CITY OF DEERFIELD BEACH Request for City Commission Agenda

Transcription

1 Item: CITY OF DEERFIELD BEACH Request for City Commission Agenda Agenda Date Requested: August 20, 2013 Contact Person: Andy Maurodis Description: Resolution creating new Quasi-Judicial procedures. Fiscal Impact: N/A Budget Line Item Number and Title: N/A Required Attachment: A Cover Memo from the Department Head to the City Manager further describing the request and providing back-up information and documents. THIS SECTION RESERVED FOR PROCESSING OF THE REQUEST Ordinance X Resolution X Consent Agenda Agenda Item Type Presentation Written Request Public Hearing Public Hearing Second Reading Quasi-Judicial Public Hearing General Item Comments:

2 RESOLUTION NO. 2013/ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DEERFIELD BEACH, FLORIDA, REPEALING RESOLUTION NO. 2008/051 ADOPTED MARCH 18, 2008 RELATING TO QUASI-JUDICAL PROCEDURES; CREATING NEW QUASI-JUDICIAL PROCEDURES; CREATING SECTION 101 INTENT, SECTION 102 APPLICABILITY, SECTION 103, DEFINITIONS, SECTION 104 EX-PARTE COMMUNICATIONS, SECTION 105 GENERAL PROCEDURES, SECTION 106 ORDER OF THE PROCEEDING, SECTION 107 EVIDENCE, SECTION 108 CROSS-EXAMINATION, SECTION 109 CONTINUANCES AND DEFERRALS, SECTION 110 JUDICIAL NOTICE, SECTION 111 BASIS OF DECISION, SECTION 112 SUPPLEMENTING THE RECORD, SECTION 113 RECORD OF THE QUASI-JUDICIAL PROCEEDING, SECTION 114 APPEALS; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Commission wises to repeal Resolution 2008/051, adopted March 18, 2008 adopting quasi-judicial regulations; and WHEREAS, the City Commission wishes to adopt this resolution to update its quasijudicial regulations; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DEERFIELD BEACH, AS FOLLOWS: SECTION 1. The above referenced Whereas clauses are true and correct and made a part hereof. SECTION 2. Resolution No. 2008/051 is hereby repealed in its entirety. SECTION 3. Resolution No. 2013/ is hereby adopted to read as follows: ARTICLE IX. QUASI-JUDICIAL PROCEEDINGS Sec 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. 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. The Mayor shall see to it that quasi-judicial proceedings are conducted in substantial compliance with these rules. 1

3 Sec Applicability. Except as may otherwise be provided by statute or ordinance, or when waived, these procedures shall apply to all actions taken by the Commission regarding development orders as defined in Section 98-3, City of Deerfield Beach Land Development Code. Sec Definitions. (a) Application shall mean an application for a development permit as defined in Section 98-3, City of Deerfield Beach Land Development Code. (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 the subject of the proceeding. (c) (d) Commission shall mean the City of Deerfield Beach City Commission. Commissioner shall mean a City of Deerfield Beach City Commissioner. (e) Development order shall have the meaning set forth within Section 98-3, City of Deerfield Beach Land Development Code. (f) Development permits shall have the meaning set forth within Section 98-3, City of Deerfield Beach Land Development Code. (g) Ex-parte communication shall mean any written, oral, or graphic communication with a commissioner which may directly or indirectly relate to or which could influence the disposition of an application, other than those made on the record during a quasi-judicial hearing. (h) Expert shall mean a person who is qualified in a subject matter by knowledge, skill, experience, training, or education. (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. (j) Mayor shall mean the Mayor of the City of Deerfield Beach. The term commissioner shall include the Mayor. (k) 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 offer testimony at a quasi-judicial hearing for the purpose of being heard on an application. (l) Party shall mean the applicant, the City of Deerfield Beach and any party intervenor. 2

4 (m) Party intervenor shall mean any person or entity which will be adversely affected by the proposed development over and above the effect on the public at large. (n) 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. (o) Relevant evidence shall mean evidence which tends to prove or disprove a fact that is material to the determination of the application. (p) Staff shall mean City of Deerfield Beach staff or City retained experts or counsel or a combination thereof. (q) Witness shall mean any person who testifies under oath. Sec Ex-parte communication. (a) Authority. This section incorporates Section , F.S., as amended, which authorizes a municipality 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 ordinance 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 to a quasi-judicial action pending before the Commission shall be disclosed at the hearing or in a written memorandum filed with the City Clerk. Such oral communication is not presumed prejudicial to the action if the subject of the communication and the identity of the person, group, or entity with whom the communication took place is disclosed and made 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, shall have the opportunity to contest the accuracy of the matters disclosed. (2) Written communications. Any written communication which relates to a quasijudicial action pending before the Commission shall be disclosed at the hearing or in a written memorandum filed with the City Clerk. Such written communication is not presumed prejudicial to the action if the written communication is forwarded to the 3

5 appropriate staff for 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. Sec General procedures. (a) Quasi-judicial proceedings shall be conducted in an informal manner. If the applicant agrees with the staff recommendation, the applicant may waive his or her right to an evidentiary hearing by signing the waiver supplied by the Planning and Development Services Department. The item shall be placed on the Consent Agenda and the Commission may then vote on the item as a part of the Consent Agenda based upon any written materials submitted by the applicant and the Staff Report. If the Commission determines that it is in the best interests of the City to conduct a full evidentiary hearing the matter shall be deferred until the next Commission meeting to afford both the applicant and staff the opportunity to prepare for the evidentiary hearing unless the applicant and the staff agree that they are prepared to participate in a full evidentiary hearing at the meeting in question. (b) If the applicant does not waive his or her right to an evidentiary hearing the City shall conduct a full evidentiary hearing. If the applicant changes his or her mind regarding the waiver, the matter shall be deferred until the next Commission meeting to afford both the applicant and staff the opportunity to prepare for the evidentiary hearing. At the evidentiary hearing the applicant 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. The conduct of the quasi-judicial hearing shall be as set forth below. (c) (d) Staff shall have the responsibility of presenting the case on behalf of the City. Time limits for presentations. (1) Staff: Up to thirty (30) minutes. (2) Applicant: Up to thirty (30) minutes. (3) Participants: a. Members of the public: Up to four (4) minutes each. 4

6 b. Speakers representing an organization or a group in attendance at the meeting: Up to five (5) minutes. (4) Expert witnesses: Up to ten (10) minutes. (5) No speaker may give his or her time to any other speaker. However, at the discretion of the Mayor the time allowed for any testimony may be extended. Sec Order of the proceeding. To the extent possible, the following shall be the order of the evidentiary hearing proceeding: (a) The Mayor or the City Attorney 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. (b) The applicant, staff, and all witnesses requesting to speak shall be collectively sworn, excluding attorneys licensed to practice law in the State of Florida, unless they intend to present testimony regardless of whether the proceeding is a full quasi-judicial hearing. Participants requesting to speak will not be required, but may, at their option, be sworn as witnesses, and will not be required to be qualified as expert witnesses. Participants who are not sworn will not be subject to cross-examination. The Commission shall not assign unsworn testimony the same weight or credibility as sworn testimony in its deliberations and the Commission shall assign such unsworn testimony such weight as it deems appropriate. (c) Staff shall present its analysis, any recommendation and evidence and witnesses regarding the application. (d) The applicant shall make his or her presentation which may include witnesses and documentary evidence. (e) Participants in support of or against 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) After each person testifies and/or documents are made part of the record, the applicant, staff or any commissioner may cross-examine the witness, except that participants providing unsworn testimony may only be asked questions by the Commission. (h) (i) (j) Rebuttal by staff, if requested. Rebuttal by party intervenors. Rebuttal by applicant, if requested. 5

7 (k) The Mayor may choose to allow participants to respond to the applicant's rebuttal if the Mayor 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. (l) The Mayor, in the interest of fairness 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. (m) No further evidence will be accepted. (n) The Mayor, in his/her discretion, may allow final argument by staff and the applicant. 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. (o) Commission shall deliberate on the application. No further presentations or testimony shall be permitted, and Commissioners shall not ask any further questions of person who presented testimony. The Commission shall discuss the evidence which was presented at the quasi-judicial hearing and render a decision on the application. Although the Commission is not 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. If the Commission denies a development permit it must do so in writing and give notice to the applicant with a citation to the applicable portions of an ordinance, rule, statute or other legal authority for the denial of the permit. Sec Evidence. (a) 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 of law. (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 Commission will determine the relevancy of evidence. (d) Matters relating to an application's consistency with the City of Deerfield each Land Use Plan, a Certified Land Use Plan or the City of Deerfield Beach 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. 6

8 (f) Documentary evidence may be presented in the form of a copy of the original, if available. Sec Cross-examination. (a) Only the applicant, staff, a party intervenor, and the Commission shall be entitled to conduct cross-examination when sworn testimony is given or documents are made a part of the record. Only the Commission shall be entitled to ask question of participants providing unsworn testimony. The Commission shall not assign unsworn testimony the same weight or credibility as sworn testimony in its deliberations. (b) The applicant, staff and all witnesses providing sworn testimony are subject to crossexamination during the hearing. (c) Participants, who choose not to be sworn as witnesses, shall not be subject to crossexamination, except from the Commission as stated in subsection (a) above. (d) A participant or a witness may not question any person. However, a participant or a witness may request that the Commission ask questions of a witness. The Commission may or may not choose to ask the witness any questions requested by a participant. (e) The scope of the cross-examination shall be limited to the facts alleged by the applicant, staff or witnesses in relation to the application. (f) The Mayor may direct the party conducting the cross-examination to stop a particular line of questioning that merely harasses, intimidates, or embarrasses the individual being crossexamined. (g) The Mayor 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. (h) 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 Mayor may terminate the cross-examination. Sec Continuances and deferrals. If, in the opinion of the Mayor or any Commissioner, any testimony or documentary evidence or information presented at the hearing justifies allowing additional research or review in order to properly determine the issue presented, the Commission shall continue the hearing to a time certain to allow for such research or review and shall permit testimony and evidence regarding the matters researched or reviewed by all parties. The time limitations set herein may be extended. 7

9 Sec Judicial notice. The Commission shall take judicial notice of all state and local laws, ordinances and regulations and may take judicial notice of such other matters as are generally recognized by the courts of the State of Florida. Sec 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 and participants, any documentary and demonstrative evidence, and visual aids presented. Each Commissioner shall weigh all the relevant evidence presented, giving each piece of evidence the weight the Commissioner sees fit. Sec 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 Commission 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) If the requested material is received from someone other than the applicant, City staff will notify the applicant that the supplemental information has been received. Sec Record of the quasi-judicial proceeding. The official record of the proceeding shall be the minutes as approved by the Commission and the evidence received. All evidence admitted at the hearing shall be maintained by the City Clerk. Sec 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 (3) days of the date a final order is rendered by the Commission. If a person decides to appeal any decision with respect to any matter considered at the quasi-judicial hearing, he or she will need to ensure that a verbatim 8

10 record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is based. Anyone desiring a verbatim transcript shall have the responsibility, at his or her own expense, to arrange for the presence at the hearing of a certified court reporter. SECTION 4. If any word, phrase, clause, sentence, or section of this resolution is for any reason held unconstitutional or invalid, the invalidity thereof shall not affect the validity of any remaining portions of this resolution. SECTION 5. This resolution shall become effective immediately upon adoption. PASSED AND ADOPTED ON THIS DAY OF, JEAN M. ROBB, MAYOR ATTEST: ADA GRAHAM-JOHNSON, MMC, CITY CLERK Deerfield/Resolutions/Quasi-judicial 7/30/2013 9