HomeMy WebLinkAbout1997-28 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.
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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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
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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.
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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'
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