Quasi-judicial land use hearings and the need for competent substantial evidence

Submitted by Suanne Z. Thamm

Reporter - News Analyst

January 18, 2018 1:43 p.m.

During the January 17, 2018 Regular Meeting of the Nassau County Board of County Commissioners, County Attorney Mike Mullin made a presentation to commissioners to clarify needs and requirements for the conduct and deliberation of quasi-judicial hearings on land use matters. He raised concerns with respect to the hearing of cases that come before the Planning and Zoning Board, citing problems that could jeopardize the legal standing of decisions in court appeals.

Michael S. Mullin

Mullin’s concerns are applicable to all land use quasi-judicial hearings, whether held in Nassau County, the City of Fernandina Beach, or any place else in the state.

Mullin reminded Commissioners that in reviewing appeals, the court will review the record of the meeting. He identified seven areas as critical to court review: documentary evidence; quasi-judicial procedures; board comments; presenter’s comments; staff comments; motions; and hearing procedures.

He zeroed in on problematic questions and/or comments often made that are not germane to the Zoning Code or Comprehensive Plan. He cited the following examples from former court cases:

• “I wouldn’t want that in my neighborhood.”
• “Why don’t you change the configuration of your building shown on the plan?”
• “How many trees are you saving?”
• “We need the growth and tax base.”
• “We always need more tax money.”
• “What exactly are you putting on the property?”

One of the main problems Mullin identified is the need for any board handling quasi judicial hearings on land use to base decisions on “competent substantial evidence.” According to an article he presented (https://floridaldrs.com/2011/07/08/what-is-competent-substantial-evidence-in-florida-land-use-hearings/) the definition of this term is complex. The article provided 8 criteria for such evidence, which must be:

1. Reliable or credible
2. Factually-based and not unsupported generalized
3. Do more than merely create a suspicion or give equal support to inconsistent inferences
4. Possess something of substantial and relevant consequences
5. “Must not consist of vague, uncertain, or irrelevant matter not carrying the quality of proof …”
6. “Must amount to more than bare allegations or objections because it must establish a justifiable reason for support of or opposition to an issue.”
7. Must be more than surmise, conjecture or speculation
8. “Must be based on something more than mere probabilities, guesses, whims or caprices, but rather … a reasonable foundation for the conclusion reached.”

The article goes on to state: “ … [H]ypothetical, speculative, fear or emotion based generalized statements that do not address the relevant issues and, although perhaps politically persuasive, cannot be reasonably said to support the action advocated, are not competent substantial evidence, and have no role to play in the review of a land use application.” Opinions, unless offered by someone with technical expertise, are not competent substantial evidence. “It doesn’t matter if the room is full of people offering their views, if their views do not rise to the level of competent substantial evidence, their testimony should have no effect on the decision.”

For a crash course in state land development rules, including quasi-judicial hearings, competent substantial evidence, and real examples from court cases, visit the website Florida Land Development Regulations https://floridaldrs.com.

Editor's Note: Suanne Z. Thamm is a native of Chautauqua County, NY, who moved to Fernandina Beach from Alexandria,VA, in 1994. As a long time city resident and city watcher, she provides interesting insight into the many issues that impact our city. We are grateful for Suanne's many contributions to the Fernandina Observer.