbers of citizens who are rightly concerned about the impact of development on their quality of life and the character of their communities. Hatley, P., Preserving Place: A Grounded Theory of Citizen Participation in Community-Based Planning (Proquest, LLC, 2013). The testimony of lay citizens in quasi-judicial hearings presents challenges for fact-finders, decision-makers, the applicant, and the citizens.  One such challenge is whether the testimony of lay citizens in quasi-judicial hearings constitutes competent substantial evidence to support a decision to approve or deny a land-use entitlement request.  This article is a brief survey of cases that have addressed this question.
For a quasi-judicial decision to be sustained on appeal, it must be “reasonably based in the evidence presented.”  Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996, 1002-03 (Fla. 2d DCA 1993), quoting Town of Indialantic v. Nance, 400 So. 2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So. 2d 1041 (Fla. 1982).  “Substantial evidence” has been defined as “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred … such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).  Formal court rules regarding the introduction of evidence are not strictly applicable to administrative processes.  However, the evidence relied on to support ultimate findings of fact “should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” Id.
It is not the purpose of quasi-judicial hearings to “poll the neighborhood” on the proposal in question. 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, 1053 (Fla. 2d DCA 1981). Thus, the cumulative objections of neighbors do not constitute competent and substantial evidence on which to base findings and a decision. Id. Bare objections that are based on conjecture, the unpopularity of the proposed land use, or “laymen’s opinions unsubstantiated by any competent facts,” are insufficient. Conetta v. City of Sarasota, 400 So. 2d at 1053; BML Inv. v. Casselberry, 476 So. 2d 713, 715 (Fla. 5th DCA 1985); Pollard v. Palm Beach County, 560 So. 2d 1358, 1360 (Fla. 4th DCA 1990). General expressions of concern about possible traffic, crime, flooding, or noise impacts, without support of studies or empirical data, are not competent substantial evidence. City Comm’n of Miami v. Woodlawn Park Cemetery Co., 553 So. 2d 1227, 1229, 1235-36 (Fla. 3d DCA 1989); Flowers Baking Co. v. Melbourne, 537 So. 2d 1040, 1041 (Fla. 5th DCA 1989); Jesus Fellowship, Inc. v. Miami-Dade County, 752 So. 2d 708, 710-11 (Fla. 3d DCA 2000); Katherine’s Bay, LLC v. Fagan, 52 So 3d 19, 27 (Fla. 1st DCA 2010).
Nevertheless, citizens are able to offer competent testimony in quasi-judicial hearings without hiring “expert” witnesses. Metropolitan Dade County v Blumenthal, 675 So. 2d 598, 609 (Fla. 3d DCA 1995) (Cope, J., dissenting). on reh’g en banc, Metropolitan Dade County v. Blumenthal, 675 So. 2d 598, (Fla. 3d DCA 1996). When citizens convey facts that are relevant to the criteria applicable to the proposal in question, and of which they have first-hand knowledge, their testimony is properly considered and constitutes competent substantial evidence to support findings and a decision. Id.; St. Petersburg v. Cardinal Indus. Dev. Corp., 493 So. 2d 535, 538 (Fla. 2d DCA 1986); Board of County Comm’rs v. Clearwater, 440 So. 2d 497, 499 (Fla. 2d DCA 1983); Metropolitan Dade County v. Sportacres Dev. Group, 698 So. 2d 281, 282 (Fla. 3d DCA 1997); Metropolitan Dade County v. Section II Property Corp., 719 So. 2d 1204, 1205 (Fla. 3d DCA 1998); Miami-Dade County v. Walberg, 739 So. 2d 115, 117 (Fla. 3d DCA 1999); Marion County v. Priest, 786 So. 2d 623, 626-27 (Fla. 5th DCA 2001). Moreover, local citizens with first-hand knowledge of their communities are “as qualified as ‘expert witnesses’” to offer factual testimony on the impact of a proposal, where the facts offered are relevant to the applicable criteria. Board of County Comm’rs v. Clearwater, 440 So. 2d at 499.
Thus, citizens should freely participate and voice their concerns at quasi-judicial land-use hearings, but they should prepare thoroughly and carefully constrain their testimony to facts of which they have first-hand knowledge and that are relevant to the applicable criteria.  If they do so, local government fact-finders and decision-makers may confidently rely on citizens’ testimony as competent and substantial evidence to support their findings and judgments.