Quasi-Legislative & Quasi-Judicial Local Land Use Decisions
By Jennifer B. Springfield and Alexander Boswell-Ebersole
The duties of local governing bodies, county and municipal commissions and plan boards, often include making land use decisions. These decisions frequently involve public hearings. When a land use application makes its way to a county or municipal governing body, also referred to as a “local government”, the body generally conducts one of two basic types of hearings. Depending on the nature of what the local government is being asked to decide, hearings either proceed as “quasi-legislative” or “quasi-judicial,” and local governing bodies either make “quasi-legislative” or “quasi-judicial” decisions. The word “quasi” as used in this context means “resembling” or “like,” and therefore quasi-judicial hearings/decisions are “like judicial proceedings,” while quasi-legislative hearings/decisions are “like legislative proceedings.”
Other significant differences also exist between quasi-judicial and quasi-legislative hearings and decisions. The level of due process required, the burden of proof and standard of review, and the degree of immunity enjoyed by the local government and its representatives are some of the aspects that will differ depending on whether a hearing proceeds as quasi-legislative or quasi-judicial. Whether its large-scale development like Plum Creek’s plans for eastern Alachua County, Butler Plaza’s expansive expansion, the mixed-use, transit-oriented Springhill community west of Gainesville, or something more modest, like the construction of a new brewery downtown or an alteration to a private residence, plenty of opportunities exist to encounter the differences between quasi-legislative and quasi-judicial hearings and decisions.
Quasi-legislative hearings/decisions are essentially those hearings/decisions where a local governing body formulates policy for future application to a broad area of public business. Whereas quasi-judicial hearings/decisions are those where the governing body applies previously established policy or regulations to a specific proposed activity. Examples of quasi-legislative land use decisions are the adoption and amendment of comprehensive plans and land development regulations. Plum Creek’s proposed development provides a local example of a land use action implicating a quasi-legislative decision because it seeks County Commission approval of a sector plan, which requires the comprehensive plan to be amended. On the other hand, decisions concerning zoning variances, special use permits, and code violations are all examples of quasi-judicial decisions.
Quasi-legislative hearings proceed with less formality. While quasi-judicial hearings need not adhere to strict rules of evidence and procedure, certain standards of fairness must be met to assure that due process is provided. These standards include the right to present evidence, cross-examine witnesses, and demand that witnesses be sworn. Parties to quasi-legislative hearings do not typically enjoy such rights, at least not as a matter of due process requirements.
One of the most discussed distinctions between quasi-judicial and quasi-legislative proceedings involves ex parte communications or discussions with a member of the governing body, e.g., a commissioner, outside the presence of other parties. Nothing restricts ex parte communications when it comes to quasi-legislative hearings. Parties with an interest in such matters are generally free to speak to or otherwise contact the local representatives who will be making the quasi-legislative decisions. Conversely, significant restrictions apply to ex parte communications during quasi-judicial proceedings. Any ex parte communication made outside of a quasi-judicial hearing raises a presumption that the ex parte communication prejudices the final decision, unless the communication is disclosed at the hearing. If ex parte communication occurs and is not disclosed, the presumption of prejudice may only be rebutted if the local government can establish, pursuant to an analysis of several criteria articulated by case law, that the communication lacks any prejudicial effect. Since applicants seeking land use approvals, local government representatives, the general public, and other parties are usually accustomed to communicating freely, this restriction on ex parte communication often causes substantial confusion, misunderstanding and friction.
In addition, different levels of immunity for local government representatives and different burdens of proof and standards of review also apply in quasi-legislative versus quasi-judicial hearings/decisions. When making a quasi-legislative decision, local government representatives personally enjoy absolute immunity from suit due to the fact that they are making policy decisions, but in making quasi-judicial decisions, i.e. applying established policy, local representatives merely enjoy qualified personal immunity. The degree of immunity afforded to representatives arose where a local commission denied a landowner’s application for a land use approval, leading the landowner to file suit against the commissioners individually under federal civil rights law claiming that the denial constituted a deprivation of private property without due process of law. The court found that the representatives did not have absolute immunity because the decision amounted to an application of a zoning ordinance and therefore, the qualified immunity that the representatives did enjoy required that they plead and establish an affirmative defense in order to avoid personal liability under a proper civil rights claim.
Finally, local governing bodies as a whole enjoy considerable discretion when making quasi-legislative decisions. As such, quasi-legislative decisions must merely satisfy the “fairly debatable” standard, i.e. the decision must not be arbitrary, discriminatory, or unreasonable. In contrast, quasi-judicial decisions are subject to review by certiorari in circuit court and the decision is reviewed under the “competent substantial evidence” standard. Due to this heightened standard, the governing body and the parties presenting evidence face greater responsibility to ensure that the record of the hearing comprehensively and accurately reflects the matters presented.