HomeMy WebLinkAbout1997 07 02 Regular Item D
.,.
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327.1800
Community Development
P & Z BOARD / LOCAL PLANNING AGENCY
REGULAR AGENDA ITEM:
II. D. "DRAFT" BY-LAWS IN THE CONDUCT OF-
MEETINGS AND BUSINESS OF THE P & Z / LP A
.,
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CITY OF WINTER SPRINGS, FLORIDA
LOCAL PL~G AGENCY
PL~G AND ZONING BOARD
BY-LAWS IN THE CONDUCT OF MEETINGS AND BUSINESS OF THE BOARD
PURPOSE AND INTENT
It is the purpose and intent of these !?y-Laws to set forth a
uniform set of rules of procedure whereby the City of Winter
Springs Planning and Zoning Board/Local Planning Agency may
regulate the manner in which it elects officers, conducts meetings,
and otherwise carries out its designated functions. It is further
the intent of these By-Laws to serve as a guideline in the conduct
of the business and affairs pertaining to the P&ZjLPA.
ARTICLE I
GENERAL GOVERNING STATUTES, ORDINANCES, AND RULES
The Planning and Zoning Board/Local Planning Agency shall be
governed by all of the following statutes, ordinances, and rules:
1.1 Applicable state statutes and Local Ordinances and Rules.
To the extent that they remain in force and effect, as they
are amended, or as they may be added to, the board and its
members and officers shall be governed by state statutes and
local ordinances including the following:
a. state statutes applying generally to public boards,
members, and officials, including:
* Article I, Section 24, Florida Constitution
* Chapter 112 F.S. "Public Officers and Employees"
* Chapter 119 F.S. "The Public Records Law"
* Chapter 286 F.S. "Government-in-the-Sunshine Law"
b. State statutes relating to activities of Planning and
Zoning Boards and Local Planning Agencies in relation to
planning and zoning, including:
* 163.3174 F.S. "Local Planning Agency"
* Chapter 187 F.S. "State Comprehensive Plantl
* Chapter 163.Part II "Local Government Comprehensive
Planning and Land Development
Regulation Act"
* Chapter 166 "Municipal Home Rule Powers Act"
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c.
Ordinances
generally
including:
Winter springs
and officials,
the city of
local boards
and rules of
affecting its
* Sec. 20-51 City Code "Zoning"
* Chapter 9 City Code "Land Development"
* Chapter 15 city Code "Planning"
* Chapter 16 city Code "Signs and Advertising"
* Chapter 8 City Code "Flood Damage Prevention"
d. The Zoning Ordinance of the City of winter Springs:
* Chapter 20 City Code "Zoning"
e. The Rules of the Board, as set forth herein.
1. 2 Requirement for Familiarity with state Statutes and Local
Ordinances and Rules Affecting the Board.
1.3
1.4
Upon taking office, all members of the board shall familiarize
themselves with the foregoing, and, while in office, members
shall maintain such knowledge, including knowledge of
amendments and additions, and shall be strictly governed
thereby in the conduct of board affairs.
Rules of the Board to be Available to Public in Board Office.
OCA/~5 ' .
A certified official copy of ~ of the Board, in current ~
form, shall be available in the office of the board---as----a- ~
pllh1 ie :record. Additional copies shall be provided to members
of the board and made availabl~o the public on request, but
the official copy in the board s office shall govern. No
amendment to these rules shal pe\~come effective until
incorporated in the official cOPY'W(Ifk" .. s d!i~ de)
Location of Board Office. ~ ~ "-6 ~ ~ c~ 'S.
The office of the Board shall be~~e~~o, Winter spr;ng1L
city Hall, 1126 East state Road 434, Winter Springs, FL 32708.
The office hours are normally from 8:00 a.m. to 5:00 p.m.
weekdays, except legal holidays.
ARTICLE II
DUTIES
The Planning and Zoning Board, which also serves as the Local
Planning Agency shall, among other things, assimilate existing
plans, programs, and policies; statistical and other factual data;
recognized planning principles and standards; citizen needs,
desires, attitudes and any other information deemed necessary to
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formulate and make recommendations on matters involving the
Comprehensive Plan and Land Development Regulations.
2.1 The Planning and Zoning Board shall have the general
responsibility to:
2.1.1
2.1. 2
2.1. 3
2.2
2.2.1
2.2.2
Act in an advisory capacity to the city commission on
questions relating to zoning; the boundaries of the
various original zoning districts and appropriate
regulations to be enforced therein; review and make
recommendations on applications for amendments to the
Zoning Ordinance to the City commission. Said
recommendations shall state wheth.er or not said amendment
is consistent with the adopted Comprehensive Plan or
element or portion thereof.
Review and make recommendations to the city Commission on
site plan, subdivision, PUD development proposals,
annexations to the City commission.
Perform any other functions, duties, and responsibilities
assigned to it by the City commission or by general or
special law.
The Local Planning Agency (LPA) shall have the
responsibility for the conduct of the comprehensive
program. Specifically, the LPA shall:
general
planning
Be the agency responsible for the preparation of the
comprehensive plan or plan amendment and shall make
recommendations to the governing body regarding the
adoption or amendment of such plan. During the
preparation of the plan or plan amendment and prior to
any recommendation to the City Commission, the LPA shall
hold at least one public hearing, with public notice, on
the proposed plan or plan amendment. The City Commission
in cooperation with the LPA may designate any agency,
commi ttee, department, or person to prepare the
comprehensive plan or plan amendment, but final
recommendation of the adoption of such plan or plan
amendment to the ci ty Commission shall be the
responsibility of the LPA.
Monitor and oversee the effectiveness and status of the
comprehensive plan and recommend to the City commission
such changes in the comprehensive plan as may from time
to time be required, including preparation of the
periodic reports (Evaluation and Appraisal Reports)
required by 163.3191 F.S.
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2.2.3 Review proposed land development regulations, land
development codes, or amendments thereto, and make
recommendations to the City commission as to the
consistency of the proposal with the adopted
comprehensive plan, or element or portion thereof.
To conduct investigations on matters or proposals to
change land development regulations;
ARTICLE II MEMBERS
2.1 Number of Members; Appointment; Qualifications; Terms;
Compensation; Procedure for Removal;_ Procedure for Filling
Vacancies; and Terms of Members Appointed to Fill Vacancies.
Number of members and alternates; Appointment; qualifications;
terms; compensation; procedure for removal; procedure for
filling vacancies; and terms of members appointed to fill
vacancies shall be provided in:
*
*
Sec. 20-52
Sec. 20-53
Zoning Ordinance
Zoning Ordinance
2.2 Cause for Removal from Board.
Causes for removal of members (including alternates) from the
Board by the City commission shall include malfeasance,
misfeasance, or nonfeasance generally, and in particular:
a. Failure to attend three (3) meetings within any twelve
(12) month period of time.
b. Failure to maintain reasonable familiarity with state
statutes and local ordinances and rules affecting the
Board, or failure to be governed thereby, as.required by
Section 1.2 above.
c. Failure to disclose conflict of interest for purposes of
disqualification when a member has personal or monetary
interest in the matter involved, or will be directly
affected by a decision of the board.
* Chapter 286 F.S. "Government-in-the-Sunshine Law"
2.3 Resignations, Generally, and by Absence.
When members propose to resign, if reasonably feasible, they
shall give notice. of their intent to the chairman or
secretary, or make the date of resignation effective, in such
a manner as to allow time for appointment of replacements.
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2.4 Vacation of Office.
When a member dies or resigns, the secretary shall promptly
indicate to the City Commission that a vacancy exists. When
a member becomes incapacitated for office permanently or for
what appears likely to be a protracted period, or moves from
the jurisdiction, or becomes for any other reason no longer
qualified for office, and fails to resign, the chairman shall
cause any necessary investigation to be made and if
appropriate shall declare the office vacant, and the secretary
shall promptly indicate to the City commission that a vacancy
exists.
ARTICLE III
OFFICERS, COMMITTEES, STAFF, DUTIES
3.1 Regular Election of Chairman, Vice-Chairman; provisions for
Contingencies; continuation of Service until Successors Take
Office.
Annually, as the last item on the agenda at the regular
meeting of the Board in the month of July, the Board shall
elect a chairman and vice-chairman. If such regular meeting
is cancelled or a quorum is lacking, the election shall be
held as soon thereafter at the next regular meeting provided
that if no such election is held within 60 days of the date
when generally required, the secretary shall notify the City
Commission, which shall appoint a chairman and vice-chairman
to serve until an election can be held. The prior chairman
and acting chairman shall remain in office until their
successors take office at the next regular or special meeting
following their election or appointment.
3.1.1
Succession of Vice-Chairman to Office of Chairman,
Special Elections.
If the chairman resigns his office or becomes no longer
a member of the Board, the vice-chairman shall succeed
him in office for the remainder of the term. If the
vice-chairman resigns his office, becomes no longer a
member of the Board, or succeeds to the chairman's
office, a special election shall be held at the next
regular meeting of the Board to select a vice-chairman to
complete the term, provided that if such regular meeting
is one immediately preceding the regular election and any
duties to be performed by the vice-chairman in the
intervening period can be performed in a satisfactory
manner, the Board may permit the office of vice-chairman
to remain vacant for the period.
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3.2 Duties of Chairman and Vice-Chairman; Appointment of Temporary
Chairman to Preside at Meetings.
3.2.1 Presiding at Meetings.
If present and able, the chairman shall preside at all
meetings, hearings, and workshops. If the chairman is
absent or unable to preside, the vice-chairman shall
preside. If both are absent or unable to preside, the
members present shall appoint a temporary chairman to
preside.
In accordance with these and oth~r applicable rules, the
presiding officer shall decide all points of procedure or
order, unless otherwise directed by a majority of the
members in attendance on motion duly made and passed. He
shall maintain order and decorum, and to that end may
order removal of disorderly or disruptive persons. He
shall administer oaths to all witnesses, or arrange for
such oaths to be administered.
3.2.2
other Responsibilities and Duties of Chairman; Delegation
to Vice-Chairman.
The chairman shall have further duties and
responsibilities, as indicated below. He. may delegate
specific duties generally to the vice-chairman or may
authorize the vice-chairman to perform specific duties,
during his absence from the jurisdiction or in case of
his other disability to perform necessary Board functions
in a timely manner. The vice-chairman shall perform all
duties so delegated, and in case of absence or incapacity
of the chairman, on approval by majority of the Board,
shall perform any or all duties of the chairman whether
or not delegated.
3.2.2.1
Managerial Responsibilities.
Subject to these rules and further instructions from the
Board, the chairman shall direct the official business of
the Board, supervise the work of the secretary as it
relates to the affairs of the Board, request needed
assistance, confer with the City Manager on work of the
staff.
3.2.2.2
Assignment of Board Members to Inspection Duties;
Appointment of Committees.
The chairman may designate members of the Board to make
personal inspections when necessary for the proper
consideration of cases; and shall appoint such committees
as may be found necessary.
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3.2.2.3
Reporting to the Board; for the Board.
The chairman shall report to the Board on all official
transactions which have not otherwise come to the
attention of the Board. The chairman shall also make or
cause to be made any reports concerning the affairs of
the Board required or requested by the City commission.
3.3 Appointment of Secretary.
3.3.1 Appointment.
The Secretary to the Board shall pe appointed by the City
Manager and shall be a member of the City staff.
3.3.2
Duties of the Secretary.
The Secretary shall in general attend to all
correspondence of the Board; send out or cause to be
published all notices required; attend all meetings of
the Board and all hearings (except when excused by the
chairman of the Board and with temporary services
arranged); compile all required records; maintain the
necessary schedules, files; and generally perform all
clerical work of the Board. In particular:
3.3.2.1
Minute Book; Minutes a Public Record.
The Secretary shall maintain a minute book which shall be
kept posted to date. In the minute book shall be
recorded the Board's proceedings, showing attendance and
all absences, with indications as to whether absences
were excused or unexcused by the chairman, and
disqualifications of members, the record of its
examinations and all other official actions, and the vote
of each member voting on every question. The minutes of
the Board shall be a public record, kept in the office of
the Staff member serving as Secretary to the Board.
3.3.2.2
The Secretary shall transmit to the City commission in
writing and in duplicate the recommendations of the
Planning and Zoning Board/Local Planning Agency and shall
show the estimated cost and the suggested method or
methods of financing.
3.3.2.3
NotJ.fication of
Vacancies.
Expiration of
Terms
of Members;
At least sixty (60) days prior to expiration of terms of
members, and as promptly as feasible where a member
resigns with a deferred effective date or when a member's
office is vacated, as provided at section 2.4 of these
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3.4
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rules, the Secretary shall notify the City Commission
that a vacancy exists and request the appointment of a
successor.
Staff to the Board.
The Board shall have access to the information and staff of
all the departments of the City government on such a basis as
these departments are able to render assistance to the Board;
provided, however, the Community Development Coordinator and
Land Management Specialist shall serve as the primary ~
professional staff of the Board.-. ~
Legal Counsel. - ~~
The City Attorney shall provide legal advice to the Board as 1r~~.
to matters under its jurisdiction and may assist in JV" 10~
interrogating witnesses. Advice of counsel shall be received "I
and entered in the minutes before disposition of any question ~
of law or matter requiring legal interpretation or advice.
ARTICLE IV
CONDUCT OF BOARD MEMBERS, STAFF
4.1 Representation of Applicants.
No member of the Board, or
applicants on matters on
determinations.
of its staff, shall
which the Board is
represent
to make
4.2 Conflict of Interest.
4.2.1
No member of the Board shall participate in any case in which
he has financial or personal interest in the property or
action concerned, or will be directly affected by the
decision, or has or believes he has any other conflict of
interest as defined by applicable law. No member of the staff
of the Board or of any agency serving the Board shall prepare
or present arguments or reports,. or attempt to influence
decisions of the Board, in any case in which he has similar
interest.
Chairman to be Notified of Conflict of Interest; Actions
by Chairman.
As soon as any Board member, or staff member of any
agency serving the Board, becomes aware of any potential.
conflict of interest in any case to come before the
Board, he shall notify the chairman or acting chairman of.
the particulars.. Where the chairman finds that conflict
clearly exists, he shall disqualify the Board member from
acting in the case and cause the Secretary to enter the
circumstances in the record.
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Where the chairman or acting chairman has reasonable
doubt as to whether the facts and applicable law indicate
a degree of conflict justifying disqualification or
excuse from service, he shall seek advice from counsel to
the Board. If counsel advises that, under the
circumstances reported and applicable law, conflict
appears to exist, the chairman shall proceed to
disqualify or excuse as provided above. If counsel
advises that there is reasonable doubt, the chairman may
(a) disqualify or excuse the person involved, or (b) call
for a determination by the Board at a public meeting.
The record on any such determina~ion by the Board shall
be full and complete and shall indicate the reasons
supporting the Board's decision.
4.3 Disqualification on Grounds of Influence Other Than at Public
Hearing.
Any member may disqualify himself from voting whenever any
applicant, or his agent, has sought to influence the vote of
the member on his application or appeal, other than in the
public hearing.
4.4 Expressions of Bias, Prejudice, or Individual Opinion Prior to
Hearing and Determination.
Board members may seek information from other members, the
Secretary, counsel to the Board, or staff serving the Board,
prior to the public hearing, but no member shall discuss the
case with any other parties thereto prior to the public
hearing, or express any bias, prejudice, or individual opinion
on proper judgement of the case prior to its hearing and
determination. Violation of this rule shall be grounds for
dismissal from the Board.
4.5 Members Not to Vote Unless Present at Public Hearing.
No Board member shall vote on any matter deciding an
application or appeal except after attending. the pUblic
hearing on the application or appeal.
ARTICLE V
APPLICATIONS; FILING; TIME LIMITS; INFORMATION
REQUIRED; EFFECTS OF FAILURE TO PROVIDE REQUIRED
INFORMATION; ORDER AT HEARINGS; PUBLIC NOTICE;
DECISIONS.
5.1 Powers of the Board; Limitations; Procedures, Generally.
The Board shall have all and only such powers as are delegated
to it by state enabling legislation and by the Zoning
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Ordinance and shall exercise such powers only in the manner,
for the purposes, and in accordance with the procedures set
forth therein.
5.2 Filing Applications; Forms.
All applications shall be filed with the Community
Delvelopment Department on forms approved by the Board. In
addi tion to information required to identify persons and
property involved, date and time of filing, and the like, such
forms shall make reference to other requirements of
application indicated in Chapter 9 "Land Development".
5.3 Preliminary Determinations on Applications Submitted for
Filing; Deficiencies in Information Supplied.
When applications are submitted for filing, they shall be
examined for completeness and accuracy, and particularly to
determine whether all information necessary to make
determinations has been suppliedas per requirements of Chapter
9 "Land Development". Where information is lacking or
inadequate at time of submission and the deficiency cannot be
remedied immediately, the applicant shall be notified in
writing as to the nature and extent of such deficiency.
5.4 Time Limits on Public Hearings, Notice, Decisions.
Applications shall be heard at public meetings within thirty
(30) days of the date of review by the Development Review
Committee, and decided at the same meeting, at the next
regular meeting of the Board, or at a special public meeting
prior to such regular meeting, but in any event within thirty-
six (36) days of the meeting at which the hearing on the
particular case was concluded.
Timing and manner of publication of public notice for such
hearings shall be as provided in the Zoning Ordinance in Sec.
20-59 City Code, Chapter 9 City Code, 9J-11.003 F.A.C. as may
be appropriate depending on the nature of the case. In
addition, at least 10 days in advance of the hearing, notice
shall be given to parties in interest and to other persons
required by the ordinance to be specially notified.
ARTICLE VI
~' Regu'er Meetinge,
MEETINGS, HEARINGS, GENERALLY.
Regular meetings of the Board shall be held at 7:00 p.m. at
the City Hall city Commission Chambers on the first Wednesday
of the month; provided that such meetings may be held at any
other convenient place if directed by the chairman in advance
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of the meeting or upon a finding that such other location
would serve public convenience or necessity.
6.2 Special Meetings.
Special meetings for any purpose may be held at the call of
the chairman, or by three (3) members of the Board. At least
forty-eight (48) hours written notice of the time-and place of
any special meeting shall be given by the Secretary except
where written waivers of notice are filed by all members
required to provide a quorum and in attendance at such
meeting.
Call of a special meeting at a specified time and place and
for specified purposes at a regular meeting shall-be notice
thereof as to members in attendance at such regular meeting,
but other members shall receive written notice thereof.
If a special meeting is called on a case or cases subject to
notice of hearing, the required notice provisions for the
hearing shall be met.
6.3 Recess or Adjournment.
Any regular or special meeting may be recessed or adjourned
from day to day, or to the time of any previously announced
regular or special meeting, and such recess or adjournment to
a time and place certain shall not require additional public
notice.
6.4 Cancellation.
If no business is scheduled before the Board, or if it is
apparent that a quorum will not be available, any meeting may
be cancelled by the chairman by giving notice to all members
at least forty-eight (48) hours before the time set for such
meeting.
6.5 Quorum.
A quorum of the Board shall consist of three (3) members.
6.6 Public Meetings of the Board; Notice; other Activities of the
Board; Schedule.
All meetings of the Board involving hearing of evidence and/or
decisions of the Board shall be public, with formal notice as
required by law.
Meetings for the conduct of other business of the Board,
including trips for viewing premises, shall not require such
formal public notice, but shall be scheduled at least seven
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(7) days in advance, with the schedule posted in the Lobby of
City Hall and the Office of the Board.
6.7 Agenda, Order of Business.
The city staff shall prepare
materials for each Board meeting.
as follows:
an agenda and supporting
Order of business shall be
I. CALL TO ORDER
Roll Call
Pledge of Allegiance
Approval of Minutes
II. AGENDA ITEMS
III. ADJOURNMENT
ARTICLE VII. PROCEDURES AT PUBLIC HEARINGS
7.1 Rules of Procedure.
The Rules of Procedure set forth below are applicable to the
Board when serving in a Quasi-Judicial capacity concerning
zoning/comprehensive plan related matters. For non-quasi-
jUdicial matters, the rules of procedure for the conduct of
meetings shall follow Robert's Rules of Order.
7.1.1 The definition of "Quasi-Judici.al" and
"zoning/comprehensive plan related mattertl are found in
Appendix "A" of this document.
7.2 Conduct of Board Involving a Quasi-Judicial Proceeding.
See Appendix "B" and Appendix "e"
7.3 Who May Appear or Be Represented.
At the hearing, any person may appear or be represented by
authorized agents or attorneys. Such agents or attorneys
shall present competent substantial evidence of extent of
their authorization.
7.4 witnesses to Testify Under Oath.
All witnesses to material facts shall testify under oath, to
be administered by the chair.
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7.5 Order for Presenting Evidence.
1. The chair, or such persons as he may direct, describes
the nature of the case, and evidence available to the
Board is presented, including staff reports.
2. The applicant or authorized representative may outline
the nature of the request prior to introducing evidence.
The chair may restate the case if this initial statement
needs clarification.
3. Applicant presents evidence.
4. Objectors cross-examine.
5. Board members examine witnesses for applicant's side.
5. Objectors present evidence.
6. Applicants cross-examine.
7. Board members examine witnesses for objector's side.
8. Rebuttal by applicant.
9. Rebuttal by objectors.
7.6 Evidence.
The Board shall not be bound by strict rules of evidence, not
limited to consideration of such evidence as would be
admissible in a court of law, but it may exclude irrelevant,
immaterial, incompetent, or unduly repetitious testimony or
evidence. The chair shall rule on all questions relating to
the admissibility of evidence, but may be overruled by a
majority of the Board members present. [See Appendix A and C]
7.7 Conduct During Hearings; Interrogations.
During the hearing, each side shall proceed without
interruption by the other. All arguments and pleading shall
be addressed to the chair. There shall be no questioning or
argument between individuals in the audience. The chair or
Board members, counsel to the Board, or staff may direct any
questions to the applicant, witnesses, or any person speaking
from the audience, to bring out pertinent facts. The chair or
Board members may call for pertinent facts from the staff, or
make appropriate comments pertinent to the case. No Board
member should debate or argue with persons in the audience.
13
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--
ARTICLE 8 FINDINGS AND DECISIONS
After conclusion of the hearing on the matter, wi thin the time
limits set by section 5.4 of these Rules, the Board shall examine
the evidence before it in relation to findings required and make
its decision. More particularly:
8.1 Timing of Decisions.
with due consideration to the length of the agenda, the nature
of the case, the complexity of the evidence, and the findings
required, the chair may elect, subject to being overruled by
a majority of the Board in attendance_on motion duly passed:
a. To proceed immediately to determination and decision on
conclusion of the hearing in the particular case, or
b. To defer determination and decision until later in the
same meeting, or
c. To defer determination and decision until a specified
special or regular meeting of the Board within the time
limit set by these Rules.
8.2 Findings and Decisions.
All such decisions of the Board shall be made at a public
meeting by motion made and seconded and by roll call vote.
The motion shall be in the form of findings of fact and shall
state the reasons for the findings by the Board.
[See Appendix C)
ARTICLE 9 NOTIFICATION OF DECISION
Notice of the Board decision shall be given to the applicant and to
other interested parties who have requested such notice, by the
Board (designated city staff) as soon as reasonably possible after
the decision is reached, but within twenty (20) days.
ARTICLE 10
RECORDS OF CASES
10.1 Content of Records of Individual Cases.
The decision of the Board shall be shown in the record of the
case. Such record shall show the reasons for the
determination, with a summary of the evidence introduced and
the findings of fact made by the Board.
14
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10.2
Records to be
Distribution of
Authentication.
Entered in Minutes of the Board; Advance
Draft Minutes to Board Members; Approval;
Such record shall be entered in the minutes of the Board. A
draft of proposed minutes containing such records shall be
transmitted to each Board member at least five (5) days in
advance of the meeting at which they are to be considered for
approval. Following approval, as submitted or as amended, the
minutes shall be acknowledged as to accuracy by the signature
of the chairman.
ARTICLE 11
REQUESTS TO WITHDRAW APPLICATIONS; TO DEFER OR
CONTINUE HEARINGS
11.1 withdrawal.
On written request from the applicant, or authorized agent, an
application may be withdrawn at any time before the Board
makes its decision in the case. If such request is made less
than five days before the scheduled publication of the public
notice, limitations on resubmittal of substantially the same
application shall be the same as in the cases where
applications are denied.
11.2 Deferrals and continuances.
On its own motion, or on approval of requests by applicants,
or their authorized agents, the Board may defer the hearing of
cases or provide for later continuance of cases on which
hearings have begun. Such deferrals or continuances shall be
permitted only for good cause, stated in the motion, and
unless time and place is stated, shall require new public
notice.
ARTICLE 12
AMENDING OR WAIVING RULES
14.1 Amending or Waiving Rules
14.1 Amending Rules.
These rules may be amended by a majority of the Board except
where such amendment would be contrary to requirement or
limitation set by state law or the Zoning Ordinance. An
amendment may be proposed at any regular meeting of the Board,
and shall not be acted upon until the following regular
meeting. Not less than seven (7) days prior to the meeting at.
which the amendment is to be voted upon, members shall be sent
a copy of such proposed change.
15
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14.2 Waiving or Suspending Rules.
A rule of procedure may be suspended or waived at any meeting
by unanimous vote of Board members present unless such rule is
set by state legislation or the Zoning Ordinance.
16
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APE N D I X "A"
DEFINITIONS
APPLICATONS -
ARBITRARY AND CAPRICIOUS - means a standard used by courts to
review appeals of land use decisions. If a decision is not
supported by facts, it will be arbitrary and capricious.
APPEARANCE OF FAIRNESS DOCTRINE - Actions which create a true or
false impression that a local official is not being fair when
making a land use decision. Examples of actions that may violate
the appearance of fairness include unrevealed ex-parte contact,
personal or monetary interest in the outcome of a request, unfair
hearings, pre-judgment and apparent hostility or favoratism toward
a party.
BOARD - means the city of Winter Springs Planning and Zoning Board
and Local Planning Agency.
CASE - A zoning/comprehensive plan related matter involving a
public hearing where the Board considers si te-specif ic zoning
changes, site-specific comprehensive plan amendments, and other
site-specific development orders.
COMPETENT SUBSTANTIAL EVIDENCE - means sufficiently relevant and
material evidence a reasonable mind would accept as adequate to
support a conclusion.
CROSS EXAMINATION Asking questions of
previously testified for the other side. The
by one representing the opposing position.
a witness who has
questioning is done
DIRECT EXAMINATION - Asking questions of a witness by someone
advocating the same position.
EX-PARTE CONTACT - Ex Parte contacts are those that happen outside
the hearing between decision maker and an opponent or proponent of
a land use proposal. Ex Parte contacts may violate the Appearance
of Fairness doctrine.
EXPERT - means a person who is qualified in a subject matter by
knowledge, skill,. experience, training, or education.
FINDINGS OF FACT lie CONCLUSIONS OF LAW - Written sections of a
formal decision that explain the basis for the decision. Findings
of Fact are based on the facts presented at the hearing, and
Conclusions of Law apply legal criteria to the facts presented.
.~_.~'8~-
17
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INTERESTED PARTY - means an individual, corporation, business or
land trust, estate, trust, partnership, association, or other legal
entity whose interest may be adversely affected by the Board's
action.
PERSONAL INTEREST - When a local official has something to gain or
lose by a land use decision. Personal interests may include land
ownership, employment opportunities, business competition, family
relationships and financial interests. Inappropriate personal
interests may disqualify one from participating in a decision.
PROCEDURAL DUE PROCESS - The process used to reach a decision on a
land use reuest. It includes everything that occurs from the time
an application is filed until the final decision is made.
SITE SPECIFIC
which has an
owners and
Specifically
comprehensive
- means a zoning/comprehensive plan related matter
impact on a limited number of persons or property
include identifiable parties and interests.
not included is comprehensive rezoning or
plan changes affecting a large portion of the public.
QUASI-JUCICIAL PROCEEDING - A process where a decision maker must
make a choice between competing positions and where the outcome
will have a greater impact on one group of citizens than on the
public generally. Quasi-Jucicial differs from legilative
proceedings in that legislative proceedings pimpact the community
as a whole. A local official may hear and decide both legislative
and quasi-judicial matters. The procedural requirements for land
use decision making imposed by the courts apply only to quasi-
judicial matters.
QUASI-JUDICIAL is determined by the essential nature of the
Board's actions.
(a) The Board's actions are Quasi-Judicial providing:
i. an interested party is provided notice and hearing;
ii. judgement of the Board is contingent on the
consideration of evidence made at a hearing;
iii. the Board adjudicates private rights
particular person after a hearing; and
of
a
iv. the Board's decision can be viewed as policy
application rather than policy setting.
(b) Quasi-Judicial shall include public hearings where
variances, special exceptions, site specific zoning
changes, site-specific land use amendments or other site-
specific development orders are considered.
18
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(cl Quasi-Judicial does not include comprehensive rezoning or
comprehensive plan changes affecting a large portion of
the public.
RELEVANCY - refers to the nature of testimony nad evidence offered
during a public hearing on a specific application. iF testimony or
evidence do not directly apply to the decision at hand, it is
irrelevant and should not be considered in making the decision.
RIGHT TO BE HEARD - An element of procedural due process that
allows every person an opportunity to present relevant written or
oral testimony.
-
RULES OF EVIDENCE - Refers to a large body of law that seeks to
control what can be relied on to reach a decision and what cannot
be relied on. The Rules of Evidence are relaxed in land use
hearings, but are useful references in the event there is a dispute
about the evidence presented.
SUBSTANTIVE DUE PROCESS - Refers to the impact of the decision or
regulation on an individual's property rights. It is violated by
decision making that is arbitrary and capricious or irrational, or
that does not serve a legitimate governmental purpose.
THE RECORD - All of the testimony, documents, written materials,
displays and other items that are received by the decision makers
during the course of public hearing. A complete and understandable
record is an essential element of procedural due process. Failure
to maintain such a record can invlaidate a quasi-judicial
proceeding.
ZONING/COMPREHENSIVE PLAN RELATED MATTER - means a public hearing
where the Board considers site-specific zoning changes, site-
specific comprehensive plan amendments, and other site-specific
development orders.
19
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A P PEN D I X "B"
CONDUCT OF THE BOARD
1. EX-PARTE COMMUNICATIONS: Ex-Parte communications are
presumptively prejudicial because they are inherently improper
and are anathema to Quasi-Judicial proceedings. As such:
a. All communications involving Board business must occur at
the public hearing. outside the_publiic hearing, Board
members are prohibited from discussing Board business
with all interested parties and/or their representative,
lobbyists, other Board members, or any other third party.
i. In the event a Board member receives a written Ex-
Parte communiciation, that Board member shall
immediately submit the written communication to
City staff so that it can be placed on file and any
interested party can have an opportunity to review
its contents.
b. Board members may discuss Board business with City staff
for the purpose of clarifying facts. However, Board
members are prohibited from discussing the merits of
Board business with City staff.
c. If a Board member knows or has reason to know that an
individual or other entity may become an interested party
at a future date, that Board member is prohibited from
discussing Board business with that party and/or their
representative, lobyyists other Board members, or any
other third party.
d. Board members are prohibited from polling other Board
members to attempt in any way to arrive at a consensus of
the members.
2. PERSONAL KNOWLEDGE: Board members may use their own personal
knowledge in deciding a specific case before the Board.
However, such personal knowledge should be recited in and made
part of the record in a timely manner which provides and
opportunity for refutation by an interested party.
3. VOTING OF MEMBERS: Any Board member who was absent from a
prior meeting in which a specific case was heard shall review
the record of the prior proceeding and such review shall be
acknowledged by the Board member on the record prior to taking
a vote with respect thereto.
20
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A P PEN D I X "e"
EVIDENTIARY REQUIREMENTS
1. BURDEN OF PROOF: The burden of proof in Quasi-Judicial
hearings concerning zoning/comprehensive plan related matters
shall be in accordance with all applicable local, state, and
federal law. However, notwithstanding the above mentioned,
the burden of proof shall lie as follows:
a. The initial burden is on the landowner to demostrate that
his petition or application for use of privately owned
lands (rezoning, site plan approval, etc.) complies with
the reasonable procedural requirements of the Zoning
Ordinanc and that the proposal is consistent with the
Comprehesnvie Plan;
b. Upon such showing by the landowner, the burden shifts to
the Board to demonstrate that maintaining the existing
zoning/land use classification with respect to the
property accomplishes a legitimate public purpose (not
arbitrary, discriminatory, or unreasonable);
c. After such showing by the Board, the landowner's only
recourse is to assert and prove that the actions of the
Board in denying the petition or application are
confiscatory and thereby constitutes a taking.
2. BASIS FOR BOARD DECISION MAKING: The Board is not required
but encouraged to make findings of fact in a Quasi-Judicial
proceeding involving a zoning/comprehensive plan related
matter. However, the following shall be applicable in the
Board's decision making process:
a. All interested parties should be given a full and fair
opportunity to express their views.
b. The Board must have before it competent substantial
evidence to support its findings and judgment which also
must be in accord with essential requirements of local,
state, and federal law.
c. While the Board should hear the objections of interested
parties, the Board's judgment must be based on the facts
adduced, and not on the mere polling of interested
parties.
i. The function of a quasi-jUdicial board is to make a
determination on the basis of facts adduced and
21
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upon relevant principles rather than conduct a
plebiscite of the neighbors.
ii. The merits of an application should prevail over
the disgruntlement of loud, vociferous objectors.
J. LAYMAN AND EXPERT WITNESSES: The following rules of evidence
shall serve as a Board's guideline when determining how much
weight should be afforded the testimony received in a Quasi-
Judicial proceeding.
a. General. The Board shall not consider the testimony of
a witness unless:
i. the witness has personal knowledge of the fact in
which the witness will testify to, and
ii. in the case of testimony consisting of opinions or
inferences, the testimony is qualified under
paraagraph 3.b. or J.c.
b. Layman witnesses. Testimony of a witness other than an
expert witness is qualified under this paragraph (b) only
if:
i. the witness cannot readily, and with equal accuracy
and adequacy, communicate what he perceived to the
Board without testifying in the form of opinions or
inferences; and
ii. the opinions and inferences do not require a
special knowledge, skill, experience or training.
c.
Expert Witnesses. Testimony of an
qualified under this paragraph (c)
determines:
expert witness is
only if the Board
i. whether the subject matter is proper for expert
testimony because scientific, technical, or other
specialized skill will help the Board understand
the evidence being presented, or help to establish
a fact in issue; and
ii. whether the witness is adequately qualified to
express an opinion on the matter.
d. Oualifyinq a Witness as an Expert. For purposes of
paragraph (c) of this section, a witness is qualified as
an expert witness only if the Board determines so in
accordance with the following procedure:
22
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i. an interested party has the burden of requesting,
and this request shall be made prior to proffering
the testimony, the Board to make a determination
the witness is an expert;
ii. by majority vote, the Board will determine whether
the witness satisfies the criteria in J.c. supra;
iii. if the Board determines the witness is qualified to
testify as an expert, the witness will testify and
be cross-examined for the record and the Board may
give weight and consider~tion to the expert's
opinion.
iv. if the Board determines that the witness does not
qualify to testify as an expert, or if an
interested party fails to request the Board to
determine the qualifications of the expert in
accordance with this paragraph, the witness may
still testify and be cross-examined for the record,
however, the Board shall not give any weight or
consideration to the opinion of the witness.
4. QUALIFICATIONS OF CITY STAFF. City staff members testifying
before a Board in a Quasi-Judicial proceeding must:
a. state for the record their qualifications, or
b. place on record a resume listing their qualifications.
23
,......,... ,'-~'
....~ .- ":-. ':".-~. ~:-..........-:.~..,... ... .-..- . '. ,- ._ ,,"._n _.". ...~.._ no __ _.. ........ __~_' ',_ .~ ._.. _. . _ '_n_ _,._.__ ____ _ _. ___ _._ _ ..._. ____ __ __ __
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS. FLORIDA 32708.2799
Telephone (407) 327.1800
Community Development
MEMORANDUM
TO:
John Govoruhk, City Manager
John Ketteringham, General Services Director
FROM:
Thomas Grimms, AICP Community Development Coordinator
DATE:
July 7, 1995
RE:
Quasi-Judicial Acts and Rules of Procedure
The Florida Supreme Court ruling of Snyder vs. Board of County
Commissioners of Brevard County, the ruling on Jenninqs vs. Dade
Countv and other recent developments of case law, have caused a
transi tion in public hearing proceedings for local government
relating to quasi-judicial matters.
Margo and Shirley mentioned that the Planning and Zoning
Board/Local Planning Agency and the Board of Adjustment do not have
established rules of procedure in the conduct of their meetings,
especially when they bear upon quasi-judicial matters.
I helped develop the following informational material at a previous
place where I worked. I have updated it with information from a
Growth Management Conference I attended this past April.
This information is provided:
1. for further clarification of the new laws regarding
quasi-judicial proceedings and how they relate to the
actions taken by the applicant, staff, boards, and
attorneys in these proceedings.
2. for your review and possible use as a guide for the City
Commission and advisory boards who serve in a quasi-
judicial capacity in pUblic hearings regarding rezonings,
variances, conditional uses, site specific land use
amendments, or other site-specific development requests.
1
.
EX PARTE COMMUNICATIONS AND
AVOIDANCE OF PARTIALITY
IN QUASI-JUDICIAL PROCEEDINGS
BACKGROUND: RECENT JUDICIAL DECISIONS
Whereas the 1985 Amendments to the Local Government Comprehensive
Planning and Land Development Act launched a noisy revolution in
Florida land use law, Florida Courts have begun a quiet revolution.
The quiet revolution involves the way local governments make
decisions regarding the use of individual parcels of land.
The difference between legislative and quasi-judicial decision
making is at the heart of the quiet revolution. Two recent cases
before the Florida 3rd and 5th District Court of Appeals have the
potential for greatly changing land use decision-making by local
governments.
I. THE DIFFERENCE BETWEEN LEGISLATIVE AND QUASI-JUDICIAL:
Whether a local government proceeding, such as a rezoning of
land, is legislative or quasi-judicial will depend on its
nature:
A. LEGISLATIVE ACTS:
1. The Supreme Court opinion states enactments of
zoning codes will continue to be tllegislativetl in
nature.
2. A rezoning is legislative in nature when it affects
"a large portion of the pUblic".
3. Legislative acts then are:
a. Future oriented.
b. Change existing conditions by making a new
~
2
4. The
a.
b.
c.
d.
e.
rule to be applied thereafter.
c. Applies generally, not to specific parties,
i.e. to large areas of the community.
ramifications of legislative acts are:
Due process is greatly diminished.
The general public should be heard, not just
specific parties, and standing issues have no
relevance.
Lobbying (a. k. a. ex parte contacts) is
permitted and even expected.
Notice must go to the public, but not always
to specific parties.
The standard of review is the highly
deferential "fairly debatable" rule.
B. QUASI-JUDICIAL ACTS:
1. Quasi-judicial acts are:
a. oriented to past events.
b. Investigates, declares, applies or enforces
rules.
c. Applies and enforces rules based on existing
facts.
2. Rezoning actions will be quasi-judicial in nature
if:
a. They impact only a limited number of persons
or property owners or to a specific site, e.g.
small scale rezonings.
b. They impact on identifiable parties and
interests.
c. The decision is contingent on facts arrived at
from distinct al ternati ves presented at the
hearing.
d. The decision can be functionally viewed as
"policy application" rather than "policy
setting".
3. The ramifications of quasi-judicial acts are:
a. Due process requirements are heightened.
b. Particular parties, especially affected
landowners and residents, are entitled to
notice.
c. Ex-parte communications (a.k.a. lobbying) are
prohibited.
d. Discovery and evidentiary rules may apply, at
t.
3
least in part.
e. Testimony may need to be under oath; witnesses
may be subject to cross examination.
f. The decision must be based on evidence.
g. The standard of review is the less deferential
"substantial competent evidence" rule.
C. REZONINGS AS QUASI-JUDICIAL:
Stated more fully, to the extent a particular rezoning is
quasi-judicial, the judicial standard of review is the
competent substantial evidence rule. Further, the
Supreme Court opinion states, consideration of a rezoning
affecting a small area of the community (i. e. site
specific rezoning) will now be "quasi-judicial" in
nature. Thus, a site specific rezoning is now handled in
much the same manner as a conditional use. Local
governments no longer have substantial discretion to say
"no" to a requested zoning.
Pursuant to the new 'Snyder' approach, the initial burden
is upon the landowner to demonstrate that the request for
rezoning complies with the procedural requirements of the
zoning code, and that the use sought is consistent with
the Comprehensive Plan. Upon such a showing, the local
government has the following options:
1. Approve the rezoning request; or
2. Show that the request is not consistent with the
Comprehensive Plan and deny the request; or
3. Approve a less intense or less dense zoning
designation. If the local government opts for this
alternative, the local government must show by
substantial, competent evidence that the less
intense or less dense zoning designation is
consistent with the Comprehensive Plan and is not
arbitrary and capricious.
Stated another way, the Florida Supreme Court held that:
1.
The Growth Management Act (Ch. 85-88,
Florida; a.k.a. Chap 163 Part II Florida
Local Government Comprehensive Planning
Development Regulation Act) was intended
orderly development, not to preclude it.
Laws of
Statutes,
and Land
to ensure
2. Comprehensive planning contemplates "gradual and
ordered growth, and the local government can refuse
to approve the maximum density otherwise allowable
under the plan, as long as some development
4
~
consistent with the plan is allowed."
3. The property owner is not presumptively entitled to
a land use once he/she proves it to be consistent
with the Comprehensive Plan.
4. Once the property owner proves the requested
rezoning to be consistent with the Comprehensive
Plan, the burden shifts to the government, but only
to prove that the existing zoning "accomplishes a
legitimate public purpose."
a. Should the local government deny a rezoning:
i.
The legitimate purpose is proven
showing that the rezoning denial was
arbitrary, discriminatory
unreasonable.
by
not
or
Further:
ii. The standard of review is the "competent
substantial evidence" rule, not the
"clear and convincing evidence" rule.
iii. The government is not required to make
findings of fact.
II. TYPES OF LAND DEVELOPMENT ORDERS/CHANGES REGARDED AS QUASI-
JUDICIAL IN NATURE:
A. Variances.
B. site Plans.
C. Conditional Use Permits.
D. Plat Approvals.
E. Comprehensive Plan amendments (that are small in area or
in affecting numbers of people)
III. SPECIAL PROBLEMS IN QUASI-JUDICIAL HEARINGS:
POWERS OF THE QUASI-JUDICIAL BOARD:
A. Authority of a Board.
The board's authority is limited to that authority
delegated to it in the Zoning Ordinance or the Land
Development Regulations. [See 82 Am.Jur.2d Zoninq and
Planninq 283 #23 (1976). "The board does not have
untrammeled discretion to determine whether to issue a
permit, yet the board does have a certain degree of
discretion and does not perform a purely ministerial
junction." Id. at nn. 24 and 26)
5
~
\
B. Guidelines of a Board of Adjustment.
A Board of Adjustment cannot make up new and "creative"
standards guiding its discretion, because "Boards of
Adjustment have no power to legislate." MaYflower
Property. Inc. vs. city of Fort Lauderdale, 137 50.2d 849
(Fla. 2s DCA 1962). To do so would be nothing short of
bureaucratic osmosis. Further, the board has no
authority to determine the validity of a Zoning
Ordinance. Vestal-Penn Enterprise vs. Cohen, 397
N.Y.5.2d 466 (App. Div. 1977).
C. Focus of the Board.
A board has authority only to determine whether to issue
a permit based on the conditions or standards for
issuance with the Comprehensive Plan. Town of
Indialantic vs. Nance, 400 50.2d 37, 39 (Fla. 5th DCA
1981), approved, 419 50.2d 1041 (Fla. 1982), discusses
the difference between concepts such as substantial,
competent evidence, and satisfaction of a standard or
condition, e.g. - unnecessary hardship.
IV. JENNINGS VS. DADE COUNTY
PROCEEDINGS:
ITS EFFECT ON QUASI-JUDICIAL
One particular aspect of quasi-judicial proceedings, the issue
of ex-parte contacts, or "lobbying" was the subj ect of a
widely discussed case, Jenninqs vs. Dade County, 589 So. 2d
1337 (Fla. 3d DCA 1991) rev. den., 598 So. 2d 75 (Fla. 1992),
which opinion was issued just 5 days before the Fifth District
Court of Appeals issued its "Snyder' opinion.
In Jenninqs vs. Dade County, a complaint was filed with the
court claiming that during a a zoning variance application
(conditional use, a.k.a. special exception), which courts have
held to be a quasi-judicial administrative action, the
landowner's representaive had "lobbied" the Dade County
Commission outside (ex parte) the public hearing. The Court
indicated such ex parte communication is to be avoided where
they are identifiable but went on to say:
"We recognize the reality that commissioners are
elected officials in which capacity they may
unavoidably be the recipients of unsolicited
ex parte communications regarding quasi-judicial
matters they are to decide. The occurence of such
a communication in a quasi-judicial proceeding does
not mad ate automatic reversal. Nevertheless... upon
the aggrieved party's proof that ex parte contact
occurred, its effect is presumed to be prejudicial
t.
6
.
unless the defendent proves the contrary by
competent evidence."
A. 'Jennings' held that:
1. An ex-parte contact with a quasi-judicial officer
is presumed to be prejudicial, and
2. Upon proof of it, the aggrieved party is entitled
to a new hearing unless the defendant proves the
contact was in fact not prejudicial.
B. 'Jennings' and other cases suggest that a quasi-judicial
zoning proceeding will meet due process requirements if:
1. Parties are provided notice;
2. Parties are provided the opportunity to be heard;
3. Parties are able to present evidence;
4. Parties are abe to cross examine tlwitnesses"; and
5. Parties are informed of all the facts upon which
the quasi-judicial body acts.
[Id at 1341; Coral Reef Nurseries. Inc. vs. Babcock Co.,
410 So. 2d 648, 652 (Fla. 3d DCA 1982)
V. BOARD OF COUNTY COMMISSIONERS, BREVARD COUNTY VS. SNYDER - ITS
EFFECT ON QUASI-JUDICIAL PROCEEDINGS:
A. The standards to be applied to zoning hearings are those
which apply to quasi-judicial hearings of administrative
bodies. The requirements of due process are applicable
to all procedural questions.
B. "After Snyder, the courts have announced their intent to
apply "strict scrutiny" to the actions and records of the
local governmental body, and it is a safe prediciton that
all of the standards of due process, including
impartiality, will be incorporated into that scrutiny."
[March 24, 1994 written statement to 6th Annual Advanced
Growth Management Short Course sponsored by the Florida
Chamber of Commerce)
VI. SNYDER/JENNINGS COMBINED AS TAG TEAM:
Because "Snyder' declares that, at least, small rezonings are
quasi-judicial, and 'Jennings' says that ex-parte contacts are
"presumed prejudicial", the following applies:
A.
The governing body or advisory boards
from obtaining community input by
communications from its citizens.
will be prohibited
way of ex-parte
B. 'Jennings' states that "Ex-parte communications are
7
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'-t
inherently improper and are anathema to quasi-judicial
proceedings. Quasi-judicial officers should avoid all
such contacts where they are identifiable.
VII. RESPONSIBILITIES OF THE GOVERNING BODY, OTHER BOARDS, STAFF IN
QUASI-JUDICIAL MATTERS:
A. DECISION MAKERS
1. Application of Government in the Sunshine
requirements apply to quasi-judicial bodies.
2.
Ex-parte communications
decision maker is to be
be presumed prejudicial.
between
avoided,
a party and a
because it could
3. Any written correspondence received should be
acknowledged during the public hearings on such
matters and made a part of the public record.
Additionally, it should be made available to anyone
interested in reviewing the correspondence. For
example, if a board member receives an oral or
written ex-parte communication, it is not presumed
prejudicial; provided that the date and substance
of the communication and with whom it occurred is
divulged on the record at the beginning of a public
hearing.
David A. Theriaque, attorney with Apgar, Pelham,
Pfeiffer & Theriaque law firm, notes that "The
rationale that applies to written communications
between a commissioner and staff applies to letters
written to a commissioner regarding a matter
pending before the commission. While such
communications are clearly ex parte, if the
procedures set forth regarding staff communications
are followed, a party would be hard-pressed to
prove prejudice. By providing interested parties
with copies of the letters before the hearing and
introducing the letters into evidence at the
beginning of the hearing, all parties will have the
opportunity to address the information contained in
those letters. Again, the fundamental due process
issue is whether the parties have been informed of
all the facts upon which the commission acts. This
approach satisfies that requirement and still
allows the commissioners to open and read their
mail without fear of receiving ex parte
communication. .Another issue regarding written
communications to commissioners is whether such
communications can be considered competent
8
~
..
substantial evidence. A strong argument can be
made that only evidence which is provided under
oath and subject to cross-examination can be
considered to be competent substantial evidence. A
wri tten communication fails on both prongs. "
[March 24, 1995 written statement to 6th Annual
Advanced Growth Management Short Course sponsored
by the Florida Chamber of Commerce)
4.
Telephone
manner as
as to any
calls should be avoided in the same
personal conversations with individuals
quasi-judicial matter.
David A. Theriaque, attorney with Apgar, Pelham,
Pfeiffer & Theriaque law firm, makes the following
observation: "Oral ex parte communications will
inevitably happen. A commissioner should attempt
to halt any oral ~ parte communication once he or
she realizes that the speaker is addressing a
matter pending before the commission. After the ex
parte communication occurs, the commissioner should
take steps similar to those associated with a
written ~ parte communication. The commissioner
should write a memorandum stating the date, time,
individual involved, and content of the ex parte
communications. That memorandum should then be
placed in the file maintained by staff and made
available for public inspection, and provided to
all interested parties known to be involved in the
matter. Al though probably not required, I
recommend that the ex parte communication be
revealed at the onset of the quasi-judicial
hearing. These steps should greatly reduce the
likelihood that a party could prove prejudice from
the ex parte communication. [March 24, 1995
written statement to 6th Annual Advanced Growth
Management Short Course sponsored by the Florida
Chamber of Commerce)
5. Logs indicating merely support or opposition of a
matter should not be maintained by the decision
maker or its staff, nor should the information be
announced during public hearing.
6. If the decision maker or its staff believes there
may be some merit to any relevant information
received by these communications, it is recommended
that the decision maker request the staff, an
appropriate party or witness, address the issue and
ei ther verify, explain or deny the information
during the public hearing.
9
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7. If information from a site visit or other common
historical knowledge known to the decision-maker is
considered in making a decision, that information
must be disclosed at the beginning of the hearing.
(It has been deemed inappropriate for individual
board members to drive by a site to view the lay of
the land regarding a specific case. However, the
full board, at the same time, may visit a site if
the visit is advertised ahead of time and disclosed
at the public hearing.)
David A. Theriaque, attorney with Apgar, Pelham,
Pfeiffer, & Theriaque law firm, takes the following
view " A site visit is not a communication, and,
thus, there are no ex parte concerns. Obviously,
this conclusion is valid only if the commissioner
is unaccompanied during the site visit and does not
discuss the matter with anybody else who happens to
be on the site. I recommend that after the site
visit, the commissioner write a memorandum stating
the date and time that he or she visited the site,
place the memorandum in the file maintained by
staff and made available for public inspection, and
provide the memorandum to all interested parties
known to be involved in the matter. . There is
concern, however, about whether a site visit
violates the requirement that a commissioner base
his or her decision on evidence introduced during
the quasi-judicial hearing. A site visit provides
information outside of the quasi-judicial hearing.
Therefore, a conservative approach would be for
commissioners to not view the site." [March 24,
1995 written statement to 6th Annual Advanced
Growth Management Short Course sponsored by the
Florida Chamber of Commerce)
8. In most cases, staff or some other knowledgeable
person attending the hearing should be asked to
verify any information which may be appropriate to
alleviate any concerns about the competency of the
evidence and to allow appropriate questioning
regarding the matter by the decision maker.
9. C. Allen Watts, attorney with Cobb, Cole & Bell,
points out that "Ex parte contact during the actual
pendency of a proceeding is only one way in which
bias or prejudice can be suggested. Due process
requires that if there is other evidence that a
member of a body is not impartial, a procedure must
be available to remove that member. Few ordinances
now provide such a procedure." .He notes "An
impartial decison maker is a basic constituent of
10
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minimum due process. (Meqill vs. Board of Reqents,
541 F.2d 1073 (5th Cir. 1976). However, there is
no per se constitutional rule disqualifying
administrative hearing bodies. The record must
support actual partiality of the body or its
individual members, and in the absence of evidence
to the contrary, a reviewing court will assume that
the administrative body acted independently and
properly. (Duke vs. North Texas state Universitv,
469 F. 2d 829 (5th Cir. 1972). [March 24, 1994
written statement to 6th Annual Advanced Growth
Management Short Course sponsored by the Florida
Chamber of Commerce]
B. STAFF
1. Role of the Staff.
Staff's role is in general, neither to be proponent
or opponent of a request, but an advisor to ensure
that the Comprehensive Plan and Land Development
Regulations are properly followed.
2. Advisor to Decision-maker.
As advisor to the decision-maker, staff members
should provide factual background and plan and code
analysis for the decision-maker. That analysis may
include a recommendation either supporting,
supporting with certain modifications, or opposing
a zoning request, variance, or conditional use
permit.
3. Staff Reports.
A local governing body is not bound by departmental
reports (Graham Companies vs. Dade Countv, Case No.
93-163AP, 2 Fla. L. Weekly Supp. 241, 242 (Fla.
11th Cir. ct. Apr. 22, 1994). However, when the
report is unrefuted or when there is no contrary
information, it appears that the reports must be
accepted. Id.
4. Substantial Competent Evidence.
Additionally, the decision-maker's decision will
stand only if it is supported by substantial
competent evidence which often may be provided by
staff. In making presentations, staff should
ensure that all relevant facts to the matter are
placed into the record as evidence, and at the
conclusion of the presentation, the evidence and
11
opinions should be summarized.
5. staff Expertise.
In the respect that staff has a particular
expertise such as in traffic, fire safety, or
environmental engineering, and is called upon to
give his/her knowledge or advice in the specific
area of expertise, staff is then viewed as
competent, expert witness in the public hearing
process.
6. Staff Response.
If staff statements are rebutted by another party,
staff should:
a. Prepare to respond and attempt to overcome the
rebuttal;
b. Present evidence to clarify or overcome the
testimonYi
c. Ask any relevant questions to ensure that all
relevant information is before the decision-
makeri and
d. If an answer is unknown, staff appropriately
should indicate the fact.
7. Board Member/Staff Communication.
According to David A. Theriaque, attorney with
Apgar, Pelham Pfeiffer & Theriaque, "all
communications, including those with staff, which
are conducted outside of a quasi-judicial
proceeding are ~ parte communications. . Staff
communications have the potential to be biased
either in favor of development or in favor of the
environment _ consequently, ex parte information
provided to commissioners may be tainted in such a
fashion as to further the goals of the staff."
8. Exceptions to Board Member/Staff Communications.
David Theriaque does note that "The fact that such
communications are ex parte does not preclude all
communications between staff and commissioners. A
legitimate distinction can be drawn between oral
and written ex parte communications. While there
should be no oral communications, I do not believe
that 'Jennings' precludes all written
communications provided the following measures are
taken:
12
1. If a commissioner requires information from
staff, the request should be made in writing,
placed in the file maintained by staff and
made available for public inspection, and
provided to all interested parties known to be
involved in the matter.
2.
Staff must respond in writing
provide a copy of the response
parties and place a copy
maintained by staff.
and similarly
to interested
in the file
3 .
A copy
staff's
evidence
of the commissioner's request and
response should be entered into
at the quasi-judicial proceeding.
While it is true that such written communications
are ex parte communications, providing copies to
all interested parties at the time the written
communication is made and at the beginning of the
public hearing should remove any prejudice.
Interested parties will have the opportunity to
refute information which they believe to be
inaccurate. It is difficult to envision a court
holding that written ex parte communications
coupled with these procedures were prejudicial to a
party." [March 24, 1995 written statement to 6th
Annual Advanced Growth Management Short Course
sponsored by the Florida Chamber of Commerce)
VIII.
HEARING REQUIREMENTS/CONDITIONS:
A.
Quality of Due Process.
It is well established that quasi-judicial hearings do
not require the same quality of due process as that to
which a party is entitled in a judicial hearing. (Goss
vs. Lopez, 419 U.S. 565 (1975); Jenninqs, 589 SO. 2d at
1340; Lee County vs. Sunbelt Equities, 619 So. 2d 996
(Fla. 2d DCA 1993). However, certain standards of basic
fairness are necessary to afford adequate due process.
(Handlev vs. Department of Administration, 411 So. 2d 184
(Fla. 1982); Jenninqs, 589 So. 2d at 1340.
B. Rules of Evidence.
A quasi-judicial hearing requires that the parties must
present evidence, cross examine witnesses, and be
informed of all facts upon which the decision maker acts.
However, strict rules of evidence and procedure are not
required for such proceedings as is required in a
13
judicial hearing.
C. Rules of ' Procedure.
The chair of quasi-judicial proceedings has the
challenging role of maintaining order in a hearing of
this type. In order to maintain proper order in a public
hearing, fairly detailed procedures are helpful to guide
the process.
D. Immunity.
Most type of immunity which may apply to an official in
this type of hearing is determined by the
characterization of the activity in the particular case
under consideration. Generally, absolute immunity has
been applied to local legislators for conduct in
furtherance of their duties. Further, absolute immunity
has been granted in cases where the decision-maker is
operating in a quasi-judicial setting. This is
distinguished from persons acting in an administrative
function who have been entitled to qualified or "good
faith" immunity. However, a qualified immunity defense
will not be available if the commissioner or board member
knowingly conducted the business in violation of the law
or acted with malice.
The above points were held in the following cases,
respectively: Hernandez vs. city of Lafayette, 643 F.2d
1188 (5th cir. unit A, 1981), cert. den. 455 U.S. 907
(1982); Ellis vs. Coffey County Board of Reqistrars, 981
F.2d 1185 (11th Cir. 1993); Bay tree of Inverrary Realty
Partners vs. city of Lauderhill, 873 F.2d 1407 (11th Cir.
1989); Butz vs. Economou, 438 U.S. 478 (1978); on remand
466 F. Supp. 1351 (S.D.N.Y. 1979); Akins vs. Deptford
Township, 813 F. Supp. 12098 (D. N.J. 1993), aff'd 17
F.3d 1428 (3d Circ. 1994); Kinderhill Farm Breedinq
Assoc. vs. Appel, 450 F. Supp. 134 (S.D. N.Y. 1978);
Adler vs. Lynch, 415 F. Supp. 705 (D. Neb. 1976); Crymes
vs. DeKalb County, 923 F. 2d 1482 (11th Cir. 1991); and
Espanola Way Corp. vs. Meyerson, 690 F.2d 827 (11th Cir.
1982), cert. den, 460 U.S. 1039 (1983).
NOTE:
The categorization of these actions as quasi-
judicial would appear to imbue the decision
makers with absolute immunity based on the
'Butz' decision and its progeny, but this
issue has not been addressed since the
'Snyder' decision.
E. Examples of Unacceptable Testimony by Residents:
14
The comments of witnesses must be probative or competent
as to whether the standards in the ordinance have been
satisfied. Comments by neighbors that they don't want a
project approved, and that it will generate heavy
traffic, for example, or light and pollution problems, in
and of themselves are not competent statements, because
neighbors are usually not expert in traffic or
environmental engineering. Thus, neighbors are not
competent witnesses, unless a neighbor states on the
record what his credentials are as a traffic or
environmental engineer, or what the basis of his
testimony is.
F. Expressions of Mass Opinion at Quasi-Judicial Hearings:
How many times have you been at a hearing when someone
gets up and asks the question "How many people here
oppose this project"? Everybody in the room raises their
had except the developer, developer's attorney, the
permitting board, the planner, and the board attorney.
Acceptable behavior? Definitely not.
The fact that there may be a large number of objectors to
the approval of a permit or other quasi-judicial decision
is not a sound basis for the denial of a permit, no
matter how strenuous the objections. The function of
quasi-judicial boards or a governing body acting in a
quasi-judicial capacity must be exercised on the basis of
facts adduced and upon appropriate zoning principles and
objectives as set forth in the Zoning Ordinance and is
not to be based on a mere poll or plebiscite of the
neighbors.
The merits of the application, rather than the number of
opponents, must be the controlling consideration. since
quasi-judicial hearings involve a board determination
that certain standards set for in the Zoning Ordinance
have been met, requiring an affirmative vote of the
neighbors may be unconstitutional as an improper
delegation of legislative authority. Gardiner vs.
stanley Orchards, 432 N.Y.S. 2d 335 (1980).
Local governing bodies and boards acting in a quasi-
judicial capacity should base their decisions on fact and
not indulge in "government by applause meter" A.A.
Profiles. Inc. vs. city of Fort Lauderdale, 850 F.2d 1483
(11th Cir. 1988).
G. Examples of Acceptable Testimony by Residents:
In city of Fort Lauderdale vs. Multidyne Medical Waste
Manaqement, 567 So.2d 955 (Fla. 4th DCA 1990), rev.
15
denied, 581 So.2d 165 (Fla. 1991), the following
testimony opposing a medical waste incinerator facility
was found sufficient to support the City commission's
denial of the permit:
1. Letter from a law professor claiming to be an
expert in the field of air pollution;
2. Testimony of a veterinarian who claimed to have
expertise related to incineration and disposal of
infectious medical waste.
Another example involved a case in which a court
determined that a board of zoning appeals, in determining
the high water mark at a specific location, can accept
testimony of neighbors who were eyewitnesses to the tides
and waves as more persuasive than the testimony of expert
witnesses. Mack vs. Municipal Officers of Cape
Elizabeth, 463 A.2d 717 (Me. 1983). In effect the
eyewitnesses become tlexpert witnesses".
Plainly, statements of neighbors regarding the effect of
a development on their quality of life is also
admissible. Citv of st. Petersbura vs. Cardinal
Industries Development Corp., 493 So.2d 535, 538 (Fla. 2d
DCA 1986); Graham Companies vs. Dade County, Case No. 93-
163AP, 2 Fla. L. Weekly Supp. 241, 2542 (Fla. 11th Circ.
ct. Apr. 22, 1994). Lay citizens have the ability to
testify how conditions in a neighborhood have changed
over time, if they have witnessed those changes.
H. Testimony Regarding Factors Outside the Standards for
Approval.
Lay testimony about subjects that a lay witness is not
competent to testify to, or mere personal opinions do not
constitute substantial, competent evidence. Graham
Companies, 2 Fla. L. Weekly Supp. at 242-43. Other cases
involve situations in which there is opinion testimony
presented that does not relate to the criteria in the
ordinance for granting a permit. This type of tesitmony
should be ignored. Friendship Neiahborhood Coalition vs.
District of Columbia Board of Zonina Adiustment, 403 A.
2d 291 (DC App. 1979) (Commissioner of Advisory
Neighborhood Commission testified that grant of a special
exception for a parking lot was "the wrong kind of
expansion". )
So that a reviewing court can ascertain the competence of
a witness, the witness should state at the public hearing
who they are, what their ability is to testify to a
particular matter, and what the source of their
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16
information is.
I. Cross Examination of Witnesses:
In 'Jennings', the Court noted that the quality of due
process required in a quasi-judicial zoning proceeding is
not the same as that to which a party to full judicial
hearing is entitled. The court stated:
"A quasi-judicial hearing generally meets basic
due process requirements if the parties are
provided notice of the hearing and an opportunity
to be heard. In quasi-judicial zoning proceedings
the parties must be able to present evidence,
cross-examine witnesses, an be informed of all
facts upon which the (government agency) acts."
The parties referenced in such opinion are the applicant
and the government agency. The 'Jennings' decision does
not, in any way, recognize a right on behalf of all
neighboring property owners to cross-examine any and all
individuals who may speak for or against a zoning
application. To recognize such a right on behalf of all
"interested" persons would create a cumbersome, unwieldy
procedural nightmare for local government bodies.
J. Assuring a Complete Record by Staff in Quasi-Judicial
Hearings:
One of the primary staff goals of hearings is to ensure
that relevant facts and evidence are in the record for
the decision maker's consideration. The following items
should always be entered into the record by the staff:
1. The agenda packet or staff report.
2. The most recent copies of resumes of those speaking
on the matter.
3. Relevant documents and comments entered into the
record at a prior board meeting.
4. Correspondence and reports from others directed to
any decision maker, department or staff person
regarding the substance of the hearing (should be
placed in a reading file and made available to the
public prior to the public hearing).
NOTE: It is staff's responsibility to ensure that a
complete agenda packet or staff report is
included in the record. Also, staff resumes
need to be updated as necessary to accurately
reflect the position, education and experience
of those staff members who are involved in
making recommendations and materials for the
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17
decision maker's consideration in the public
hearings. Further, at the hearing, if a
particular issue is likely to be raised, a
qualified staff member should be available to
answer the questions.
K. staff Restrictions on Ex Parte Discussions:
Is staff subject to the restrictions on ex parte
discussions which are placed on parties? It would
appear so, if they are considered parties to the
proceeding. If they are not parties, it would appear
that advisory staff is not prohibited to talking to
decision makers in private, although conversations with
the applicant, the public and other potential parties to
the proceeding should not be discussed with the decision
maker to avoid doing indirectly what cannot be done
directly. This is similar to restrictions on staff
discussions with a decision maker regarding comments of
other decision makers under the "Government in the
Sunshine" laws. (Chapter 286 Florida statutes; Blackford
vs. School Board of Oranqe Countv. 375 So. 2d 578 (Fla.
5th DCA 1979).
L. Attorneys:
Ex parte restrictions under the' Jennings' decision would
not prohibit contact with the decision maker as that
attorney's client, although it may limit the ability to
convey any comments from discussions with various parties
to a decision maker.
Testimony from attorneys representing parties in quasi-
judicial hearings has not generally been considered
competent substantial evidence. (National Advertisinq
Company vs. Broward Countv, 491 So. 2d 1262 (Fla. 4th DCA
1986) .
Rule 4-3.7 of the Rules Regulating the Florida Bar
states:
(a) When Lawyer May Testify. A lawyer shall not
act as advocate at a trial in which the lawyer
is likely to be a necessary witness on behalf
of the client except where:
(1)
(2)
The testimony relates
issue;
The testimony will
matter of formality
reason to believe
to an uncontested
relate solely to
and there is no
that substantial
18
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evidence will be offered in opposition to
the testimony;
(3) The testimony relates to the nature and
value of the legal services rendered in
the case; or
(4) Disqualification of the lawyer would work
substantial hardship on the client.
(b) Other Members of Law Firm as Witnesses. A
lawyer may act as advocate in a trial in which
another attorney in the lawyer's firm is
likely to be called as witness unless
precluded from doing so by Rule 4-1.7 or 4-1.9
The use of "trial" in the Rule would appear to limit
application of this Rule to judicial hearings and not
quasi-judicial hearings. Thus, there appear to be no
ethical prohibition to attorney testimony in quasi-
judicial hearings subject to other general limitations
based on the attorney/client relationship.
M. Voting Requirement at Meetings of Governmental Bodies:
Under present Florida law, a member of decision making
body generally must vote on an issue. Florida statutes
286.012 provides the broad requirements regarding voting
and states as follows:
"Voting requirement at meetings of governmental
bodies No member of any state, county, or
municipal governmental board, commission or agency
who is present at any meeting of any such body at
which an official decision, ruling or other
official act is to be taken or adopted may abstain
from voting in regard to any such decision, ruling,
or act; an a vote shall be recorded or counted for
each such member present, except when, with respect
to any such member, there is, or appears to be, a
possible conflict of interest under the provisions
of 112.311, 112.313, or 112.3143 Florida Statutes.
In such cases, said member shall comply with the
disclosure requirements of 1121.3143 F.S.tI
Florida statutes 112.3143(3) sets forth specific
restrictions on voting for local public officials and
provides in relevant part as follows:
"No county, municipal or other local public officer
shall vote in his official capacity upon any
measure which would inure to his special private
gain; which he knows would inure to the special
private gain of any principal by whom he is
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19
retained or to the parent organization or
sUbsidiary of a corporate principal by with he is
retained, other than agency as defined in
112.312(2); or which he knows would inure to the
special private gain of a relative or business
associate of the public officer."
Chapter 120 Florida statutes,
Procedure Act" states:
The "Administrative
"Notwithstanding the provisions of 112.314 3 F. S.
any individual serving alone or with others as an
agency head may be disqualified from serving in an
agency proceeding for bias, prejudice or interest
when any party to the agency proceeding shows just
cause by a suggestion filed within a reasonable
period of time prior to the agency proceeding."
Florida Statutes 112.311 provides in part:
"(1) It is essential to proper conduct and
operation of government that public officials be
independent and impartial and that public office
not be used for private gain other than the
remuneration provided by law. . .
"(2) .The law against conflict of interest
must be designed as not to impede unreasonably or
unnecessarily the recruitment and retention by
government of those best qualified to serve.
Public officials should not be denied the
opportunity, available to all other citizens, to
acquire and retain private economic interests
except when conflicts with the responsibility of
such officials to the public cannot be avoided."
While mandatory voting requirements may be appropriate in
legislative hearings, it is opinioned that they may be
inappropriate in quasi-judicial settings if a hair
hearing is not possible with a member of the decision
making body voting. It may be unclear whether very
general language in 112.311 F. S. could be applied to
allow an exemption to 286.012 F.S.; therefore, should any
voting member question whether they have a conflict of
interest, that voting member should seek legal opinion
from the attorney representing the governing body.
N. Voting by Members Who Were Not Present at the Original
Hearing; New Board Members:
It has been generally held that a members may vote
although he was not present to hear the evidence. 82 Am.
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20
Jur. 2d Zoninq and Planninq #313 (1976). The idea is
that the board is continuous in nature, and even a change
in membership on the board does not disturb the board's
continuity. (The foregoing statement is in the context
that evidence had been presented at a previous hearing on
the same matter.)
However, a member who has not attended a (previous)
hearing on the matter, should not vote, unless he has
examined all the evidence at the hearing.
In summary, so long as competent understanding exists on
the part of a new board member or a regular board member
(who had been absent at the first hearing in which a
zoning matter was heard), he would vote on the matter
after he has examined the evidence, based on the premise
that the second or third hearing he was in attendance at
would have data, cumulative in nature, provided.
o. Final Orders:
Any motion upon which the board votes in deciding the
case, application, or other request, should contain
specific findings of fact and conclusions of law (drawn
from the City's Code of Ordinances) indicating the
factual and legal basis for the motion. These findings
of fact and conclusions of law would thereafter be
incorporated into a written document stating the decision
of the board on the application or case.
P. Files to be Maintained.
All evidence (documentation including reports, letters,
photos, plans, etc.) admitted at the hearing and the
original document setting forth the decision of the
board, is to be maintained in a separate file
constituting the record of the case. Upon approval by
the board, the minutes of that portion of the meeting
concerning the case shall be placed in the record. The
record is to be kept in the custody of the clerk of the
board at all times, whereby the public may examine the
file in the Office of the Clerk at all reasonable times.
CONCLUSION:
It is important to remember that quasi-judicial hearings are
not intended to and not required to be held to the same degree
of formality as a full judicial hearing. However, certain
21
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.'
,
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Section 5.
Conflict.
All ordinances or parts of ordinances not specifically in
conflict herewith are hereby continued in full force and effect,
but all ordinances or parts of ordinances in conflict herewith are
hereby repealed.
section 6.
Effective Date.
This
adoption, with
of the City of
ordinance shall immediately take effect upon
a quorum present and voting, by the City Commission
Winter Springs, Florida, this day of June, 1995.
CITY OF WINTER SPRINGS
John Bush, Mayor
ATTEST:
Margo Hopkins, City Clerk
First Reading
Posted
Second Reading and Public Hearing
i
minimum restrictions related to ex parte discussions and
procedural requirements are applied. The importance is in
establishing compliance with the comprehensive plan and land
development regulations on all quasi-judicial matters which
are presented to a Council/Commission and administrative
boards, accomplished via evidentiary rules and the
"substantial competent evidence rule" vs. the "highly
debatable deferential rule" for decision making.
"The 1995 legislature is considering remedial amendments which
would clarify the 'Jennings' problem for county and municipal
zoning officials. Some of these proposals would allow
officials to continue participation, but require that any
written materials submitted ex parte be made part of the
record, and would require that summaries of any oral
conversations be submitted and made part of the record. Such
legislative actions, assuming they meet the requirements of
constitutional due process, will eliminate much of the fear
and uncertainty that have enveloped zoning officials and their
counsel since the 'Jennings' and 'Snyder' decisions." [March
24, 1994 written statement by C. Allen Watts, attorney with
Cobb, Cole & Bell, to 6th Annual Advanced Growth Management
Short Course sponsored by the Florida Chamber of Commerce]
22
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF WINTER SPRINGS
ENACTING A NEW SECTION 2-42 OF THE CODE OF
ORDINANCES, CITY OF WINTER SPRINGS, FLORIDA
IMPLEMENTING THE PROVISIONS OF SECTION
286.0115, FLORIDA STATUTES, ESTABLISHING A
PROCEDURE FOR EX PARTE COMMUNICATIONS FOR
LOCAL PUBLIC OFFICIALS CONCERNING QUASI-
JUDICIAL MATTERS, PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, section 286.0115(1), Florida Statutes, provides
that a municipality may adopt an ordinance or resolution removing
the presumption of prejudice from ex parte communications with
local public officials [as "local public official" is defined in
286.0115(2), F.S] by establishing a process to disclose ex parte
communications with such officials; and
WHEREAS, the city of winter Springs desires to implement
286.0115, F. S. by establishing a process to disclose ex parte
communications with such officials.
NOW, THEREFORE, be it ordained by the Mayor
and City Commission of the City of Winter
Springs, Florida:
Section 1.
officials.
Communications
with
local
public
Communications with local public officials regarding quasi-jUdicial
matters shall be governed by the following:
Any person not otherwise prohibited by statute, charter provision,
or ordinance may discuss with any local public official
representing the City of winter Springs the merits of any matter on
which action may be taken by any board or commission on which the
local public official is a member. Such communication shall not
raise any presumption of prejudice provided that the following
process of disclosure occurs:
1.
The subject
communication
and substance of any
with a local public
ex parte
official
.
~
representing the City of Winter Springs which
relates to quasi-judicial action pending before the
official, as well as the identity of the person,
group or entity with whom the communication took
place, is disclosed and made a part of the record
before final action is taken on the matter.
2. A local public official representing the City of
winter Springs may read a written communication
from any person; however, a written communication
that relates to quasi-judicial action pending
before such official shall be made a part of the
record before final action is taken on the matter.
3. Local public officials representing the City of
Winter Springs may conduct investigations, make
site visits and receive expert opinions regarding
quasi-judicial action pending before them, provided
that such activities and the existence of such
investigations, site visits, or expert opinions are
made a part of the record before final action is
taken on the matter.
4. Disclosure made pursuant to paragraphs 1,2,3 must
be made before or during the public meeting at
which a vote is taken on such matters, so that
persons who have opinions contrary to those
expressed in the ex parte communication are given a
reasonable opportunity to refute or respond to the
communication. This section does not subject local
public officials to Chapter 112, Part III, F.S. for
not complying with this subsection.
Section 2.
Applicability to Chapter 112, Part III,
Florida Statutes.
286.0115(3), Florida statutes does not subject local
public official to Chapter 112, Part III, Florida Statutes for non-
compliance.
Section 3.
Rules.
286.0115, -Florida Statutes does not restrict the
authority of any board or commission to establish rules or
procedures governing public hearings or contacts with local public
officials.
Section 4.
Severability.
If any part of this ordinance is declared invalid by a
court of competent jurisdiction, such part or parts shall be
severable, and the remaining part or parts shall continue in full
force and effect.