Taylor E. Falkner, Esq.
Land Use, Local Government Law

There are generally two types of land use proceedings before a local government, legislative and quasi-judicial. Legislative decisions are those in which the local government is tasked with formulating policy rather than applying specific rules to a particular situation. Quasi-judicial decisions involve the application of policy to a specific development application.

Most Florida hearings on land use applications are quasi-judicial in nature, including rezone and site development applications (hearings for comprehensive plan amendments and large-scale rezonings are two major exceptions).

Whether a land use decision is legislative or quasi-judicial is critical in understanding procedural due process rights. For instance, quasi-judicial hearings require an opportunity for the parties to present evidence, cross-examine witnesses, and allow witnesses to testify under oath. Generally, there is no right in legislative hearings to cross-examine witnesses.

One major distinction between legislative and quasi-judicial land use hearings are the limits on communication between the parties and the deciding board. In regard to a legislative matter, council or board members are free to discuss such matters with citizens. However, the same cannot be said for quasi-judicial matters.

Members of a deciding board should not receive evidence or arguments on a pending quasi-judicial application outside of the public hearing for said application. This type of communication is known as ex parte communication. Ex parte communication is communication made outside of a public hearing and off the record to a council or board member by an interested person or party, concerning a quasi-judicial case that is to go before the board or council. Ex parte communication can be any oral, written, electronic or graphic communication with a council or board member about a quasi-judicial matter that could influence the disposition of the matter.

If ex parte communications have taken place, they must be disclosed at the quasi-judicial hearing, or they are presumed prejudicial to the outcome and could result in a finding of a violation of procedural due process. The rule against ex-parte communication ensures impartial decisions by requiring public disclosure of all evidence and arguments presented to the council or board. The rule also ensures that everyone involved receives a chance to respond to all evidence and arguments that may affect the decision.

At the local governmental level, for quasi-judicial land use decisions affecting individual property rights, the council and/or board are responsible for delivering the due process required by the Constitution. These decisions are intended to be made by a fair and impartial decision maker based on the evidence and testimony presented at a public hearing.

Please contact local government law attorney Taylor Falkner for more information at tflakner@blalockwalters.com or (941) 748-0411.