How to Set the Record Straight When Appealing Local Government Decisions in Quasi-Judicial Zoning Hearings

Teams of experts, advisors and legal counsel prepare for months to win the day at a public hearing for a proposed development. The presence of an attorney can keep a public hearing “on the rails,” assuring local, state and federal laws are properly applied in what can be a very tense proceeding. Consultants can then testify to the technical aspects of a development proposal and focus on the factual questions from citizens, staff and elected officials.

If the hearing doesn’t go your way, you must preserve your ability to competently and thoroughly appeal a vote in such a fluid environment. Filing a petition for writ of certiorari with the circuit court is the predominant method of appeal of a quasi-judicial decision in Florida. The petition is governed by the Florida Rules of Appellate Procedure and must be filed within 30 days of “rendition” of the order.

When is an order considered “rendered”?

A signed, written order is considered “rendered” in Florida when it is filed with the clerk of the lower tribunal. In the local government context, that person is the clerk or, according to the case law, the “person who most closely resembles a clerk in function performed.”

Some local governments in Florida have clearly written rendition procedures. Others have a complicated series of orders and processes that can be misleading. The 30-day deadline to file the appeal cannot be extended, so it’s best to take a conservative approach. Count the earliest date the decision could reasonably be considered “rendered” as the start of the 30-day appeal period.

How is the appeal reviewed?

A writ of certiorari appeal to the circuit court is a closed, record-based proceeding. It is crucial to submit all evidence you might use in an appeal to the clerk of the local government before or during the quasi-judicial hearing. Some local governments now provide a transcript of these hearings to all parties, but others do not, so you may want to have a court reporter present at the hearing.

In certiorari review, the circuit court must determine whether:

1. Procedural due process is accorded
2. The essential requirements of law have been observed
3. The administrative findings and judgment are supported by competent, substantial evidence

1. Procedural Due Process

In local government hearings, parties must be able to present evidence, cross examine witnesses and be informed of all the facts upon which the local governing body acts. Statutory notice requirements are strictly enforced but can be waived if the party appeared at the hearing and was able to freely present his or her objections.

2. The Essential Requirements of Law

A local government has departed from the essential requirements of law if it has violated a clearly established principle of law that led to a miscarriage of justice. The mere existence of a legal error that did not affect the outcome of the governing body’s decision will not result in a reversal and remand of the decision. The correct law may be derived from a variety of sources, including local government ordinances.

3. Competent Substantial Evidence

Evidence in a quasi-judicial local government proceeding is considered competent and substantial if it meets both of these standards:

• Sufficient to sustain a finding
• Sufficiently relevant and material that a reasonable mind would accept it to support a conclusion

What is considered competent substantial evidence?

Competent Substantial Evidence	Not Competent Substantial Evidence
· The application being heard by the quasi-judicial body · Fact-based statements or studies presented by experts or fact-based statements by citizens presented in correspondence or during the hearing · Applicable land development regulations · The local government staff’s interpretation of its regulations and resulting recommendation (the staff report)	· Speculative, opinion-based testimony from lay witnesses · Generalized statements in opposition, even from experts, which are not based in fact · Political innuendo or direct attacks on elected officials or the applicant based on personal feelings and speculation

If a circuit court finds the local government’s decision fails one or all of these three prongs, it must be quashed and remanded back for reconsideration. However, the circuit court may not step into the shoes of a local governing body and approve or disapprove a quasi-judicial application, such as a rezoning request. The proceedings must be held again, subject to the findings and stipulations of the court’s order.

Although it can be frustrating not to achieve “total victory” through a circuit court appeal, a circuit judge’s order provides assurance the subsequent hearing will be conducted within the boundaries of the law. This guidance greatly increases the applicant’s chances for a positive outcome.

Please contact Derrill McAteer or any member of Phelps’ Business team if you have questions or need advice and guidance.