If your community association receives notice about a public hearing to consider or approve a development proposal on adjacent land, does the association or its members have a right to object? Yes, local governments must afford objecting property owners and residents procedural due process, which includes fair notice of the public hearings at which the proposal will be considered and a meaningful opportunity to be heard. However, the extent to which a community association and its residents “have the floor” to object to a proposed development during a public hearing depends on several things.
As a preliminary matter, the required procedures in the quasi-judicial hearing process, where a government’s land use and zoning policies are applied to a specific development application, is much less rigid than in the judicial context. Quasi-judicial proceedings before a government agency are not controlled by the strict rules of evidence and need only be “essentially fair.” This means affording fair notice of the quasi-judicial hearing at which the development application will be heard and a “meaningful opportunity” to be heard.
There is an important distinction between “parties” and “participants” to a quasi-judicial proceeding under Florida law which impacts what constitutes a “meaningful” opportunity to be heard. “Parties” to quasi-judicial proceeding include the landowner applicant, while “participants” include members of the public who may appear to oppose a proposed development project. Only parties are afforded the opportunity to present evidence and oral argument and cross-examine witnesses before the impartial decisionmaker (e.g., the government agency’s Hearing Examiner or Board of County Commissioners), because a party’s interests would be directly impacted by the decision reached in the proceeding. By comparison, participants only have the right to speak about the proposed development application subject to the decisionmaker’s review, often for a more limited period of time at the public hearing as compared to parties. Participants also do not have the right to cross-examine witnesses.
Whether a community association or individual residents are to be recognized as a party and not just a participant to a quasi-judicial proceeding depends on several factors. Being granted heightened procedural due process rights as a party requires showing that special damages will be suffered that differ in kind, rather than degree, from others in the community. Being a property owner near the property where the development is proposed or having received notice from the government agency of the quasi-judicial proceeding are persuasive but are not the only the only factors to be considered. A community association or its individual residents must still have interests that will be adversely impacted in a way that is different from members of the public generally (e.g., the blocking water views or shading of adjacent properties). If this threshold test is not met, it does not mean that an agent for the community association or individual residents cannot speak out in opposition to the proposed development application at the public hearing. However, the time to speak is likely limited and would not be coupled with an opportunity to cross-examine the developer’s witnesses.
If facing an undesirable development proposal in the vicinity, it is recommended that community associations consult a knowledgeable land use and zoning attorney. Such an attorney can advise the association on the possible impacts of the proposed development on the association and its residents if it is approved, the approval process and the due process rights to be afforded to the association, opportunities for public input and possible negotiation with the developer, and the appeal procedure if an unfavorable outcome results at the quasi-judicial level, among other things.
