HomeMy WebLinkAboutOrdinance 2003-185
ORDINANCE NO. 2003- I rs 5
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, REPEALING THAT PORTION OF
ORDINANCE NO. 97-4 THAT IMPLEMENTS SECTION 286.0115,
FLORIDA STATUTES, TO ESTABLISH A PROCEDURE GOVERNING
EX PARTE COMMUNICATIONS ONLY; PROVIDING FOR THE
BALANCE OF ORDINANCE NO. 97-4 TO REMAIN INTACT AND IN
FULL FORCE AND EFFECT; PROVIDING FOR SEVERABILITY;
PROVIDING FOR REPEALER; PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, by Ordinance No. 97-4, the City Commission of the City of Sunny Isles
Beach, adopted an ordinance establishing a procedure concerning ex parte communications with
local public officials relating to quasi-judicial matters and providing for adoption of quasi-
judicial hearing procedures has proved to be inordinately burdensome and has resulted in a
complication on zoning matters; and
WHEREAS, the City of Sunny Isles Beach finds it necessary and desirable to delete that
portion of the ordinance that allows for ex parte communications but would also like to continue
to have quasi-judicial hearing procedures provided for by ordinance;
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Repeal and Deletion of Section 1 of Ordinance No. 97-4. Ordinance No. 97-4
allowing for ex parte communications on certain conditions is hereby rescinded and repealed as
follows:
f~l\{ ORDIN,'\NCE OF THE CITY OF SUNNY ISLES BEf...CH,
FLORIDA IMPLEMENTINC THE PROVISIONS OF
SECTION 28'.0115, FLORlD1-... STATUTES, TO ESTABLISH
A PROCEDURE COVERNINC EX PARTE
COMMUNICf...TIONS 'VITH LOCAL PUBLIC OFFICIALS
CONCERNINC QU,......SI JUDICIAL M.......TTER8; PROVIDINC
ADOPTION OF QU,.....SI JUDICIAL HEARINC
PROCEDURES; PR-OVIDINC FOR SEVERABILITY;
PROVIDINC FOR ,....N EFFECTIVE DATE.
WHEREAS, Seetion 286.0115, Florida Statutes, enables a munieipality to adopt an
ordinanee Of fesoffition remo'ling the presumption of prejudiee recognized in Jennings Y. Dade
Cmmty from ox parte cOIlHIlllilications with local public officials (as "local public official" is
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
10/9/2003 -- 3:17 PM
1
defined in ~ 286.0115(2), FIa.Stat.) by establishing a process to disdose ex parte comrnanications
with Effieh officials; and
WHEREAS, the City of Sl:HlflY Isles Beach finds it Recessary to implem:em Section
286.0115, FIa. Stat., by establishing a proeess to diselose E9{ parte eOHHflanicatiofls
(coHHflanicatiofls made Ofl behalf of ORe side only ':/ithol:lt the presenee of the other side) with Effich
official; and
'NHERK\S, the Commission of the City of Sl:lIlflY Isles Beaeh vlishes to adopt a set of
pr-oeedures for the Commission, ffiieh other board or boards as may be aPflointed by City
Commission, and applicants to f-ollovl as it assw:nes the regulatory j1:1risdiction of zoning and other
q1:1asi judicial matters, iRell:lding those remanded by Dade COlHlty; and
NO'H, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF SUNNY ISLES BEACH, FLORIDA, ~\S FOLLO\lfS:
SectioR 1. CoItlm-1:ll1ications ':lith local public officials (as defined iR Sec. 286.0115(2),
FIa.Stat.) regarding quasi jl:ldicial matters shall be goyemed by the followiRg procedure:
~^... If any person not otherwise prohibited by statl:lte, charter provision, or ordinaRce
disoosses with any local pl:lblic official represeming the City of Sl:Hlfl-Y Isles Beach the merits of any
matter on which action may be takeR by any board, councilor commission on which the local public
official is a member, sl:lch communication shall not raise any presl:lIDption of prejl:ldice, pr-ovided
that the follO\viRg process of disclosl:li"e occurs:
1. The subjeet and substance of any e-x parte coIJ:lIm:HlicatioR ...vith a local pl:lblic
official r~resenti1'lg the City of SlHlfl-Y Isles Beach which relates to quasi jl:ldicial action pending
before the offieial, as well as the identity of the person, grOtlp or entity with whom the
communication took place, is disclosed and made a part ofthe record before [mal action is takeR on
the matter.
2. }.. local pub lie official represeRting the City of Sunny Isles Beach may read a
..flitteR eommunication from any person; how0yer, a vflitten eoll1ilRHlieation that relates to
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
10/9/2003 -- 3: 17 PM
2
ql:lasi judicial aetion pending before stich official sh.all be made a part of the record before fiRal
action is talcen on the matter.
3. ,^.. local pl:lblic official representing the City of Sl:lml-Y Isles Beaeh may conduct
mvestigations, make site visits and receive eKpert opinions r'0gar-diRg ql:lasi j1:1dicial action pending
before him or her, provided that such activities aRd the eKisteooe of such investigations, site yisits,
or eKpert opinions is made a part oHhe rceord before fiRal actiOR is taken OR the matter.
4. Diselosl:lfe made pl:lfSl:laB:t to paragraphs (1), (2) and (3) aboye must be made
before or during the pl:lblic meeting at 'Nhich a yote is taken on such matters, so that persons who
have OpiniORS eOl'ltrary to those eKpressed in the eK parte coIl1RRi:tl:ieation are giyen a reasoaable
opportunity to refute or respoad to the ooIllffi1.lIlieation.
In the event an ex parte communication inadvertently occurs with a local public official, the local
public official shall ask the party communicating to cease and desist from further communication
and if that communication took place, the local public officials shall disclose and make part of the
record the subject and substance of that communication. If a written communication is received
from any person by a local public official, that communication shall be made part of the record
before final action is taken on any matter.
Section 2. .Procedures for Conduct of Ouasi-Judicial Hearings. Unless otherwise provided by
law or by ordinance of the City Commission pertaining to a specific matter, quasi-judicial
hearings shall be substantially as follows:
QUASI-JUDICIAL PROCEDURES
City of Sunny Isles Beach, Florida
I. Purpose
It is the purpose of these rules to provide a fair, open and impartial procedure for the
consideration by members of the City Commission or such other zoning board or boards as
may be appointed by the City Commission of quasi-judicial matters in the course of quasi-
judicial proceedings.
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
10/9/2003 -- 3:17 PM
3
II. Definitions
A. Applicant - An individual, corporation or other authorized legal entity filing an
Application or an appeal that initiates a quasi-judicial proceeding, including City
Staff and the City Commission.
B. Application - An Application for a site-specific rezoning, variance, special
exception, conditional use permit, or other request for a quasi-judicial proceeding or
appeal as authorized by the City's zoning ordinance.
C. City Staff - An employee or agent of the City of Sunny Isles Beach.
D. Member - City Commission/Appointee of Commission member to any zOnIng
board.
E. Chair - Mayor, unless otherwise provided/Mayor's appointee to any zoning board.
F. City Commission - The five (5) member elected Commissioner.
G. Planning and Zoning Board - An appointed zoning board, if one is so designated by the
City Commission.
III. Quasi-Judicial Proceedings
A. Legal Representation
1. Applicants - Applicants may be represented by legal counsel.
2. The City Commission and/or the Planning and Zoning Board may be
advised by the City Attorney.
B. Participants at Hearings
All who testify on any Application must sign in and be sworn by the presiding
officer. All persons testifying subject themselves to cross-examination. Each person
who addresses the City Commission and/or the Planning and Zoning Board, other
than members of City Staff, shall give the following information:
1. Name; and
2. Address; and
3. Whether they speak for themselves, a group of persons, or a third party; if
the person says that they represent an organization, they shall also indicate
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
10/9/2003 -- 3: 17 PM
4
whether the view expressed by the speaker represents an established policy
of the organization approved by the board or governing body; and
C. Conduct of Hearing
All quasi-judicial hearings shall be recorded. 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. Any such retained court reporter
shall identify himself/herself to the City Attorney before the hearing.
The order of hearing shall be as follows:
1. The Chair or staff 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 through the Chair.
2. The Applicant, witnesses, City Staff, and all participants asking to speak
shall be sworn. Attorneys shall be excluded, unless an attorney intends to
testify.
3. The Chair shall decide any parliamentary objections and objections to
evidentiary matters with the advice of the City Attorney or special counsel.
4. The City Staff shall present its report, recommendations. offer it into
evidence, and have it made part of the record.
5. The Applicant shall present its case.
6. Participants in support of the Application shall present their testimony and
any evidence.
7. Representatives of the opposition as may be designated by the opposition, or
the Chair, if necessary, shall have the right to cross-examine individual
speakers.
8. As evidence. members may comment. ask questions of. or seek clarification
from the applicant or participants in support of the applicant or staff. or any
speaker through the Chair.
9. Participants in opposition to the Application shall present their testimony and
evidence.
10. The Applicant shall have the right to cross-examine individual speakers.
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
10/9/2003 -- 3: 17 PM
5
11. Members may comment. ask questions of: or seek clarification from the
applicant or participants in support of the applicant or staff. any speaker
through the Chair.
12. City Staff shall be given time for rebuttal, if requested. City Staff shall be
sl:lbjeet to cmss &xamiaation.
13. Any other member of the public may testify and present evidence, and are
subject to cross-examination.
14. The Applicant shall be given time for rebuttal, if requested.
15. The Chair closes the public comment portion of the meeting on the mater
upon the conclusion of the last speaker's comments hearing. Members shall
discuss the matter in public session and render a decision. No further
presentations or testimony shall be permitted unless directed by the City
Commission and/or the Planning and Zoning Board.
D. Continued Public Hearing.
In any matter where it is known that a scheduled public hearing will be continued to
a future date certain. all persons shall waive the right to repeat their comments from
the first hearing but this shall not preclude a speaker from new and different
comments and participation based on new information. or responding to such
information.
E. I). Record of the Hearing
Following the final disposition of the Application, all evidence admitted at the
hearing, the Application file, all City Staff reports, and the adopted order
promulgating the decision of the City Commission and/or the Planning and Zoning
Board shall be maintained in a separate file constituting the record of the
Application. The record shall be kept in the custody of the appropriate City Staff at
all times during the pendency of the Application. The record will be made available
to the public for inspection upon request during normal business hours.
F. Right to Representation by Counsel: Right to Translation. Right to Present
Evidence.
Any party may have the right to representation by counsel. any non-lawYer
representative shall be required to have the represented party present to verify
consent to the representation. If the represented party is not present a non-lawyer
representative shall present a properly executed power of attorney authorizing the
representation. A non-lawYer representative who fails to do either shall not be
legally recognized as authorized to bind the party s/he represents as to waiver of
informalities. agreement to conditions. agreement to defer, continue. withdraw or
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
10/9/2003 -- 3: 17 PM
6
other significant. A non-English speaking party who is unable to understand the
proceedings or speak on his or her own behalf shall be entitled to a translation of the
proceedings provided said party makes those arrangements at least five (5) days
prior to the hearing.
G. The Rules of Evidence.
The Rules of Evidence shall not be strictly observed In these quasi-judicial
proceedings.
Section 3, Severability. The provisions of this Ordinance are declared to be severable
and if any section, sentence, clause or phrase of this Ordinance shall for any reason be held to be
invalid or unconstitutional, such decision shall not affect the validity of the remaining sections,
sentences, clauses, and phrases of this Ordinance but they shall remain in effect, it being the
legislative intent that this Ordinance shall stand notwithstanding the invalidity of any part.
Section 4. Inclusion in the Code. It is the intention of the Commission, and it is hereby
ordained, that the provisions of this ordinance shall become an appendix to the City of Sunny Isles
Beach Code; that the sections of this ordinance may be renumbered or relettered to accomplish such
intentions; and that the word "ordinance" shall be changed to II section II or other appropriate word, as
required.
Section 5.
on second reading
Effective Date. This Ordinance shall be effective ten (10) days after adoption
PASSED and ADOPTED on first reading the 23rd day of October, 2003,
PASSED and ADOPTED on second reading the ~o-t-h day of,Noue.l"r\bev-, 2003.
'1\ 'FTEST:
O~~A- ~
Jane, A. ~nes, City. Clerk
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
11/612003 -- 11 :40 AM
7
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY:
;((J,!l /.~..~
-
Lynn M, Dannheisser, City Attorney
VOTE: 6-D
Mayor Edelcup
Vice Mayor Goodman
Commissioner Brezin
Commissioner Iglesias
Commissioner Thaler
Repeal of Ex Parte Communications Ord, 97-4
LMD:ch
11/6/2003 -- 11 :40 AM
Moved by: 'It L~ vY\ a ~Oy (' ~bVVtJ1-^ J
Second by: CI'\M~1 S<;\OfJfJIL 6Rz.2..1tV
(yes)~
(yes)~
(yes)~
(yes)~
(yes)~
(no)_
(no)_
(no)_
(no)_
(no)_
8