Loading...
1997-28 Adopting Quasi-Judicial Proceedings RESOLUTION NO. 97-28 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF PARKLAND, FLORIDA CREATING A RESOLUTION IMPLEMENTING QUASI-JUDICIAL PROCEEDINGS; PROVIDING FOR INTENT; PROVIDING DEFINITIONS; PROVIDING PROCEDURES RELATED TO QUASI-JUDICIAL PROCEEDINGS, INCLUDING BUT NOT LIMITED TO EX PARTE COMMUNICATIONS, NOTIFICATION, CONDUCT OF HEARING, AND ORDER OF PROCEEDING; PROVIDING FOR CONTINUANCES AND DEFERRALS; PROVIDING FOR APPEALS; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Supreme Court of the State of Florida in the case of Board of County Commissioners of Brevard County v Snyder has held that certain proceedings affecting the use of land are to be determined at a quasi-judicial proceeding; and WHEREAS, quasi-judicial decision making must be based on competent, substantial evidence of record; and WHEREAS, the case of Jenninss v. Dade County, a Third District Court of Appeal case, regarding ex parte communication, determined that all ex parte communication is presumed to be prejudicial; and WHEREAS, the result of these cases has been to unduly restrict access by residents to their elected officials; and WHEREAS, in response to this restriction on the public's access to their public officials, the State legislature has enacted CSIHS 5, Section 286.0115, Florida Statutes, which provides that a county or municipality may adopt an ordinance or resolution removing the presumption or prejudice from ex parte communication with local public officials by establishing a process to disclose ex parte communication pursuant to the provisions of the act or by adopting an alternative process for such disclosure; and WHEREAS, the City Commission deems it in the best interest of the residents of the City of Parkland to adopt a resolution establishing procedures for quasi-judicial proceedings and for the disclosure of ex parte communication; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF PARKLAND, AS FOLLOWS: Section 1. This Resolution sets out the procedures for quasi-judicial hearings for the City of Parkland. ARTICLE XVII QUASI-JUDICIAL PROCEEDINGS 1-324. Intent. The intent of this resolution is to establish procedures to ensure procedural due process and maintain citizen access to the local government decision-making process relating to the approval of development orders and the approval of site specific land use plan map amendments. This policy shall be applied and interpreted in a manner recognizing both the legislative and judicial aspects of the local government decision-making process relating to site-specific parcels. 1-325. Applicability. Except as may otherwise be provided by statute or resolution, these procedures shall apply to all actions taken by the Commission regarding development orders. 1-326. Definitions. A. Application shall mean an application for a development permit or site-specific land use plan map amendment. 2 B. Applicant shall mean the owner of record, the owner's agent, or any person with a legal or equitable interest in the property which is subject to the proceeding. C. Board shall mean the City Commission or any City board or committee sitting in a quasi-judicial capacity. D. Commission shall mean the City of Parkland City Commission. E. Commissioner shall mean a City of Parkland City Commission member. F. Ex parte communication shall mean any written, oral, or graphic communication with a Commissioner which may directly or indirectly re late to or which could influence the disposition of an application, other than those made on the record during a quasi-judicial hearing. G. Expert shall mean a person who is qualified in a subject matter by knowledge, skill, experience, training, or education. H. Land Use Plan shall mean the City of Parkland Land Use Plan, the future land use element for all of the City of Parkland adopted by the City Commission of the City of Parkland in conformance with the requirements of the City Charter and the Local Government Comprehensive Planning and Land Development Regulation Act and/or the Future Unincorporated Area Land Use Plan. I. Material fact shall mean a fact that bears a logical relationship to one or more issues raised by the application or the laws and regulations pertaining to the matter requested by the application. 1. Participants shall mean members of the general public, other than the Applicant, including experts and representatives of units of local governments and governmental agencies, who 3 offer testimony at a quasi-judicial hearing for the purpose of being heard on an application K. Party shall mean the Applicant and City of Parkland. L. Quasi-judicial proceeding shall mean a hearing held by the Commission to adjudicate the private rights of an applicant by means of a hearing which comports with due process requirements. M. Relevant evidence shall mean evidence which tends to prove or disprove a fact that is material to the determination of the application. N. Staffshall mean City of Parkland stafffor site specific land use plan map amendments and the City of Parkland staff members charged with the responsibility of reviewing the application or enforcing the Board's decision on the application for development orders and development permits. O. Witness shall mean any person who testifies under oath. 1-327. Ex Parte Communication. A. Authority. This section incorporates section 286.0115, Florida Statutes, as amended, which authorizes a City to establish a process for disclosure of ex parte communication with public officials in order to remove the presumption of prejudice. B. Access Permitted Any Commissioner may choose to discuss the merits of any matter on which action may be taken by the Commission with any person not otherwise prohibited by statute, charter provision, or resolution if the Commissioner complies with the following procedures. C. Disclosure Procedures. Compliance with the following procedures shall remove the presumption of prejudice arising from ex parte communication with any Commissioner: 1. Oral Communications. The substance of any oral ex parte communication with a Commissioner which relates 4 to a quasi-judicial action pending before the Commission is not presumed prejudicial to the action if the subject of the communication and 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 on the matter. At the quasi-judicial hearing the person or persons responsible for the ex parte communication, any party to the hearing and any Participant shall have the opportunity to contest the accuracy of the matters disclosed. 2. Written Communications Any written communication which relates to a quasi-judicial action pending before the Commission is not presumed prejudicial to the action if such written communication is forwarded to the appropriate Stafffor inclusion in the official file, is included in the back-up for the quasi-judicial hearing and is disclosed on the record before final action on the matter. It shall be the responsibility of the Applicant to review the official file periodically to determine whether written ex parte communications have been placed in the official file. 3. Investigations and Site Visits. Commissioners may conduct investigations and site visits and may receive expert opinions regarding quasi-judicial action pending before them. Such activities shall not be presumed prejudicial to the action if the existence of the investigations, site visit, or expert opinion is made a part of the record before final action on the matter. D. Disclosure. Disclosures 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 5 communication. 1-328. A. B. General Procedures Quasi-judicial proceedings shall be conducted in an informal manner. Each party shall have the right to call and examine witnesses, to introduce exhibits, to cross examine opposing witnesses on any relevant matter, and to rebut evidence. C. Staff shall have the responsibility of presenting the case on behalf of the City of Parkland. D. Notice and scheduling requirements for quasi-judicial hearings held before the Board shall be provided in accordance with applicable state law and City ordinances. E. Official File. 1. All written communication received by Commissioners, their aides or Staff concerning an application, the Commission Agenda Report, any petitions or other submissions from the public, and all other documents pertaining to the application shall be kept in the official file maintained by Staff 2. The official file will be made available for public inspection upon request at any time during normal business hours. 3. The Staff report on the application shall be sent to the Commission and shall be made a part of the agenda back-up and the official file. 1-329. Order of the Proceeding. To the extent possible, the following shall be the order of the proceeding: A. The Chair shall read a preliminary statement once at the beginning of the quasi-judicial hearing portion of the agenda outlining the procedure which shall be followed. 6 B. The Applicant, Staff, and all Participants requesting to speak shall be collectively sworn excluding attorneys licensed to practice law in the State of Florida, unless they intend to present testimony. The Commission will not consider the unsworn comments of any person in its deliberations. C. If the Applicant or agent of the Applicant agrees with Staffs recommendation and wishes to waive his or her right to an evidentiary hearing, and if no Commissioner or anyone from the audience wishes to speak for or against the quasi-judicial agenda item, the Commission may vote on the item based upon the materials in the agenda back-up. D. If there is an evidentiary hearing, Staff shall present a brief synopsis of the nature of the application, introduce any additional exhibits which are not already included in the agenda back- up, summarize issues and make a recommendation. E. The Applicant shall make his or her presentation. F. Participants in support of the application shall make their presentation. Participants claiming to represent a group, organization, unit of local government or governmental agency must indicate the Participant's authority to act as a representative for the group, organization or agency. G. The presentation of the case in chieffor the application will then be considered closed, except for rebuttal as hereinafter provided. H. Participants in opposition to the application shall make their presentation. I. The presentation of the case in opposition to the application will then be considered closed, except for rebuttal as hereinafter provided. 1. After each person testifies and/or documents are made part of the record, the Applicant, Staff or any Commissioner may cross-examine the witness. 7 K. Rebuttal by Staff, if requested. L. Rebuttal by Applicant, if requested. At this time the Applicant may only rebut . statements made by the Participants and/or Staff in opposition to the application. M. The Chair may choose to allow Participants to respond to the Applicant's rebuttal if the Chair deems the response to be necessary to ensure fairness and due process. The response must be limited to issues addressed in the Applicant's rebuttal. No new issues may be raised at this time. N. The Chair, in the interest offairness and due process, may allow further responses, but the responses must be limited to issues addressed by the previous speaker. No new issues may be raised at this time. O. No further evidence will be accepted. P. Final argument by Applicant and Staff In final argument, the Applicant and Staff may refer only to facts which were admitted into evidence. Argument that refers to facts not in evidence will be disregarded by the Commission. Q. At the discretion of the Commission, the Applicant may be permitted to respond to final Staff recommendations. R. Commission shall deliberate on the application. No further presentations or testimony shall be permitted, and Commissioners shall not ask further questions of persons presenting testimony. The Commission shall discuss the evidence which was presented at the quasi-judicial hearing. and vote on the application. Although the Commission shall not be required to make findings of fact and conclusions of law, the Commission must ensure that there is competent substantial evidence in the record to support its decision. 8 1-330. A. Evidence. The Commission shall not be bound by the strict rules of evidence, or limited to consideration of evidence which would be admissible in a court oflaw. B. The Commission may exclude evidence or testimony which is not relevant, material, or competent, or testimony which is unduly repetitious or defamatory. C. The Board will determine the relevancy of evidence. D. Matters relating to an application's consistency with the City of Parkland Land Use Plan, a Certified Land Use Plan or the Broward County Land Development Code will be presumed to be relevant and material. E. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient by itself to support a finding unless it would be admissible over objection in a court. F. Documentary evidence may be presented in the form of a copy or the original, if available. Upon request, the Applicant and Staff shall be given an opportunity to compare the copy with the original. G. Only the applicant, Staff and the Commission shall be entitled to conduct cross- examination when testimony is given or documents are made a part of the record. H. The Office of the City Attorney shall represent the Commission and advise the Commission as to the procedures to be followed and the propriety and admissibility of evidence presented at the proceeding. 1-331. A. Cross-Examination. The Applicant, Staff and all Participants are subject to cross-examination during the 9 hearing. B. A Participant may not question any person. However, a Participant may request that the Commission ask questions of the witness. The Commission mayor may not choose to ask the witness any questions requested by a Participant. C. The scope of the cross-examination shall be limited to the facts alleged by the Applicant, Staff or Participant(s) in relation to the application. D. The Chair of the Commission may direct the party conducting the cross-examination to stop a particular line of questioning that merely harasses, intimidates or embarrasses the individual being cross-examined. E. The Chair of the Commission may direct the party conducting the cross-examination to stop a particular line of questioning that is not relevant and that is beyond the scope of the facts alleged by the individual being cross-examined. F. If the party conducting the cross-examination continuously violates directions from the Chair to end a line of questioning deemed irrelevant and merely designed to harass, intimidate or embarrass the individual, the Chair may terminate the cross-examination. 1-332. Continuances and Deferrals. If, in the opinion of the Commission, any testimony or documentary evidence or information presented at the hearing justifies allowiilg additional research or review in order to properly determine the issue presented, the Board shall continue the hearing to a time certain to allow for such research or review. The time limitations set forth within Section 13-63 of the City of Parkland Land Development Code may be extended for up to four weeks by the Commission. 10 1-333. Judicial Notice. The Commission shall take judicial notice of all state and local laws, resolutions and regulations and may take judicial notice of such other matters as are generally recognized by the courts of the State of Florida. 1-334. Basis of Decision. All decisions by the Commission shall be based on the evidence presented to the Commission at the quasi-judicial hearing on the application, which shall include the materials in the agenda back-up, testimony of all witnesses, any documentary and demonstrative evidence and visual aids presented. Each Commissioner shall weigh all the competent, material and relevant evidence presented, giving each piece of evidence the weight the Commissioner sees fit. 1-335. Supplementing the Record. Supplementing the record after the quasi-judicial hearing is prohibited, unless specifically authorized by an affirmative vote of the Commission under the following conditions: A. After a quasi-judicial hearing is continued but prior to final action being taken. B. If a question is raised by the Board at the hearing to which an answer is not available at the hearing, the party to whom the question is directed may submit the requested information in writing to the Commission after the quasi-judicial hearing, provided the hearing has been continued or another hearing has been scheduled for a future date and no final action has been taken by the Commission. C. The Commission will specifically identify the question to which a response is required. No additional information will be accepted. D. The supplemental information must be filed with Staff a reasonable time before the 11 continued or next scheduled hearing. E. If the requested material is received from someone other than the Applicant, Staffwill notify the Applicant that the supplemental information has been received. If time allows, Staffwill mail a copy of the supplemental information to the Applicant. F. Staff will notify those Participants to the hearing who have indicated on the record that they wish to be notified of the receipt of the supplemental information. 1-336. Record of the Quasi-Judicial Proceeding. A. Quasi-judicial proceedings shall be preserved by tape recording or other device. The official record of the proceeding shall be the minutes as approved by the Commission and the evidence received, unless a verbatim transcript is made. If the proceeding is transcribed, the transcript shall become the official record of the proceeding. Any person may request that all or part of the transcript of the proceeding be transcribed into verbatim form. In such case, the person requesting the transcript shall be responsible for the cost of production of the transcript. B. All evidence admitted at the hearing shall be maintained by the City Clerk or shall be placed in the official file as directed by the Board. The official file shall be kept in the custody of the appropriate Staff at all times during the pendency of the application. The official file and the record of the proceeding will be made available to the public for inspection upon request at any time during normal business hours. 1-337. Appeals. An appeal from a decision of the City Commission shall be by Petition for Writ of Certiorari to the Circuit Court of the Seventeenth Judicial Circuit within thirty (30) days of the date offinal action by the Commission. 12 Section 2. SEVERABILITY. If any section, part of a section, paragraph, sentence, clause, phrase or word of this Resolution is for any reason held or declared to be unconstitutional, inoperative, or void, such holdings of invalidity shall not affect the remaining portions of this Resolution and it shall be construed to have been the legislative intent to pass this Resolution without such unconstitutional, invalid or inoperative part herein, and the remainder of this Resolution after the exclusion of such part or parts shall be deemed to be held valid as if such part or parts had not been included therein, or if this Resolution or any of the provisions thereof shall be held inapplicable to any person, group of persons, property, kind of property, circumstances or set of circumstances, such holdings shall not affect the applicability thereof to arty other person, property or circumstances. Section 3. EFFECTIVE DATE This Resolution shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED THIS 17 DAY OF SEPTEMBER , 1997. ATTEST: ~"--~ SUSAN ARMSTRONG, C. .C. CITY CLERK CTIYOFP~~ 4'LI MAYOR' 13