HomeMy WebLinkAbout4764 Quasi-judicial and legislative land use hearing proceduresOrdinance No. 2024-4764
An ordinance of the City of Sanford, Florida relating to ex parte
communications and quasi-judicial and legislative hearing
procedures; providing for legislative findings and intent; providing for
procedures and processes relating to ex parte communications and
quasi-judicial and legislative hearing procedures; providing for
implementing administrative actions; providing for a savings
provision; providing for conflicts; providing for severability; providing
for codification and the correction of scrivener's errors and providing
for an effective date.
Whereas, in the case of Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3rd
DCA 1991), the Third District Court of Appeal concluded that proof of an ex parte
communication by a quasi-judicial officer creates a rebuttable presumption of prejudice
unless proven otherwise by competent evidence by the officer and that the person
affected adversely by the decision, therefore, is entitled to a new and complete hearing,
unless the party defending against a new hearing can show that the communication was
not, in fact, prejudicial; and
Whereas, in 1995, the Florida Legislature adopted Section 286.0115, Florida
Statutes, to deal with the problems presented by the Jennings case for local elected public
officials and, in adopting the statute, the Legislature expressed its concern, in the
preamble to Chapter 95-352, Laws of Florida, that:
; and
"local elected public officials have been obstructed or impeded from the fair
and effective discharge of their sworn duties and responsibilities due to
expansive interpretations of Jennings v. Dade County, a decision rendered
by the Third District Court of Appeal[.]"
Whereas, Section 286.0115(1)(a), Florida Statutes, provides as follows
; and
"A county or municipality may adopt an ordinance or resolution removing
the presumption of prejudice from ex parte communications with local public
officials by establishing a process to disclose ex parte communications with
such officials pursuant to this subsection or by adopting an alternative
process for such disclosure. However, this subsection does not require a
county or municipality to adopt any ordinance or resolution establishing a
disclosure process."
Whereas, pursuant to Section 286.0115(1)(c), Florida Statutes:
"Any person not otherwise prohibited by statute, charter provision, or
ordinance may discuss with any local public official 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. if adopted by county or municipal ordinance
or resolution, adherence to the following procedures shall remove the
presumption of prejudice arising from ex parte communications with local
public officials.
1. The substance of any ex parte communication with a local public
official which relates to quasi-judicial action pending before the official 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 a part of the record before final action on
the matter.
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; and
2. A local public official may read a written communication from any
person. However, a written communication that relates to quasi-judicial
action pending before a local public official shall not be presumed prejudicial
to the action, and such written communication shall be made a part of the
record before final action on the matter.
3. Local public officials 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 investigation, site visit, or expert opinion is made a part of
the record before final action on the matter.
4. Disclosure made pursuant to subparagraphs 1., 2., and 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 subsection does not subject local public
officials to part III of chapter 112 for not complying with this paragraph."
Whereas, Subsection (2) of the statute provides for quasi-judicial proceedings
on local government land use matter:
"(a) Notwithstanding the provisions of subsection (1), a county or
municipality may adopt an ordinance or resolution establishing the
procedures and provisions of this subsection for quasi-judicial proceedings
on local government land use matters. The ordinance or resolution shall
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provide procedures and provisions identical to this subsection. However,
this subsection does not require a county or municipality to adopt such an
ordinance or resolution.
(b) In a quasi-judicial proceeding on local government land use matters, a
person who appears before the decisionmaking body who is not a party or
party -intervenor shall be allowed to testify before the decisionmaking body,
subject to control by the decisionmaking body, and may be requested to
respond to questions from the decisionmaking body, but need not be sworn
as a witness, is not required to be subject to cross-examination, and is not
required to be qualified as an expert witness. The decisionmaking body
shall assign weight and credibility to such testimony as it deems
appropriate. A party or party -intervenor in a quasi-judicial proceeding on
local government land use matters, upon request by another party or party -
intervenor, shall be sworn as a witness, shall be subject to cross-
examination by other parties or party -intervenors, and shall be required to
be qualified as an expert witness, as appropriate.
(c) In a quasi-judicial proceeding on local government land use matters, a
person may not be precluded from communicating directly with a member
of the decisionmaking body by application of ex parte communication
prohibitions. Disclosure of such communications by a member of the
decisionmaking body is not required, and such nondisclosure shall not be
presumed prejudicial to the decision of the decisionmaking body. All
decisions of the decisionmaking body in a quasi-judicial proceeding on local
; and
government land use matters must be supported by substantial, competent
evidence in the record pertinent to the proceeding, irrespective of such
communications."
Whereas, the purpose of the statute is to require public officials to disclose ex -
parte communications in order to assure an adverse party the opportunity to confront,
respond, and rebut any such disclosures so as to prevent any appearance of impropriety
such as in the case of City of Hollywood v. Hakanson, 866 So. 2d 106 (Fla. 4th DCA
2004), and to implement the general doctrine of law that a judge shall not initiate, permit,
or consider ex parte communications, or consider other communications made to the
judge outside the presence of the parties concerning a pending or impending proceeding;
and
Whereas, in 1993, the Florida Supreme Court decided the case of Board of
County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993), which
changed the method local governments use to review and process land development
applications, especially for rezonings and site and development plan approvals; and
Whereas, the Florida Supreme Court in Snyder stated that decisions relating to
rezoning and other land use decisions legislative in nature when affecting "a large portion
of the public" and the decision involves the setting of general policy, but that a rezoning
and other land use decisions are quasi-judicial in nature when the decision impacts a
limited number of persons of identifiable parties and interests and when the decision can
be viewed as policy application, rather than policy setting; and
Whereas, in broad terms, those actions which can be characterized as setting
policy as opposed to implementing policy will be considered legislative while decisions
implementing an adopted policy will be considered quasi-judicial; and
Whereas, when a land use decision is quasi-judicial, the decision must be
supported by competent substantial evidence which was defined in the Florida Supreme
Court case of DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957) as evidence that will
establish a substantial basis of fact from which the fact at issue can be reasonably inferred
and relevant evidence that a reasonable mind would accept as adequate to support a
conclusion; and
Whereas, competent substantial evidence at quasi-judicial land use hearing
can be derived from professional planning staff and comments from the Planning and
Zoning commission, expert testimony from non -staff professionals and lay testimony as
long as it is not mere statements of public support or opposition and is fact -based
testimony which are relevant to the land use issues under consideration; and
Whereas, testimony by attorneys representing parties in quasi-judicial hearings
generally does not constitute evidence and is deemed to be mere argument; and
Whereas, the City of Sanford has complied with all requirements and
procedures of Florida law in processing and advertising this Ordinance.
Now, Therefore, Be It Enacted By The People Of The City Of Sanford, Florida:
Section 1. Legislative findings and intent.
The City Commission of the City of Sanford hereby adopts and incorporates into
this Ordinance, as legislative findings and intent, the recitals to this Ordinance and City
staff report and City Commission agenda memorandum relating to this Ordinance.
Section 2. New provisions; ex parte communications and quasi-judicial
and legislative land use hearing procedures. New sections of the Code of Ordinances
of the City of Sanford (City Code), are added to read as follows:
QUASI-JUDICIAL AND LEGISLATIVE LAND USE HEARING PROCEDURES
Designation; short title; common name.
This Ordinance shall be designated and known as the "City of Sanford Quasi -Judicial and
Legislative Land Use Hearing Procedures Ordinance" and shall be applicable to all City
Commission and board meetings at which a quasi-judicial hearing takes place on an
application for zoning or other land development order and appeals of administrative
orders, adjudicatory decisions relating to procurement, purchasing and other matters.
This Ordinance is not applicable to legislative matters or purely administrative matters
where the rights of a person are not at issue and standards to apply to evidence derived
from a particular case when an adjudication is not being made. This Ordinance is not
applicable to the code enforcement special magistrate proceedings of the City which shall
be controlled by the procedural rules adopted or relating thereto, but may apply to an
appointed special magistrate or hearing officer involved in a quasi-judicial proceeding.
Ex parte communications.
(a). Intent. Pursuant to Section 286.0115, Florida Statutes, this Section is
intended to eliminate the presumption of prejudice that may result from ex parte
communications with the Mayor, City Commission and City board members and to permit
site visits, the receipt of expert opinions, and the reading of mail and other
communications relating to applications for zoning and other land development orders,
and appeals of administrative orders as authorized by this Code and other controlling law.
(b). Definitions. As used in this Ordinance, the following terms are defined as
follows:
(1). Applicant means an individual, corporation or other authorized
representative, including the City staff, which files an application or an
appeal which initiates a quasi-judicial proceeding.
(2). Application means an application for a site-specific rezoning,
variance, special exception, conditional use permit or other request for land
development approval, an appeal of an administrative order or a denial of
an application, as authorized by the City's land development regulations, or
an appeal as authorized by this Code and other controlling law.
(3). Chair means the mayor, unless otherwise provided, and the
chairperson of the Planning and Zoning Commission, the Historic
Preservation Board, or any similar board, and may apply to an appointed
special magistrate or hearing officer involved in a quasi-judicial proceeding.
(4). Member means the Mayor, another Member of the City
Commission or the Planning and Zoning Commission, the Historic
Preservation Board, or any similar board.
(5). Party means the applicant and the City staff unless an
opponent to the application seeks a determination from the Chair that the
person or entity should be granted status as a party under the controlling
provisions of law relating to standing.
(6). Public participant means a person who appears at any quasi-
judicial hearing including, but not limited to, a member of a homeowner's
association, an officer or member of an environmental, homebuilding or
development association, or a concerned citizen's organization, an official
or employee of a governmental entity other than the City, a developer, a
property owner, or an interested citizen, as well as any representative or
attorney for any of the foregoing. A public participant does not include the
applicant, a City official or City staff.
(7). Quasi-judicial hearing means a public proceeding on an
application for a zoning designation or map change, or any other land
development permit, or an appeal from an administrative action on an
application for a land development order or development permit, substantial
compliance determination, an appeals as authorized by this Code or other
controlling law, or any other matter in which the City is required by law to
give notice and an opportunity to be heard to parties and adversely affected
persons, to investigate facts, and to make findings of fact and conclusions
of law.
(8). Site visit means an inspection of the real or other property by
the Mayor, a City Commissioner or a City board member that is the subject
of an application for a quasi-judicial order, determination or appeal. The
mere act of driving by a site in the regular course of driving to a particular
location, such as to work or shopping, which is not undertaken for the
purpose of inspecting the particular property is not a site visit for purposes
of this Ordinance.
(9). City official means the Mayor, a member of the City
Commission or any City board that is authorized to make findings of fact,
conclusions of law and to enter an order on any application or appeal that
requires a quasi-judicial hearing and includes, when making a quasi-judicial
decision, a special magistrate or hearing officer.
(10). City staff means an employee or agent of the City.
(c). Ex parte communications between City officials, applicants and public
participants. If any person, not otherwise prohibited by statute, charter or ordinance,
communicates with any City official in any manner other than publicly at a quasi-judicial
hearing regarding the merits of any matter on which action may be taken by the council
or a board on which the City official is a member, the communication shall not create a
presumption of prejudice provided that the following disclosures are made:
(1). The name of the communicator, and the time, place and substance
of the communication. The disclosure shall be made a part of the record
before final action is taken on the matter.
(2). If a written communication from any person; provided, however, a
written communication that relates to a quasi-judicial action pending before
the City official is read, it shall be made a part of the record before final
action is taken on the matter.
(3). If a City official communicates with an expert witness, City staff
member, or consultant, conducts an investigation, makes a site visit or
receives expert opinions regarding quasi-judicial action pending before him
or her, the activities and the existence of the investigations, site visits, or
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expert opinions shall be disclosed and made a part of the record before final
action is taken on the matter.
(4). Disclosure, either written or oral, made pursuant to subsections (of
this Section must be made before or during the public meeting at which a
vote is taken and must be made a part of the record. Persons who have
opinions contrary to those expressed in the ex parte communication shall
be given a reasonable opportunity to refute or respond to the
communication.
Quasi-judicial hearing procedures.
(a). Purpose. It is the purpose of this Section to provide a fair, open and impartial
procedure for the conduct of quasi-judicial hearings by the City Commission, the Planning
and Zoning Commission, the Historic Preservation Board, and any similar board. Unless
otherwise provided by law, quasi-judicial hearings shall be conducted substantially as
provided in this Section. The purpose of this Section is not to deter or discourage any
public comments or public input and the City reaffirms its commitment to open,
transparent and participatory proceedings with the fullest engagement of the public
consistent with the controlling provisions of law.
(b). Proceedings.
(1). Legal representation. Applicants, and others permitted to have party
status, may be represented by legal counsel who shall announce their
presence at the commencement of a proceeding and shall provide the
following information: his, or her, name and address; whether the person
speaks on his, or her, own behalf, or on behalf of another person,
association or entity which shall be named (and whether party status is
asserted).
(2). City legal representation. The City Commission, the Planning and
Zoning Commission, the Historic Preservation Board, or any similar board
shall be advised by the City Attorney unless the City Attorney has procured
special legal services for a specific matter.
(3). Participants at hearings.
(I). Parties. All persons who have been identified and recognized as
a party who testify on any application must sign in and be sworn by
the presiding officer, clerk or counsel. All parties testifying subject
themselves to cross examination and shall provide the following
information: his, or her, name and address; whether the person
speaks on his, or her, own behalf, or on behalf of another person,
association or entity (and whether party status is asserted); if the
person represents a third party, the person shall also identify the third
party and whether the person is authorized to speak on its behalf and
whether the views expressed by the speaker represents an
established policy of the third party that has been approved by the
principal or its governing body; and whether the person is, or will
receive, compensation for appearing at the hearing, and whether the
person or any immediate family member, or an entity in which he or
she has a controlling interest, has a financial interest in the pending
matter.
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(II). Public Participants. All persons who wish to participate as public
participants are not required to be sworn in and are not subject to
cross examination. All public participants are subject to normal City
requirements relating to public participation.
(c). Conduct of hearing. All quasi-judicial hearings shall be recorded by
mechanical means, audio or video, by the City subject to the provisions of this Ordinance.
A court reporter may be retained and paid for by any interested person to transcribe the
proceedings. Any person may order and pay for a transcript of the proceedings and when
a party or participant commissions a court reporter to attend a City meeting they are
deemed to have consented to any person purchasing a copy. The court reporter shall
identify himself or herself to the City Attorney before the hearing and shall, by virtue of
reporting the meeting on City premises, be deemed to agree to sell a copy of the transcript
to any person requesting to purchase a price at normative pricing. The order of hearing
shall be as follows:
(1). The chair shall read a preliminary statement once at the beginning
of the quasi-judicial public hearing agenda, announce the particular agenda
item, and open the public hearing. The chair shall conduct the meeting, and
all questions shall be asked through the chair unless cross examination
occurs with regard to a party or is allowed by the chair as to a participant.
The rulings of the chair may be overturned by motion and majority vote of
the other members of the body.
(2). The City staff providing testimony and all persons identified as or
seeking recognition as a party asking to speak shall fftay be sworn at the
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time the matter is brought on for hearing or as determined by the chair.
Attorneys shall not be sworn unless an attorney intends to testify to facts or
to offer an expert opinion as the statements of attorneys shall be deemed
argument and not evidence unless otherwise specifically provided.
(3). The chair shall decide any parliamentary objections and objections
to evidentiary matters with the advice of the City Attorney and subject to
being overturned by motion and majority vote of the other members of the
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(4). The City staff shall present its report, which shall be made part of the
record which report shall include the qualifications of each City staff member
participating in the report or testifying at the proceeding.
(5). The applicant shall present her, his, their or its case.
(6). Parties and public participants in support of the application shall
present their testimony and any evidence and comments.
(7). Opponents who are deemed a party shall have the right to cross
examine speakers who are a party or present evidence for a party.
(8). Parties and public participants in opposition shall present her, his,
their or its testimony and evidence and comments.
(9). The applicant shall have the right to cross examine individual
speakers who are a party or who are presenting evidence for a party.
(10). Members may ask questions of a speaker at any time through the
chair or under the supervision of the chair.
141. ;
(11). City staff shall be given time for rebuttal if requested. City staff shall
have the right to cross examine the applicant and others who are a party or
present evidence for a party.
(12). The applicant shall be provided with time for rebuttal if requested.
(13). The chair shall close the public hearing, Members shall discuss the
matter in public, make or accept proposed findings of fact and conclusions
of law, and render a decision. No further presentations or testimony will be
permitted after the chair closes the hearing unless directed by the City
Attorney or unless the chair elects to reopen the hearing upon majority vote
of the entire body.
(d). Record of the hearing. Following the final disposition of the application or
appeal, all evidence admitted at the hearing, the application or appeal file, staff reports,
the approved order and ex parte disclosures shall be maintained in a separate file which
shall constitute the record on the matter. The record will be made available to the public
for inspection upon request at any time during normal business hours. It is the burden of
a party to a proceeding to ensure that a verbatim record is made available for use upon
appeal and the City neither takes or accepts any obligation to provide for court reporter
or similar services in any way, shape or form. To the extent that the City engages in audio
or video recording of proceedings, the City makes no assurance and provides no
guarantee to any person or party that the equipment of the City will function appropriately
or that any recording of an audio or video nature of a hearing or proceeding will be
successfully accomplished.
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Legislative hearing procedures.
(a). The ordinance enactment procedure relating to legislative land use matters,
such as those relating to amendments to the City's Comprehensive Plan and
comprehensive or area -wide rezoning actions, shall be conducted consistent with the
normative ordinance enactment processes and procedures of the City.
(b). Legislative determinations at such hearing require that fundamental policy
decisions be examined or re-examined.
(c). Normative land use legislative considerations are whether it is socially
desirable to reformulate policies previously formulated for the orderly growth of the
community; the likely impact that the proposed amendment will have on traffic, utilities,
other services, and future capital expenditures; and whether the action would be deemed
to be arbitrary and capricious.
(d). Disclosures of ex parte communications are not required.
Motions To Reconsider; Quasi -Judicial Hearings; Legislative Hearings.
(a). Actions taken as to approving or denying a matter adjudicated at a quasi-
judicial hearing may be reconsidered by means of a motion for reconsideration made at
a date no later than the conclusion of the next meeting of the body. A motion which is
made and fails at the initial meeting of the body at which action was taken precludes a
motion being made at the next meeting. If a motion is not made at the initial meeting, the
City Manager, and designee(s), shall ensure that no final action is taken such as, by way
of example only, the recording of documents in the Official Records of Seminole County
(Land Records) until after the conclusion of the next meeting of the body has concluded.
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If a motion is made, and is passed, at the initial meeting of the body, the matter may be
reheard and redetermined at that meeting or continued to a subsequent meeting. If a
motion to reconsider is made, and is passed, at the next meeting of the body, the
responsible City staff shall take all necessary and appropriate actions to readvertise, as
needed, and re-agendize the matter for a subsequent meeting of the body at which the
matter shall be heard. A motion to reconsider shall require a second to the motion in order
to be acted upon and may only once be made. A motion to reconsider shall be a debatable
motion.
(b). Actions taken as to approving or denying a matter determined at a
legislative hearing may be reconsidered by means of a motion for reconsideration made
no later than the conclusion of the meeting of the body of the body at which the action
was approved or disapproved. A motion which is made and fails precludes a motion being
made at any other time. Any action to amend the legislative decision will require a new
legislative process to be initiated and new action to be taken. If a motion is made, and is
passed, the matter may be reheard and redetermined at that meeting or continued to a
subsequent meeting. If a motion to reconsider is made, and is passed together with a
motion to continue the matter, the responsible City staff shall take all necessary and
appropriate actions to readvertise, as needed, and re-agendize the matter for a
subsequent meeting of the body at which the matter shall be heard. A motion to
reconsider shall require a second to the motion in order to be acted upon and may only
once be made. A motion to reconsider shall be a debatable motion.
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Section 3. Implementing Administrative Actions.
Without limiting in any way the other provisions of this Ordinance, the City
Manager, or designee(s), is hereby authorized and directed to implement the provisions
of this Ordinance and to take any and all necessary administrative actions to bring into
effect the provisions of this Ordinance.
Section 4. Savings.
The prior actions of the City of Sanford relating to ex parte communications and
quasi-judicial and legislative land use hearing procedures, and any and all similar or
related matters, procedures or processes, are hereby ratified and affirmed.
Section 5. Severability.
If any section or portion of a section of this Ordinance proves to be invalid, unlawful
or unconstitutional, it shall not be held to impair the validity, force or effect of any other
section or part of this Ordinance.
Section 6. Conflicts.
All ordinances or parts of ordinances in conflict with this Ordinance are hereby
repealed.
Section 7. Codification; Scrivener's Errors.
(a). The provisions of Section 2 of this Ordinance shall be codified as
determined to be appropriate by the Code codifier and all other sections shall not be
codified said codification to be in either the City Code or Land Development Regulations
of the City in the discretion of the Code codifier.
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(b). The sections of this Ordinance may be renumbered or re -lettered and the
words of this Ordinance may be changed to section, article or some other appropriate
word or phrase to accomplish codification in the absolute discretion of the Code codifier.
(c). Typographical errors and other matters of a similar nature that do not affect
the intent of this Ordinance, as determined by the City Clerk and City Attorney, may be
corrected with the authorization of the City Manager, or designee, without the need for a
public hearing.
Section 8. Effective Date.
This ordinance shall become effective and be enacted immediately upon its
passage and adoption.
Passed and adopted this 22,d day of January, 2024.
Attest: 5.;: ;C,ity Commission f of the City of
c,r Sanf �d, Flo i a
Traci Houchin, MMC, FCRM Ar�Wood�uff� /
City Clerk Mayor
For use and reliance of the Sanford
City Commission only. Appypvep as to form and legality.
im L. Colbert, Ztp-Vrney
OCA
19 1
• CITY OF
SkNFORD
FLORIDA �nnr�n
CITY COMMISSION MEMORANDUM 24.023
JANUARY 22, 2024 AGENDA
To:
PREPARED BY:
SUBMITTED BY:
SUBJECT:
W S _ RM X
Item No.7'�
Honorable Mayor and Members of the City Commission
Anthony Raimondo, Director of Development Services
Norton N. Bonaparte, Jr..
Quasi -Judicial and Legis
Ordinance No. 2024-476
STRATEGIC PRIORITIES:
❑ Unify Downtown & the Waterfront
❑ Promote the City's Distinct Culture
® Update Regulatory Framework
❑ Redevelop and Revitalize Disadvantaged
SYNOPSIS:
s Ordinance;
Approval of Ordinance No. 2024-4764, relating to quasi-judicial and legislative land use hearing
procedures, is requested.
FISCALISTAFFING STATEMENT:
There would be no staff or other costs associated with the enactment of Ordinance No. 2024-4764.
However, having procedures in place relating to quasi-judicial and legislative land use hearings
could reduce the potential costs of legal actions and should, also, assist in training activities relating
to the Planning and Zoning Commission and the Historic Preservation Board.
BACKGROUND:
The City Commission has not enacted an ordinance that addresses quasi-judicial and legislative
land use hearing procedures and has addressed procedural issues on an ad hoc basis over the years.
It is normative, however, to formalize procedural issues and, particularly, address the issue of ex
parte communications. The proposed Ordinance No. 2023-4764 would enact procedures relating
to those matters.
In the case of Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3rd DCA 1991), the Third District
Court of Appeal concluded that proof of an ex parte communication by a quasi-judicial officer
creates a rebuttable presumption of prejudice unless proven otherwise by competent evidence by
the officer and that the person affected adversely by the decision, therefore, is entitled to a new
and complete hearing, unless the party defending against a new hearing can show that the
communication was not, in fact, prejudicial. In 1995, the Florida Legislature adopted Section
286.0115, Florida Statutes, to deal with the problems presented by the Jennings case for local
elected public officials and, in adopting the statute, the Legislature expressed its concern, in the
preamble to Chapter 95-352, Laws of Florida, that "local elected public officials have been
obstructed or impeded from the fair and effective discharge of their sworn duties and
responsibilities due to expansive interpretations of Jennings v. Dade County, a decision rendered
by the Third District Court of Appeal[.]"
Section 286.0115(1)(a), Florida Statutes, provides as follows:
A county or municipality may adopt an ordinance or resolution removing the
presumption of prejudice from ex parte communications with local public officials
by establishing a process to disclose ex parte communications with such officials
pursuant to this subsection or by adopting an alternative process for such disclosure.
However, this subsection does not require a county or municipality to adopt any
ordinance or resolution establishing a disclosure process.
Pursuant to Section 286.0115(1)(c), Florida Statutes:
Any person not otherwise prohibited by statute, charter provision, or ordinance may
discuss with any local public official 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.
If adopted by county or municipal ordinance or resolution, adherence to the
following procedures shall remove the presumption of prejudice arising from ex
parte communications with local public officials.
1. The substance of any ex parte communication with a local public official which
relates to quasi-judicial action pending before the official 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 a part of the record before final action on the matter.
2. A local public official may read a written communication from any person.
However, a written communication that relates to quasi-judicial action pending
before a local public official shall not be presumed prejudicial to the action, and
such written communication shall be made a part of the record before final action
on the matter.
3. Local public officials 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 investigation,
site visit, or expert opinion is made a part of the record before final action on the
matter.
4. Disclosure made pursuant to subparagraphs 1., 2., and 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
subsection does not subject local public officials to part III of chapter 112 for not
complying with this paragraph.
Subsection (2) of the statute provides for quasi-judicial proceedings on local government land use
matter:
(a) Notwithstanding the provisions of subsection (1), a county or municipality may
adopt an ordinance or resolution establishing the procedures and provisions of this
subsection for quasi-judicial proceedings on local government land use matters.
The ordinance or resolution shall provide procedures and provisions identical to
this subsection. However, this subsection does not require a county or municipality
to adopt such an ordinance or resolution.
(b) In a quasi-judicial proceeding on local government land use matters, a person
who appears before the decision-making body who is not a party or party -intervenor
shall be allowed to testify before the decision-making body, subject to control by
the decision-making body, and may be requested to respond to questions from the
decision-making body, but need not be sworn as a witness, is not required to be
subject to cross-examination, and is not required to be qualified as an expert
witness. The decision-making body shall assign weight and credibility to such
testimony as it deems appropriate. A party or party -intervenor in a quasi-judicial
proceeding on local government land use matters, upon request by another party or
party -intervenor, shall be sworn as a witness, shall be subject to cross-examination
by other parties or party -intervenors, and shall be required to be qualified as an
expert witness, as appropriate.
(c) In a quasi-judicial proceeding on local government land use matters, a person
may not be precluded from communicating directly with a member of the decision-
making body by application of ex parte communication prohibitions. Disclosure of
such communications by a member of the decision-making body is not required,
and such nondisclosure shall not be presumed prejudicial to the decision of the
decision-making body. All decisions of the decision-making body in a quasi-
judicial proceeding on local government land use matters must be supported by
substantial, competent evidence in the record pertinent to the proceeding,
irrespective of such communications.
The provisions of Ordinance No. 2024-4764 are directed at the above provision.
In any event, the purpose of the statute is to require public officials to disclose ex -parte
communications in order to assure an adverse party the opportunity to confront, respond, and rebut
any such disclosures so as to prevent any appearance of impropriety such as in the case of City of
Hollywood v. Hakanson, 866 So. 2d 106 (Fla. 4th DCA 2004), and to implement the general
doctrine of law that a judge shall not initiate, permit, or consider ex parte communications, or
consider other communications made to the judge outside the presence of the parties concerning a
pending or impending proceeding.
In 1993, the Florida Supreme Court decided the case of Board of County Commissioners of
Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993), which changed the method local
governments use to review and process land development applications, especially for rezonings
and site and development plan approvals. The Florida Supreme Court in Snyder stated that
decisions relating to rezoning and other land use decisions legislative in nature when affecting "a
large portion of the public" and the decision involves the setting of general policy, but that a
rezoning and other land use decisions are quasi-judicial in nature when the decision impacts a
limited number of persons of identifiable parties and interests and when the decision can be viewed
as policy application, rather than policy setting. In broad terms, those actions which can be
characterized as setting policy as opposed to implementing policy will be considered legislative
while decisions implementing an adopted policy will be considered quasi-judicial.
When a land use decision is quasi-judicial, the decision must be supported by competent
substantial evidence which was defined in the Florida Supreme Court case of DeGroot v. Sheffield,
95 So.2d 912 (Fla. 1957) as evidence that will establish a substantial basis of fact from which the
fact at issue can be reasonably inferred and relevant evidence that a reasonable mind would accept
as adequate to support a conclusion. Competent substantial evidence at quasi-judicial land use
hearing can be derived from professional planning staff and comments from the Planning and
Zoning commission, expert testimony from non -staff professionals and lay testimony as long as it
is not mere statements of public support or opposition and is fact -based testimony which are
relevant to the land use issues under consideration. Testimony by attorneys representing parties in
quasi-judicial hearings generally does not constitute evidence and is deemed to be mere argument.
The provisions of Ordinance No. 2024-4764 are intended to ensure that the City makes land use
decisions in a legally sustainable manner by providing processes and procedures which are
consistent with controlling law.
LEGAL REVIEW:
The Assistant City Attorney has drafted Ordinance No. 2024-4764 and has otherwise assisted in
this matter and recommends its enactment.
The City Commission approved the first reading of Ordinance No. 2024-4764 on January 8, 2024.
The City Clerk published notice of the 2nd Public Hearing in the Sanford Herald on January 14,
2024.
RECOMMENDATION:
It is the staff's recommendation that the City Commission adopt Ordinance No. 2024-4764.
SUGGESTED MOTION:
"I move to adopt Ordinance No. 2024-4764."
Attachment: Ordinance No. 2024-4764.
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��1 sry FLORIDA
Business Impact Estimate
This form should be included in agenda packet for the item under which the proposed ordinance
is to be considered, and must be posted on the City's website by the time notice of the proposed
ordinance is published.
Proposed ordinance's title/reference: An ordinance of the City of Sanford, Florida relating
to ex parte communications and quasi-judicial and legislative hearing procedures;
providing for legislative findings and intent; providing for procedures and processes
relating to ex parte communications and quasi-judicial and legislative hearing procedures;
providing for implementing administrative actions; providing for a savings provision;
providing for conflicts; providing for severability; providing for codification and the
correction of scrivener's errors and providing for an effective date.
The City is of the view that the following exception(s) to the Business Impact Estimate
requirement apply that are checked off in a box below apply to the above -referenced
proposed ordinance, although the City is implementing the procedure required by
statutory law to ensure that no inadvertent procedural issue could impact the enactment
of the proposed ordinance.
❑ The proposed ordinance is required for compliance with Federal or State law or
regulation;
❑ The proposed ordinance relates to the issuance or refinancing of debt;
❑ The proposed ordinance relates to the adoption of budgets or budget
amendments, including revenue sources necessary to fund the budget;
❑ The proposed ordinance is required to implement a contract or an agreement,
including, but not limited to, any Federal, State, local, or private grant, or other
financial assistance accepted by the
❑ The proposed ordinance is an emergency ordinance;
❑ The ordinance relates to procurement; or
❑x The proposed ordinance is enacted to implement the following:
a. Part II of Chapter 163, Florida Statutes, relating to growth policy, count
municipal planning, and land development regulation, including zoning,
development orders, development agreements and development permits:
b.
development diStFiGt-_�,
.
1 � ,
In accordance with the provisions of controlling law, even notwithstanding the fact that,
an exemption noted above may apply, the City hereby publishes the following information:
1. Summary of the proposed ordinance (must include statement of the public purpose,
such as serving the public health, safety, morals, and welfare): The ordinance provides
for normative and regular processes and procedures to address land development
matters within the City as heard by the City Commission and other City boards. Having
regular processes and procedures which can, and will, be made reference to as being
part of the City Code/Land Development Regulations during the course of meetings, by
City officers and employees as well as the development community and the general public
should provide a common point of reference to the procedures that will be implemented
during the course of quasi-judicial and legislative decisions.
2. Estimate of direct economic impact of the proposed ordinance on private, for-profit
businesses in the City: The economic impact should be positive in that the expenditure
less time and confusion should result as to all involved in land use practice and decisions
before the City as a clear reference point for City procedures will be in effect and can, in
the context of training City officials, serve as a readymade instructional tool.
3. Estimate of direct compliance costs that businesses may reasonably incur: The
compliance costs relating to City land use practice and procedures should be mitigated
and lessened as to all participants as a result of clarity and a common point of reference.
4. Any new charge or fee imposed by the proposed ordinance: None. The City fee
structure will not be modified.
5. Estimate of the City's regulatory costs, including estimated revenues from any new
charges or fees to cover such costs: As noted above, the enactment of this ordinance
should mitigate and reduce costs to all parties involved in the City's land use practices
and procedures.
6. Good faith estimate of the number of businesses likely to be impacted by the proposed
ordinance: The "impact" of the enactment of this ordinance is a positive and favorable to
all parties involved in the City's land use practices and procedures. Thus, a calculation of
impacted businesses would not be pertinent or applicable.
21 P a, _�-
7. Additional information (if any, but may wish to include the methodology used to derive
information for #1 and #2, above. For example: City staff solicited comments from
businesses in the City as to the potential impact of the proposed ordinance by contacting
the chamber of commerce, social media posting, direct mail or direct email, posting on
City website, public workshop, etc. You may also wish to include efforts made to reduce
the potential fiscal impact on businesses based on feedback from businesses. You may
also wish to state here that the proposed ordinance is a generally applicable ordinance
that applies to all persons similarly situated (individuals as well as businesses) and,
therefore, the proposed ordinance does not impose costs only upon businesses.): None.
31 - _..