Building a Legally Defensible Record: A Planner's Role Before, During, and After the Hearing

By Peter J. Henn, AICP, Esq.

Planners need to take certain steps before votes are cast so land use decisions made by elected officials are legally defensible if a lawsuit is later filed. Assume elected officials in a quasi-judicial proceeding approve a land use application (e.g., small area rezoning, special exception/conditional use, site plan, waiver, or variance) and neighbors file a Writ of Certiorari lawsuit challenging the approvals; however, the analysis is the same if local government denies the approvals and the applicant files the lawsuit. Whether the local government wins may be based on actions of Planners both before and at the public hearing.

Local government should win if, among other things, their decision was supported by competent, substantial evidence. Substantial evidence is such evidence that establishes a substantial basis of fact from which a fact at issue can be reasonably inferred; to be competent, the evidence relied on should be sufficiently relevant and material so that a reasonable mind would accept it as adequate to support the conclusion reached.

Planner’s Staff Reports, Project Narratives/Justification Statements and Consultant’s Reports (the “Reports”) need to meet this standard to be competent, substantial evidence. Planners must write Reports as if they will become part of the litigation, because they will.

Quasi-judicial proceedings have established criteria in the code for applicants to meet. Reports must determine if the application meets these criteria. Do not add to or subtract from these criteria. Well-written reports are competent, substantial evidence and should be offered into the record at the public hearing. Having a Planner read a portion of these reports — especially the relevant facts and professional opinions — as sworn testimony at the public hearing is also compe-tent, substantial evidence.

The legal test is not whether the reviewing court agrees or disagrees with the evaluation of the evidence by the elected officials, but whether there is any competent, substantial evidence which to base the conclusion. The fact that the other side may have submitted its own competent, substantial evidence that supports a contrary result is irrelevant. If the record contains some competent, substantial evidence to support local government’s decision, the decision is presumed lawful and the court’s job is done, and local government should win.

The written transcript from the public hearing is part of the record that the court will review. Planners need to make sure the transcript includes well-rehearsed testimony that reports clearly show the application meets all relevant criteria in the Code based on competent, substantial evidence; and hopefully elected officials relied on reports and testimony in determining the relevant criteria was met.

What a Planner does may determine whether local government will be successful in defending a lawsuit challenging land use approvals. Planners and attorneys need to work together before the public hearing to develop a strategy to establish a clear record at the public hearing that is legally defensible if a lawsuit is later filed.

Note: All legal citations were omitted. This Article is not legal advice. Speak with your local government or private attorney for legal advice. Thank you.

Peter J. Henn, AICP, Esq., is Senior Counsel at Jones Foster Law Firm, in West Palm Beach, and is the Chair of the Florida Atlantic University Department of Urban & Regional Planning. He can be reached at phenn@jonesfoster.com or phenn@fau.edu.

© 2026 This article was originally published in the Summer 2026 issue of the American Planning Association (APA) Florida Planning Magazine.

The information provided in this article does not, and is not intended to, constitute legal advice; it is for general informational purposes only. No reader of this article should act or refrain from acting on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction to ensure the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation.