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04-26-2005 Workshop CITY OF OKEECHOBEE LAND PLANNING AGENCY WORKSHOP APRIL 26, 2005 I. Call to Order - Chairperson. Land Planning Agency Workshop, April 26, 2005, 6:00 p.m. Vice-Chairperson Hoover called the April 26, 2005 Land Planning Workshop to order at 6:00 p.m. II. Chairperson, Member and Staff Attendance - Secretary. Board Secretary Cook called the roll: . Chairperson William Ledferd Absent - with consent Vice-Chairperson Dawn Hoover Present Agency Member Daniel Creech Absent - without consent Agency Member Kenneth Keller Present Agency Member Thomas Keller Present Agency Member Christopher Mavroides Absent - without consent Agency Member Douglas McCoy Present Alternate Member Sandra Jones Present Alternate Member Devin Maxwell Present Attorney John R. Cook Present Secretary Katrina Cook Present Also present were Terry Burroughs and John Whidden, their terms will be beginning May I, 2005. I. New Business, City Planning Consultant. I. Quasi-Judicial Decisions. Mr. LaRue explained that the quasi-judicial decisions are primarily used during the consideration for zoning cases heard before the Planning Board. Mr. LaRue stated that quasi-judicial is also sometimes used during the consideration of a variance application. John Cook, City Attorney, explained that if a request is denied by the Planning Board and is appealed, ajudge will get a copy of the minutes and the tapes. Mr. Cook explained that the more discussion related to the petition the better. He explained that when recommending to deny a petition, the Board Members should note the elements of the Comprehensive Plan that the petition does not comply with. He explained that these elements can be found within the Staff Report. Mr. Cook also explained that citizen opinions are not a reason to approve or deny a petition. III. New Business, City Planning Consultant. I. Quasi-Judicial Decisions, continued. Mr. LaRue briefly discussed the applicability, burden of proof related to government and land owners, as well as competent substantial evidence. Mr. LaRue explained that the approvals or denials should reflect the facts of the law. Mr. LaRue briefly discussed limits of lay person testimony. II. Do's and Don't for Ex Parte Communications. Mr. LaRue explained to the Agency Members that they must disclose information regarding who . they talk to regarding the application. Mr. LaRue suggested that when, or if, the Agency Members are approached to discuss a petition, the Agency Members should explain that they will be able to discuss the petition during the meeting. Mr. LaRue explained that if the person still continues to discuss the petition, to be sure and note it for the record. John Cook, City Attorney, also noted that the Board Members would need to disclose who they talked to, no matter who it was. For example, if a Board Member spoke with Donnie Robertson, Public Works Director, regarding the proposed traffic impact for a zoning change, that information would need to be disclosed for the record. III. V ariances/ Administrative Appeals. a. What is a hardship and do we have to have one? Mr. LaRue explained that the Board Members should follow the variance criteria very closely. Mr. LaRue stated that the main focus for the Board Members should be that the minimum request is a lied for. Mr. LaRue also reminded the Board Members to consider if the applicant has caused the hardship. Mr. LaRue explained that if the same requests come over an 0 that we have a problem within the Ordinance and may need to be looked in to. John Cook, City Attorney, explained that there are other circumstances that the Board Members may be faced with. For instance: An applicant is wanting to replace an older mobile home that is located on a fifty (50) foot lot with a new one; the mobile home has been there for forty years; under the current codes the new mobile home wouldn't meet setbacks. Mr. Cook explained that a Variance is necessary because the City can not say that the owners can't use their property. IV. Special Exceptions/Conditional Uses. a. Criteria for Decisions. Mr. LaRue explained that a Special Exception is a use that is permitted in a particular zoning district upon showing that such a use will comply with all the conditions and standards for the IV. New Business, City Planning Consultant. a. Criteria for Decisions, continued. location or operation of the use as specified in the zoning ordinance and authorized by the approving agency. He also explained that the Special Exception has certain criteria that it must meet prior to approval. He explained that the criteria is outlined in the Staff Report for the Board Members to review. For example: A church within a residential zoning district must be located on a certain size lot. V. Comprehensive Plan Amendments. . a. Current versus proposed language. Mr. LaRue explained that Comprehensive Plan Amendments are legislative and not quasi-judicial. The process for a Comprehensive Plan Amendment is as follows: heard before the Land Planning Agency to make a recommendation to the City Council, then it goes before City Council for adoption ofthe ordinance, then it is prepared and shipped to the Department of Community Affairs (DCA), then the DCA will pass it along to the reviewing agency, then the reviewing agency will prepare the ORC (Objections, Recommendations, and Comments) report, then they send the report back to the City, the City then has sixty days to adopt the Ordinance. Mr. LaRue explained that the City is allowed to have two cycles a year to make changes to the language of the Comprehensive Plan, or to make changes to the map that are ten acres or more. VI. Questions. Agency Member Devin Maxwell questioned whether you had to disclose for the record that you made a site visit. Jim LaRue responded that you did not need to disclose a site visit; however, you would need to disclose if you made a site visit and spoke with the applicant. Vice-Chairperson Dawn Hoover questioned whether there was a way to monitor whether or not the conditions that are placed on the Special Exceptions are being followed. Mr. LaRue explained that it was normally a Code Enforcement issue to follow up on and make sure that all of the requirements are being met. Attorney Cook also noted that a Special Exception is normally approved for one property owner only; then, once the property changes hands, a new Special Exception petition will need to be applied for. IV. New Business, City Planning Consultant. - VI. Questions. Vice-Chairperson Dawn Hoover mentioned to the other Agency members that it is very important that the Agency Members have discussion regarding the petitions while they are before them. She explained that the City Council does review the Agency's minutes, and they rely on the information that is discussed during the meeting. She explained that it is important to ask questions. . Agency Member Devin Maxwell questioned whether the minutes were a verbatim or a summary. Mr. LaRue explained that the minutes are a summary of the actions taken at the meeting. Mr. Maxwell requested whether the Chairperson could call for "all in favor" of the motion, then call for "all opposed" so that the minutes could clearly reflect the decisions of each Board! Agency Member. v. ADJOURNMENT - Chairperson. There being no further items on the agenda, Vice-Chairperson Hoover adjourned the meeting at 6:55 pm. PLEASE TAKE NOTICE AND BE ADVISED that if any person desires to appeal any decision made by the Land Planning Agency with respect to any matter considered at this proceeding, such interested person will need a record of the proceedings, and for such purpose may need to ensure a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. General Services tapes are for the sole purpose of backup for official records of the Department. Á~aLrh{ J.~/'-. Dawn Hoover, Vice-Chairperson ATTEST: ~~j\ \Jì~ C CQ~L~ Katrina Cook, Secretary · PAGE -1- CITY OF OKEECHOBEE - APRIL 26, 2005 - LAND PLANNING AGENCY WORKSHOP HANDWRITTEN MI I. CALL TO ORDER - Chairperson: Meeting 6:00 p.m. II. CHAIRPERSON, BOARD MEMBER STAFF ATTENDA CE - Secretary. Presen Absent Chairperson William Ledferd Vice-Chairperson Dawn Hoover Board Member Daniel Creech Board Member Kenneth Keller Board Member Thomas Keller ) Board Member Christopher Mavroides Board Member Douglas McCoy Alternate Sandra Jones Alternate Devin Maxwell Attorney John R. Cook Secretary Katrina Cook \ '..-- Ç) ~ ~v \0-\ i\,l è-\l ~o\\n C,OOK - eXplLllYLCd. - \(l rQ~ t IS run L~d Clhd \ç ClPPJLClud - J l,tdCfsl ~*5 ì'\ll. n. L\.+C s OX'cl -tCl pº S - YrlOr.e. dLSUJSlon 15 :t-f-L y . V\/!Ih 3104 ~~pov+- th~ e I eft) e.Vl -U of'- Ju COncj} P La'Î -+ix:'L* vex +0 L 11 TO -thx apPLlcah h - (Je ')urt 11:1 no-k thCL+ . Crowd dlSCUS'5{ Cì. r QðSúh +0 QrpVC Vl ( C1..Q V2 Lj p~ . PAGE -2- III. New Business - City Planning Consultant. I. Quasi-Judicial Decisions. CV \l~ flo \r--.. - PL nnlnq Eca r-oJ -tcV -LO\)\ nc¡ txJ(1yd SOYY\Q"tl nu ~ Vély l'anŒ.L0 . a. Applicability b. Burden of Proof prcU\clt ?rOof -t+úJ QPP\ Ica Q(J lS Ca(')()\3lLf\ ~ \,\J \ t-h -the rnpVQhet13 V~ P LLlil . i. Government C\OlQJ n nLLn-t \'Y\ U~ t clQmonst r Cl--tL -thcL+ -tJ1Q ClPPLlCLL110VL . Lig l+ llrl ate . w ii. Land Owner . PAGE -3- III. New Business - City Planning Consultant. I. Quasi-Judicial Decisions, continued. c. Competent Substantial Evidence 2ltO\ì Q/\j \ ciln Cl -\-Y1CA- + ~~\¡\.) -tt'Ll ~\ (1 t \ S CltC\SIOn l:S . L^--.Ç> pO Y ~ d b '---\ 3u....V..J'S t Q Vl +- L Cl \ ev\ VlCx.._ I. Definition ii. Approvals/Denials Should Reflect Facts and Law , Ill. Limits of Lay Person Testimony r , , · PAGE -4- II. Do's and Don't for Ex Parte Communications fV\~lSt Cl\SClQSe \ n-\lo( rnCL-non , ('e. ClYOl~h q VJhO \lOlA TCt \ \<. To \(<29 o-y 01 \ () OJ +h~ QPD\\(CLYl+ - 00 m~ V\JYl L+ vO. · PAGE -5- III. V ariances/ Administrative Appeals a. What is a Hardship and Do we have to h ve one? ~ \ \O~f\j ()(! ttJ' l CL cto,)£ l Lj . , X')C\X doh ~tJ f,O+ e COn 0 f)ì \ C, - \ 7) -1tLl \'Y\lnln,lÁXYl r9 lAL<J+ Q(JP LU 0\ fu'\, .- c\\c\ T Llliu::2t +ru haxdshLp -: "~-----~_._--- JOhn CcoK-- \\J\ \-\ 0'\\ 00 \ Lo-\- - ~(-\- -tLll +he fr7 "WCl+ -\-ilLy LlLfL+ LDe th~(r p r(J(ltA~+:J · PAGE -6- IV. Special Exceptions/Conditional Uses a. Criteria for Decisions ~V\ \. \.':) \- rY\Lù eX' err r L(L - · PAGE -7- V. Comprehensive Plan Amendments a. Current Versus Proposed Language · VI. Questions PAGE -8- · PAGE -9- VII. Questions, continued. · PAGE -10- v. UJI.~S ADJOURNMENT - Chairperson Ledferd at .m. · City of Okeechobee LP A Workshop On Land Use Decision April 26, 2005 I. Quasi; Judicial Decisions a. Applicability b. Burden Of Proof i. Government ii. Land Owner c. Competent Substantial Evidence i. Definition ii. ApprovalslDenials Should Reflect Facts & Law iii. Limits Of Lay Person Testimony II. Do's and Don'ts for Ex Parte Communicatio s III. V ariances/ Administrative Appeals a. What Is A Hardship and Do We Have To Have One? IV. Special Exceptions/Conditional Uses a. Criteria For Decisions V. Comprehensive Plan Amendments a. Current Versus Proposed Language VI. Questions " . . . . ------ - - - . .;: (QUASI JUDICIAL) HEARINGS December 3, 2004 What are the standards and expectations of property owners, the p blic and decision makers in the land use determination process: · Fairness · Objective application of the local codes to the facts · Opportunity to be heard Local land use decisions are at the heart of the local government pn cess. For local government to be effective in the land use arena, there needs to be a balance bet", een the increasing formality of the process and community participation in the system. The ignificance of labeling the process as quasi-judicial' or legislative may be unclear to the public. Whether a land use decision is legislative or quasi-judicial is an important determination becaus~ that determination "affects the degree of formal procedures required during the local land use de ision making, the character of the proceeding, and the remedy when challenged to the circuit co rt." I It is fundamental that the local elected or appoihted decision makers understand the rul~ s. It is important that the applicant and the a public have an opportunity to be heard purSl ant to a local government hearing system that provides due process. The standard of review to sustain the municipality's decision ha ::. been evolving since the adoption of the Growth Management Act.2 What are Quasi-Judicial Hearin2:s Variances, conditional uses, temporary uses, code enforcement pro eedings and vested rights hearings have been historically considered quasi-judicial actions ( nd subjected to a stricter standard of review. The Supreme Court concluded in Board of County Commissioner of Brevard Countv v. Snvder, 627 So. 2d 469 (Fla. 1993), that a rezoning is quasi-judicial if: · it has an impact on a limited number of persons or prop ~rty; · it impacts identifiable parties and interests; · the decision is contingent on facts arrived at from dist ri t alternatives presented at the hearings; and 1 The Florida Bar Journal Vol. 70, No. II, page 52, "A Formal Affair: Land use De ci ion making, and Obstacles Thereto, in the Post=-Snyder Era". 2 Ch. 85-55,1985 Fla. Laws 207 (Codified at Fla. Stat. § 163.3161 {Supp. 1986}. 1 . . . . the decision can be viewed as policy application and ot policy setting. The Supreme Court applied a functional analysis and stated the rule for detennining quasi- judicial actions versus legislative actions as: "Legislative action results in the formulation of a eneral rule of policy, whereas, judicial action results in the ap lication of a general rule of policy." Since the Snyder decision, the tension is whether local land use hearings will .become more "judicial" (formal, adversarial) or lean to "quasi" - (infonnal proce ures). There is very limited guidance on the procedural requirements of a quasi-judicial in the S der case. What Can be Challem?:ed in a Quasi-Judicial Hearin2: The case law is clear that courts are limited when reviewing quasi-j dicial decisions to reviewing the record made before the local body which issued the fmal order. What is the record made-at the land use hearing? (1) testimony of the applicant and its representat ves, staff and public. The testimony is preserved by the minutes f the hearing (if the decigion is challenged, a transcript of the pr ceeding may need to be prepared); (2) written staff report; (3) all exhibits and documents provided to the bo rd. (4) the decision order of the local body The standards for judicial review oflocal government quasi-judicial actions were set forth by the Supreme Court in Educational Develo ment Center Inc. v. Cit f West Palm Beach Zonin Board of Appeals, 541 So. 2d 106 (Fla. 1989). Upon a review by the circuit court of a quasi- judicial decision by a planning commission or council, three questio s are asked: a. whether due process was afforded; b. whether the administrative body applied the c rrect law; c. whether its findings are supported by compete t substantial evidence. Therefore, the record established before the council, board or comm ssion should show that each of the three items were satisfied. Failure to satisfy anyone of the t ee can result in a reversal of the decision by the local decision maker. Requirements for Quasi Judicial Heario2:s (a) Due Process. Many local governments have procedures for quasi-judicial hearings. Quasi-judicial proceedings are not controlled by strict rules f evidence or procedure but 2 . . certain standards of basic fairness must be adhered to in der to afford due process. A quasi-judicial hearing generally meets basis due process equirements if the parties are provided notice of the hearing and an opportunity to be hard. In quasi-judicial zoning proceedings the parties must be able to present evide ce, should be provided an opportunity to cross examine the witnesses and be inform d of all the facts upon which the commission acts. Notice The local code will determine what is mandatory notice. It an include the following: · posting of zoning land use signs advertising the he ng for the property; · publication in a newspaper of general circulation in e community of the land use hearing · written notice of the time, place, date and descri tion of request by mail to surroUflding property owners within a certain distanc of the subject property. . Ex Parte Contacts . Ex parte contacts are communications by one party to a roceeding with the decision maker outside the presence of the other parties - member 0 a board inspects the subject property and is given a tour by the owner. Since such co ents are made off the record and are made to influence the decision maker, it can affect the concept of an impartial, neutral decision maker. In the past, it was always accepted hat an applicant or members of the public could contact public officials and they were not subject to any ex-parte prohibition. In 1993 the Supreme Court found that ex part contacts in a variance case violated due process and declared the variance approval de ision void. The legislature reacted by adopting a provision in Section 286.0115 F.S. to provide a process to permit the discussion of any matter on the merits with any elected r appointed officials. There are several alternatives including (1) making any ex parte ommunication a part of the record before final action is taken on the matter and (2) havi g another procedure where disclosure of such communication is not required. Cross Examination and Swearin2: of \Vitnesses There are a number of cases that include the swearing ofwitn sses and cross examination as part of an appropriate hearing process. In a quasi-judici I proceeding, it provides a stronger position for supporting the decision of the board if itnesses were sworn and if there was an opportunity for cross examination. Cros examination can be the opportunity to ask questions through the chair or presiding of cer to the witness. Opportunity to be Heard In Snyder, the Supreme court held that the property owner wh is seeking rezoning of his property has the burden of establishing that the applicati n is consistent with the Comprehensive Plan and complies with the zoning regulation . At this point, the burden 3 . . . shifts to the staff to demonstrates that maintaining the e isting zoning for this parcel accomplishes a legitimate public purpose. The applicant, st ff and members of the public should have an opportunity to present relevant facts to the oard. The board may restrict repetitious testimony or testimony that has nothing to do ith the particular application. Where questions are raised, the staff and applicant should e able to provide responses. If time limits are adopted such as limiting speakers to a number of minutes, that limitation should be flexible where pertinent infonnation is being provided related to the application. (b) Application of Correct Law Application of correct law means that the board, commi sion or other administrative body conducting the hearing must apply the law which go ems the case. In the case of the code enforcement board, board of adjustments and appe Is or a planning commission, the law governing the case is likely to either the Code of Ordinances or the Land Development Code. Most simply stated, the board or com ission must apply the law as it exists rather than how a member or members would like i to be. The requirement that the hearing body limit itself to considering the facts and a plying the law to the matter properly before it is the principal limitation on the judicial (0 quasi-judicial) power.3 In Snyder, the Supreme Court established that the approp 'ate standard of review for quasi-judicial actions is strict scrutiny. Significantly, the co rt also adopted the approach from Machado v. Musgrove, 519 So. 3d 629 (Fla. 3rd DCA 1987) rev. den., 529 So. 2d 694 (Fla. 1988). The Machado approach adopted strict scru iny and "did not distinguish between rezonings based on whether they allow more or I ss intensive uses than those contemplated by the local plan. Noting that 'strict scrutin ' is a tenn arising from the necessity of strict compliance with comprehensive plan,' t court cited both Machado and the lower court's Snyder decision as examples of the t e of strict scrutiny review applicable in the judicial review of land use decisions. ,,4 All land use decisions must be consistent with the comprehen ive plan. (c) Substantial Competent Evidence The case law requires quasi-judicial decisions to be support d by substantial competent evidence. In Lee Count v. Sunbelt E uities II Limited artnershi , 619 So. 2d 996 (Fla. 2d DCA 1993), the District Court discussed compet nt substantial evidence by quoting the following: "At the circuit level, three questions are asked: hether due process was afforded, whether the administrative bod applied the 3 Council Board Commissioners Committees Power and Process' Standards for D cisions' Standards and Sco e of Review of Decisions, prepared for Legal Infonnational Seminar, December 12, 199 by Robert D. Pritt, Sanibel City Attorney. 4 Thomas G. Pelham of Florida State University, JournalofLand Use and Enviro ental Law, Vol. 9, Number 2, (Spripg, 1994). Quasi-Judicial Rezonings: A commentary on the Snvder Decision a d the Consistency Requirement, page 290. 4 -. . . correct law, and whether its findings are supporte by competent substantial evidence. This last requirement is usceptible to misunderstanding. It involves purely legal questi n: whether the record contains the necessary quantum of evidenc . The circuit court is not permitted to go farther and re-weigh that evidence (e.g., where there may be conflicts in the evidence), r to substitute its judgment about what should be done for that of the administrative agency." Bell v. City of Sarasota, 71 So.2d 525 (Fla. 2d DCA 1979). Id. at 1003. The seminal case defining "substantial competent evidence' is DeGroot v. Sheffield, 95, So. 2d 912 (Fla. 1957). In that case, the Florida Supre e Court defines competent substantial evidence as such relevant evidence as a reaso able mind would accept as adequate to support a conclusion. In Board of Count Commissioners of Sarasota Count v. ebber, the Court citing the Supreme Court in Educational Dev. Ctr., Inc.. 540 So.2 at 107-108 stated that the appropriate standard of review is: "The question is not whether, upon review of the e idence in the record, there exists substantial competent evidence to support a position contrary to that reached by the agency. Inst ad, the circuit court should review the factual detennination made y the agency and detennine whether there is substantial compete t evidence to support the agency's decision conclusion." Id. at 107 . A planning board recommendation without additional subst ntial competent evidence is not sufficient to support the decision. Conetta v. Cit of Sa sota 400 So. 2d 1051 (Fla. 2d DCA 1981). The law in Florida is settled that reliance solely on lay opi ion testimony to support a denial of a rezoning application cannot be sustained. Cit 0 A 0 ka v. Oran e Count , 200 So. 2d 657 (Fla. 4th DCA 1974); Flowers Bakin Com an Co. v. Cit of Melbourne, 537 So. 2d 1040 (Fla. 5th DCA 1989); B L Investments v. Cit of Casselberry, 476 So. 2d 713 (Fla. 4th DCA 1985). The Fourth District Court of Appeal addressed this issue in Pollard v. Palm Beach County, 560 SO.,2d 1358 (Fla. 4th DCA 1990). In the Pollard case, the owner of property applied for a special exception to use the property as an adu t congregate living facility ,for the elderly, and the application was denied. In public he 'ngs before the Palm Beach County Commission, various neighbors expressed their opi ions that the proposed use 5 · would cause traffic problems, light and noise pollution, d would generally have an unfavorable impact on the area. The court held that su h opinions were not factual evidence and not a sound basis for denial and, thus, ther was literally no competent substantial evidence to support the denial of the zoning chan e application. Lay testimony which is factual may be substantial compe ent evidence to support the decision. Members of the public can offer factual testimon . See City of St. Petersburg v. Cardinal Industries Dev. Corp., 493 So. 2d 535 (Fla. 2 DCA 1986); Grefkowicz v. Metropolitan Dade County, 389 So. 2d 1041 (Fla. 3rd DC 1980). Metropolitan Dade Count West Dade Federation of Homeowner's Associatio Inc. v. Blumenthal, 20 Fla. L. Weekly D1445 (Fla. 3rd DCA June 21, 1995), on reheari g en banc 21 Fla. L. Weekly D464 (Fla. 3rd DCA March 1, 1996). In Metro olitan Dade Count West Dade Federation of Homeowner's case, citizen testimony on the density and uses of specific surround·ng parcels was fact-based testimony and was found proper. In Marion County v. Priest, 786 So. 2d 623 (Fla. 5th DCA 2 01). the District Court stated that citizen testimony in a zoning matter is permissible and constitutes competent substantial evidence as long as it is "fact based". The Distri t Court found that it is up to the zoning authority to determine whether to accept the citize testimony as fact based. Testimony by professionals during public comment has b en found to be substantial competent evidence. In Cit of Fort Lauderdale v. ultid e Medical Waste Management, Inc., 567 So. 2d 955 (Fla. 4th DCA 1990) rev den., 581 So. 2d 165 (Fla. 1991), the court fOUfld substantial competent evidence from t e testimony ofthe public to sustain the denial which included a veterinarian and a 1 tter ITom an expert in air pollution and its sources. There is a substantial body of law which evaluates the testi ny and evidence submitted at a land use hearing and overturns the local government' denial decision when, that decision is based upon the outcry of a neighborhood witho t the support of substantial competent evidence. Summary The local government should have a hearing process which is set fì h in writing. The hearing process should be reviewed to incorporate procedures that provide or due process. The local decision makers need to be thoroughly familiar with implementi g the requirements of the hearing process. At the beginning of the hearings, the hearing proc ss should be reviewed and the applicable standards in the codes or regulations should be review d. The applicant should be informed as to its responsibility to meet the burden of proof. The ecord needs to include the clear basis for the decision issued. 6 . . Zonin2: Pursuant to the requirements of Chapter 163 Florida Statutes, a 10 al government must adopt a land development code to implement the Comprehensive Plan. The land development code would include zoning regulations and specific site plan developme regulations. . Conventional Zoning District Peimitteduses by right Conditional uses or special exceptions Variances . Planned Unit Development or Planned Devel pment District (a site plan zoning) Deviations . Property Development Regulations (typically con ained in zoning code) Minimum lot size Setbacks yard, front or street , Side Rear Waterbody Percentage of open space Percentage of coverage Typically there are two types of zoning districts. The standa d type of zoning district (conventional zoning district) is typically either residential, co ercial or industrial and no special conditions can be placed upon rezoning of a parcel to a c nventional district such as eliminating certain permitted uses in that zoning district. For examp e if a parcel is rezoned to a conventional commercial district, the local governing body either grants the rezoning which would entitle the owner to all of the uses or denies the rezoning requ st. A conventional zoning district provides no flexibility to permit the local government to condition the approval by imposing special conditions such as additional buffering or dedicati n of property or increasing setbacks. If a government levies a special limitation in a convention 1 zoning district, the risk is that it would .be declared contract zoning which is deemed illegal by t e Courts of Florida. Each conventional zoning district typically contains a set of mini urn property development regulations as to lot size, width and depth, set backs, percentage 0 open space, percentage of coverage 7 . Conventional zoning provide a list of permitted uses which are co sidered permitted as a matter of right (assuming consistency with the comprehensive plan). In a dition, a typical conventional district will often contain a list of uses to be approved through t e public hearing process and maybe termed a "conditional use" or "special exception". Conditional Use or Special Exception A "conditional use" or "special exception" is a use which is not pe itted as a matter of right in a zoning district but is a special use which may be appropriate in t e zoning district if controlled as to size, number and impact. Therefore, the regulations typically require that a c.onditional use or special exception can only be granted after a public hearing 'th notice to the surrounding property owners. The local zoning code will contain the criteria for the special exception or conditional use. Conditions may be placed on a conditional us or special exception. The process will be unique to each local government. Examples of the 1 cal government process is as follows: · In Lee County, a request for a variance or a special exc tion is heard by the Hearing Examiner who issues a final decision. · Fort Myers Beach - The local planning agency hears all land use applications to include rezonmg, vanance and special exceptio s. The LPA Issues a recommendation. The Town Council makes the final ecision to issue or deny the variance or special exception. · Fort Myers - éonditional uses and variances are heard nd a final decision rendered by the Board of Adjustments and Appeals. · Bonita Springs-Conditional Uses and variances are hard by the Zoning Appeals Board, which makes a recommendation to City Council. City Council makes the final decision. · Collier County and City of Naples and Marco Isla d - Conditional Uses and variances are heard by Planning Commission which makes recommendation to Commissioners or Council Members respectively who h ve final decision · Sanibel - Planning Commission makes final decision un ess appealed to City Council The second type of zoning which is typically available in a comm ity is a "site plan zoning". The authorizing zoning ordinance provide the power to the local g vernment to levy conditions to mitigate negative or adverse impacts of the proposal and to dete ine what specific uses are appropriate for the parcel. The adopting ordinance or resolution in udes approval of a site plan. The only uses which are permitted on the site are those uses revie ed and approved at the final zoning hearing by the local governing body. Typically in the site pI n zoning process there is an opportunity to determine the minimum property development reg lations as to that particular parcel to include the minimum lot area, depth, width, setbacks, height, square footage and parking requirements for uses. Variances Variances are request for relief from certain property developmen regulations such as height, setbacks, or size of the lot. If one cannot meet the property d velopment regulations in a 8 . conventional district, a variance is the appropriate request to se relief. Variances usually require the same public hearing process as a special exception or a v riance. The individual code for the local government will contain the criteria for the varian e. Typically the standards require the applicant establish (1) unique and extraordinary circums ances related to the parcel or structure on the parcel and (2) that the regulation places an unreas nable hardship or burden on the property which is different from other commonly situated prope les. This infonnation is subject to change by the state legislature, local governments and judi ial interpretation. This is a broad and . general overview and any factual statements are cited as an example and should not be reli d upon. Any analysis of an individual parcel must be based upon a review of the actual laws and regulations. This informatio was prepared for the DeSoto County Advisory Workshop on December 3, 2004 by Roetzel & Andress, a Legal Profess onal Association and should not be reproduced. 179385.1.0418.0418 . : 9 , ". . t -v1.AKIT''¡G "..·....V"r1R W ¡ '._T :'~fY" 1:!..' By: William W. Merrill, ill ICARD, MERRJLL, CULLIS, TIMM, FuREN & G 2033 Main Street Suite 600 Post Office Drawer 4195 (813) 366-8100 Facsimile: (813) 366-6384 IT. HOW TO WIN UNDER SNYDER: COMPETENT S STANTIAL EVIDENCE A. Proving the Landowner's Case Under Snyder. 1. Burden of Proof. A landowner has the burden of proving that its proposal: a. is consistent with the comprehensiv plan; and , b. complies with all procedural require ents of the zoning ordinance. 2. Rebuttal. A landowner should, if possible, rebut the government's case by demonstrating that: a. maintaining the existing zoning clas ification with respect to the property would not accomplish a leg timate public purpose; or b. denial of the application would be arbitrary, discriminatory or unreasonable; or c. the existing zoning classification of the property is ronfiscatory and thereby constitutes a taking. 3. A landowner must present competent subs tial evidence to carry its burden of proof and rebut the government's case. B. Proving the Government's Case Under Snvder. 1. If the landowner carries its burden of pr f, the burden shifts to the government to demonstrate that main . the existing zoning g classification with res~t to the property a mplishes a legitimate public purpose. . . a. This means that the existing zo g classification must be consistent with the comprehensive 1') ~H1. b. This means that the government m st show that the refusal to rezone the property is not ar itrary, discriminatory, or unreasonable. 2. The government should, if possible, also d monstrate that: a. the landowner's proposal is not consistent with the' comprehensive plan; or b. an alternative proposal is consistent ith the comprehensive plan; or c. the existing zoning classification of e property is not confiscatory and thereby does not constitute a g. 3. The government must present competent su burden of proof and rebut the landowner's 4. A "'tie" goes to the government! -~----- --~-- ---- -_._-_.---~._---~--_.. - ---- . . -------..- .,' /. 5(a). What is "competent and substantial evidence?W Competent and substantial evidence is "s ch evidence as will establish a substantial basis of fact from wh'ch the fact at issue can be reasonably inferred." It is "such re evant evidence as a reasonable mind would accept as adequate ,to s pport a conclusion. . .. [T]he evidence relied on to sustain he ultimate finding should be sufficiently relevant and material t at a reasonable mind would accept it as adequate to support the co clusion reached. To this extent the substantial evidence should also be competent." DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957). See also, Lee Countv v. Sunbelt Equities, 619 So.2d 996, 1002 (Fla. 2d DCA 1993) (for the action to be sustained, it mus be reasonably based on the evidence presented). In other w rds, competent and substantial evid~nce is the type and amount of evidence that a reasonable person would have to see in order 0 be convinced about the issue at hand, whatever that issue might be. It is important for elected officials to keep in mind th t this hypothetical "reasonable person" is not necessarily t e same thing as a hypothetical voter. S (b). Maya transcript of a prior hear in on the application, at which witnesses were not under oath, be s mitted as evidence, particularly if one of the witnesses from the arlier bearing is no longer available, and if so, under what circ stances? Given that the witnesses at the first earing in this case were not under oath, admission of the transc ipt would be hearsay under the formal rules of evidence. In a jud cial hearing inquiry would have to be made as to the reason for he unavailability of the former witness. Fortunately for all inv lved, quasi-judicial hearings are not subject to the formal rules of evidence. Accordingly, the transcript may be admitted nto the record. The Board should be advised, however, that this· ranscript of unsworn testimony should be weighted accordingly. Th Board should also be cautioned that, pursuant to Jenninqs, every "party" in a quasi- judicial matter is entitled to cross-exa ine witnesses, and, inasmuch as the other "parties" did not hav the opportunity to cross-examine the now missing witness, allow ng the transcript in may be an encroachment on those other parties due process rights. Accordingly, it would be prudent to advise he board that, while such hearsay may be admitted, it should not e the sole basis for a decision and should be corroborated wit other testimony or physical evidence if it is to be afforded an significant weight. · ,,- 9. Must the speakers at a quasi-judici 1 hearing be limited to witnesses or may the general public offer general opinions? Local governments have long been cautio ed that they may not engage in "government by applause meter." A A. Profiles Inc. v. City of Fort Lauderdale, 850 F.2d 1483 (llt Cir. 1988) i City of Apopka v. Orange Co., 299 So.2d 657 (Fla. 4 h DCA 1974) . In the instant case we do not know if the local code prescribes a "public hearing" on conditional use permits. If n t, then there is no requirement that the public at large be affor ed an opportunity to speak. If, as is more likely, the condition 1 use ordinance does prescribe a public hearing process, then the public would clearly have a right to speak. Moreover, any land se action, such as a rezoning, which requires enactment of an ord nance, is' subj ect to a public hearing as prescribed in §166.041(3) (c) F.S. (for municipalities) or §125.66 F.S. (for countie ) . The real issue in such cases is whether you can effectively mes the general public's right to speak with the right of the partie in interest to have the matter decided solely on the rele ant facts, not on neighborhood sentiment or unfounded lay opin on. One way to ~esh these possibly conflicti g rights would be to provide the public the option to "testify" itherunder oath and , · subject to cross-examination, or not under 0 th and not subject to cross-examination. Before they elect how t ey wish to speak they should be advised, perhaps on the speaker r gistration form, that unsworn "testimony" may not be weighted as heavily as sworn testimony regardless of which side of the i sue they support. Speakers should also be encouraged, again pe,rhaps by a preprinted notice on a speaker registratio form, to state any special education or background which ightenhance their credibility. For example, in Cit of Fort L uderdale v. Multid ne Medical Waste Management, 567 So.2d 955 (FI . 4th DCA 1990), rev. denied, 581 So.2d 165 (Fla. 1991), testimon from a veterinarian who claimed to have expertise regarding the isposal of infectious medical waste, coupled with a letter from a law professor who claimed to be an expert regarding air p llution, was deemed sufficient evi~ence to support a City Commi sion decision to deny a permit for a medical waste incinerator. The fact that a speaker has no specia expertise, however, does not mean that his or her opinion shoul n't carry any weight. In fact, with respect to at least some land u e issues, lay opinion testimony may be considered as expert testimony and therefore relevant and competent evidence. For exam Ie, it has been held that the best evidence on the issue of compat bility and aesthetics may come from the people who live in the nei hborhood. See, g.g., Board of Count Comm'rs of Pinellas Count Cit of Clearwater, 440 So. 2d 497 (Fla. 2d DCA 1983) (layper ons with first hand knowledge of the vicinity qualified as e pert witnesses with respect to aesthetic compatibility), See also, City of St.Petersburq v. Cardinal Industries, 493 o.2d 535 (Fla.2d DCA 1986) (lay opinion as to fire hazards and expected traffic not accepted as competent and substantial evidenc but lay testimony as to aesthetics, compatibility, and high resid ntial vacancy rate in the neighborhood permitted). But, ~,i., Col nial A artments L.P. v, City of DeLand, 577 So.2d 593 (Fla. 5th CA 1991) rev. denied 584 So.2d 997 (Fla. 1991) (opinions of neig ors as to aesthetics and compatibility not enough to support denial of proposed development) . In summation, it is probably better to isk having irrelevant testimony or unfounded opinion in the re ord, with it being assigned no weight by the factfinder, than to exclude possibly relevant evidence which could then be the ba is for a due process certiorari challenge in circuit court. Th key is not so much which evidence or testimony makes it into t e record, but rather how the record reflects such evidence or test'mony was weighted and used in the decision making process. , - . . . Tips for Effective Pr~ ,.entation of Evidence 1. Brevity is always appreciated, but, in retu rn, ask for rebuttal time. 2. Determine the most important technical data, vhich needs to be verbalJy presented. Include other data VI¡ hich should be part of record in a written report. 3. The first things you say are more likely to be fo gotten than the last things. Structure your presentation tc emphasize the most important issues last. Repeat them a ~ain in your rebuttal. 4. Public hearings may be quasi-judicial but tc o strong a courtroom style often offends public officials. (Don't beat up the neighbors.) 5. Quantify. Quantify. Quantify. Hunches de n't count. Remember that the evidence must also be "~ ;ompetent" and "Substantial." 6. The history of what you said in the past carr es forward with you in the future. I ,.. . . , . . Golden Rules on Vari. ances 1. Follow the Criteria Closely. ," 2. Economic Hardship Is Not the Test. . , . , 3. What are Unique/Special Hardship Circumstan es on This Property? 4. Is the Request More Than The Minimum? 5. Is It a Self·Made Hardship? (Look at Vacant Lot s) 6. Ask Yourself Why If You Keep Getting the S ame Requests Over and Over? r .' Conditional Use Definition .. A use pennitted in a particular zoning dis ·ct upon showing that such use in a specified /ocati will comply with all the conditions and standal1 for the location or operation of the use as specifie in the zoning ordinance and authorized by the aR roving agency. , Comment: Conditional uses are permitted uses and are appropriat in the zoning district only when all conditions are met. For example, a house of worship may be desirable in a residential area but controls over parking prevent them from adversely affecti g surrounding residences. By classifying them as conditional uses, separate regulations can be i posed to mitigate the adverse impacts. In some places, conditional uses are classified as special xception uses. In all cases, the conditions must be specific. r .- ~ . . ,. - .. ." ,. ' Special Exceptions/C~ )nditional Uses . 1. Criteria for Approval Is Meeting the Conditions ê s Outlined. . . 2. Conditions Must Be Specific. , 3. Cannot Be Treated As A Prohibited Use. ,. - -. ~ '. - '. .. \. / - ," Administrative Appea Is 1. Is Staff Interpretation Correct? (Isn't a Questio 1 Whether Code Section Desirable.) 2. Examine Te$timony and Code Section Carefully. , 3. Consistency of Implementation is Important. 4. Should There Be a Rewrite of the Code. Proposed Phase Local government transmits three copies of Local government and the plan amendment to the Department of agencies notified submittal Community Affairs (DCA) and one cop¡ to II ncompüte" is ·incomplete." review agencies.' {Loca/gowmmenlmayroquest (Wilhin nw 'ItOrl<11I<J days of re'<few at Iran smIItaq, t9Celft), IfComplde" Local government and agendes notified submittal is ·complete." (Wllhin nw working days of t9ce1pt), , Review agencies include: appropriate Regional Planning Review agendes send comments to OCA Council and Water Management Distric~ Department of (W/rIW130 days of reœör:A of complete amenàr>enII, Transportation, Department of Environmental Protection, Department of State; the appropriate Local government requests Regional Planning Council (RPC)/ county (municipal plan amendments review, "Re u~st Affected person sends OCA req~est to only); the Florida Fish and Wildlife RPC/Affected person request to review>' revi ew. (M usl be received within 30 days ane< Conservation Commission and the review, transmilt.1L) Department of Agriculture and Consumer Services (county plan amendments only); and the Department of Education (public educational facitities element only), DCA issues ORC, (W7/hin "Review" 60 days of receipt of compleœ proposal amendmenQ, . ------------ -------------------------- ------------- ------------------------- Ado ted Phase , Local government adopts plan amendments .,.,;th effective date. ('MIhin 60 days aIIerreceipt of aRC orwilhill120 days loran EAR-based amendT>enQ. Local government submits three copies of adopted plan amendment to DCA; 0 ne copy to review ag enci es, 2 (Within 10 working days aller adoption), "'Adopted Amendment wùh Ohjecrio1l.'i or Ozanges". uVncJlangedAl7U!ndment n Reviewed or with no ObjediotLf" DCA issues Notice of Intent leln" "In" (NOt),' ('MIhin 20 days ofreœiptofa completa adopted plan amendment), 'In Comp/žanc~" DCA requests hearing. If challenged, or Alfected Party h s 21 days 2 DCA does not review DOAH, (Division of Administrative found not in to challenge, fo r complia nee adopted Hearings. Department of Mana.,... small scale ment Services.) compiance amendments. Local negotiation may governments are Administrative Proceeding required to submit one pursuant to s, 120,57, F.S. lead to a copy of the adopted compiance small scale amendment to DCA and the RPC, agreement and DCA or Administration remedial plan ) NOI will be published Commission Final Order amendment 30 days after receipt of compiance agreement .¡. pursuant to amendment I Effective Date I s,163.3184(16), · Local government F.S, confirms that the adopted amendment is Q/I,,'iotls, call Roy E/lbonh, Bur~ou ofSlat~ Planni"g, unchanged from the D~partmetlt ofCommwliryAffoirs al (850)922-/767; proposed amendment, ~l1Iail: ray.ellbank.s@dca.sl(lle.fl.lIs. was not reviewed and no objections were 'raised by an affected party or the Department · The EAR process " 3. Preþa,re': list of issues' State and Regional 5. Final issues Agencies list/letter of and understanding adjacent Collect local Data governments Elected Officials Planning Board , General Public 8. Revise EAR 9. Transmit proposed EAR to DCA 11. Public Hearing to adopt EAR Amend EAR :::>tatures ðl. L..onstltutlon : Y lew :::>tatmes :-"'>L.VV':;-;>L..hULð()->:::>ectlon VI t'age 1 or L . "",'3 IGol ~ Select Year: 2003 E The 2003 Florida Statutes ~-~..~_..,....¥. Title XIX Chapter 286 View Entire PUBLIC PUBLIC BUSINESS: MISCELLANEOU Chapter BUSINESS PROVISIONS 286.0115 Access to local public officials; quasi-judicial proceedings on local government land use matters.-- (1 )(a) A county or municipality may adopt an ordinance or resolution emoving the prèsumption of prejudice from ex parte communications with local public officials by stablishing a process to disclose ex parte communications with such officials pursuant to this ubsection 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 disclo ure process. (b) As used in this subsection, the term "local public official" means a y elected or appointed public official holding a county or municipal office who recommends r takes quasi-judicial action as a member of a board or commission. The term does not include a ember of the board or commission of any state agency or authority. (c) 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 t~e local public official is a member. If adopt d by county or municipal ordinance or resolution, adherence to the following procedures shall r move the presumption of prejudice arising from ex parte communications with local public offi ·als. 1. The substance of any ex parte communication with a local public 0 ficial which relates to quasi- judicial action pending before the official is not presumed prejudicial 0 the action if the subject of the communication and the identity of the person, group, or entity ith whom the communication took place is disclosed and made a part of the record efore final action on the matter. 2. A local public official may read a written communication from any erson. However, a written communication that relates to quasi-judicial action pending before a 1 cal public official shall not be presumed prejudicial to the action, and such written communicati n 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 sh II not be presumed prejudicial to the action if the existence of the investigation, site visi , 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 ade before or during the public meeting at which a vote is taken on such matters, so that perso s who have opinions contrary to those expressed in the ex parte communication are given reasonable opportunity to refute or respond to the communication. This subsection does not subject local public officials to part "' of chapter 112 for not complying with this paragraph. (2)(a) Notwithstanding the provisions of subsection (1), a county or m nicipality may adopt an ordinance or resolution establishing the procedures and provisions of t is subsection for quasi- judicial proceedings on local government land use matters. The ordina ce or resolution shall provide procedures and provfsions identical to this subsection. Howev r, this subsection does not require a county or municipality to adopt such an ordinance or resolutl n. http://www.flsenate.gov/Statutes/index.cfm?p=2&App _ mode=Display tatute&Search Stri... 4/812005 Statutes & ConstItutIOn: V lew lutes :->2003->Ch02~b->~ectIon 011 S . ílsenate.gov page L ot 1. (b) In a quasi-judicial proceeding on local government land use matte s, 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 decisionma ing body, and may be requested to respond to questions from the decisionmaking body, but eed 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 cr dibility to such testimony as it deems appropriate. A party or party-intervenor in a quasi-judicial p oceeding on local government land use matters, upon request by another party or party- 'ntervenor, shall be sworn as a witness, shall be subject to cross-examination by other parties or pa ty-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 matte s, a person may not be precluded from communicating directly with a member of the decisio making body by, application of ex parte communication prohibitions. Disclosure of such communica ions by a member of the decisionmaking body is not required, and such nondisclosure shall not e presumed prejudicial to the decision of the decision making body. All decisions of the decision aking body in a quasi- judicial proceeding on local government land use matters must be sup orted by substantial, competent evidence in the record pertinent to the proceeding, irresp tive of such communications. (3) This section does not restrict the authority of any board or commi sion to establish rules or procedures governing public hearings or contacts with local public offi ials. . History.--s. 1, ch. 95-352; s. 31, ch. 96-324. Disclaimer: The information on this system is unverified. The journals or printed bills of the re ective chambers should be consulted for-official purposes. Copyright © 2000-2004 State of Florid . http://www.f1senate.gov/Statutes/index.cfm?p=2&App _ mode=Display _ tatute&Search _ Stri... 4/812005 http://www.uslegalforms.COmlh.eStllegal-definitions'PhPJUSJUS-UNNECES Y _HARDSHIP .htm '. þ Unnecessary hardship is a term commonly used in zoning law to just' fy the grant of a variance from zoning regulations. The applicant must demonstrate that under pplicable zoning regulations, the applicant is deprived of all economic use or benefit om the property in question, which deprivation must be established by competent financ al evidence. The following generally must be proven to show an unnecessary har ship: · The applicant cannot realize a reasonable return, provided th lack of return is substantial as demonstrated by competent financial evidence; · That the alleged hardship relating to the property in question s unique, and does not apply to a substantial portion of the district or neighborhood; · That the requested use variance, if granted, will not alter the ssential character of the neighborhood; and · That the alleged hardship has not been self-created . ,