The URL can be used to link to this page

04-23-2001 CC Workshop Meeting2999 NE 191 ~t Street ~;uite 500 Aventura. FL 331 R0 City Commission Workshop Meeting April 23, 2001 9:00 A.M. 2. 3. 4. 5. 6. AGENDA Board Reports Quasi-Judicial Ordinance* Commission sub-Committee Reports * Present/Mutchnik v. City of Aventura* Recommended Certificate of Appreciation Proclamations (Vice Mayor Cohen) * Back-up Information Exists This meeting is open to the public. In accordance with the Americans with Disabilities Act of 1990, all persons who are disabled and who need special accommodations to participate in this meeting because of that disability should contact the Office of the City Clerk, 305-466-8901, not later than two days prior to such proceeding. CITY OF AVENTURA COMMUNITY DEVELOPMENT DEPARTMENT MEMORANDUM To: City Commission From: Eric M. Soroka, C r ? By: Nancy E. Stroud, Esq. Weiss Serota Helfman Pastoriz~& Guedes, P.A. Date: Re: February 23,200l Proposed Amended Quasi-Judicial Procedures First Reading March 13, 2001 City Commission Meeting Agenda Item No. ~ Second Reading April 3, 2001 City Commission Meeting Agenda Item No. RECOMMENDATION It is recommended that the City Commission adopt amendments to Article II "Quasi-Judicial Matters" of Chapter 34 "Planning and Zoning" of the City Code. These changes will update the existing code provisions to accord with the latest case law and statutory changes. A redlined version of the new quasi-judicial code provisions are attached so that the Commission can more clearly see the proposed additions and deletions. (3) Commission shall mean the City of Aventura City Commission. (4) Commissioner shall mean a City Commissioner. (5) Competent substantial evidence shall mean testimony or other evidence based on personal observation, or fact or opinion evidence offered by an expert on a matter that requires specialized knowledge, that is relevant to the issue to be decided. Competent substantial evidence is evidence a reasonable mind could accept as adequate to support a conclusion. (6) Comprehensive plan shall mean the City Comprehensive Plan which has been adopted pursuant to Part II, Chapter 163, Florida Statutes. (7) Development Order shall mean the written decision of the Board regarding an Application considered under quasi-judicial proceedings pursuant to this Article II, and shall include a letter from the Director of the Community Development Department memorializing a decision of denial from the Commission. rS) Ex-parte communication shall mean any written, oral, or graphic communication with a Commissioner which may relate to or which could influence the disposition of an Application, other than those made on the record during a quasi-judicial hearing. This term also includes visiting the site of the Application, receipt of expert opinions, and any independent investigations by a Commissioner. (9) Expert shall mean a person who is qualified in a subiect matter by knowledae, skill, experience, training, or education. (10) Material fact shall mean a fact that bears a logical relationship to one (1) or more issues raised by the Application or the laws and regulations pertaining to the matter requested by the Application. (11) Participants shall mean members of the general public, other than the Applicant, including experts and representatives of local governments and governmental agencies, who offer testimony at a quasidudicial hearing for the purpose of being heard on an Application. (12) Parry shall mean the Applicant, the Ciw Staff, and any person recognized by the Commission as a qualified Intervenor. (13) Quasi-/udicial proceeding shall mean a hearing held by the Contrnission to adjudicate the private rights of an Applicant by means of a hearing which comports with these regulations and due process requirements. (14) Relevant evidence shall mean evidence which tends to prove or disprove a fact that is material to the determination of the Application. First hearin~ redline exhibit (15) StaffshalI mean members of the City staff~ Sec. 34-3t4._ Ex-parte eCommunications ..... t, ............... (1) This section is adopted to follow the disclosure processes of Section 286.0I 15(1), Florida Statutes (2000), and shall be construed so as to be consistent therewith. (2) An,/ Commissioner ma,/ choose to discuss the merits of an,/ matter of which action may be taken by the Commission with any person not otherwise prohibited by statute, charter provision, or ordinance if the Commissioner complies with the procedures of this Section 34-34. (3) Compliance with the procedures of this Section 4 shall remove the presumption of prejudice arising from ex-parte communication with any Commissioner: Oa~ Oral communications. The subject and :ubatancc of mx5' cx parte the ..... : :-.-~:~:~, ~,: ..... -~:-- ~--~ .... ,~ ^~-:~ ...... 1, d th id tiw fth person, group or entity with whom the communication took place, shall be disclosed and made a part of the record before final ' :- *-' ...... ~ on the Application. At the quasi-judicial hearing the person or persons responsible for the ex-parte communication, any Party to the hearing and any Participant shall have the opportunity to contest the accuracy of the matters disclosed. Ob_) Written communications. ^ ma)' rcad a Any written communication c~ ............. t. .......... · mattcr related to ~ Application pending before the Co~ission shah be fo~arded to the appropriate staff for inchision in the official file for the Application, ~d shall be disclosed on the record before final action on the maNer. It shah be the responsibility of the Applicant to review the official file First hearing redline exhibit periodicali¥ to determine whether written ex-pane communications have been placed in the official file. (gc_) Investigations and Site ?tkits. ..... v ............... ~, .......... s .~c City Commissioners may conduct investigations ~d m~e site visits ~d receive expea opinions regmding quasi-~udiciai action pending before ~m them. ~c,~ ~in~on~ Such activities shall not be presumed prejudicial to the action the existence ~d subject ma~er of the investigations, site visits, or opinions is made a p~ of the record before final action is t~en on the matter and an oppo~ni~ for the P~ies ~d Pa~icip~ts to respond is provided p~or to or at the hea~ng. C42 Commissioners must make Ddisclosures_ - ,--~--~ ............... v~o~'~,, t,~ o..o,.,~.~,.~- .... :~ (t), (2) ~,~ ~ ............................ c before or during the public meeting at which a vote :~ ~ ............... :~*: ....... ; ............ ~ the Appl' ' fro d p reasonable oppo~unity to re,re or respond to the communication. Section 34-35. General procedures. (1) Each Part,/ shall have the right to cai1 and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any relevant matter (subject to the rules contained herein), and to rebut evidence. (2) Staff shall have the responsibility of presenting the case on behalf of the City. The Staff Report on the Application shall be made available to the Applicant and the Commission no later than twenty-four (24) hours prior to the quasi-iudicial hearing on the Application. (3) All written communication received bY Commissioners or Staff concerning an Application, the Staff Report on the Application, an,/petitions or other submissions from the public, and all other documents pertaining to the Application upon receipt shall be filed in the official file for the Application, which shall be maintained by Staff. The Comprehensive Plan and the City Code of Ordinances shall be deemed to be part of the official file. The official file shall be available for inspection during normal business hours. (4) The printed agenda for the meeting at which the quasi-iudicial hearing is scheduled to take place shall briefly explain the procedures and nature of the quasi- judicial heating. Sec. 34-3~6. Hearing procedures. F~rst hearimz redline exhibit ~ .........s .....: u ..........: ......... pay r a transc ...... prcccc xngs. The heating shall, to the extent possible, be conducted as Follows: First hearin~ redline exhibit % ~ The Chair Mayor or City Attorney shall read a prcliminaD' statement once at the begi:ming of the quasi-judicial public hearing portion of the agenda, which shall outline the procedure to be followed. A copy of this Ordinance shall be made available at the hearing .............. v ........... s ........... , .... opcn thc v ............. s ..... Chair shall ~-~ ~. L~ The eApplicant, '~'; ....... ............... ~ sStaff and all pParticipants requesting to speak shall be collectively sworn by oath or affirmation, excluding .......... ~ .................................. ~ Attornc5 The cant may waive its right to an evidentiary hearing if it agrees with the Staff recommendation and no one from the audience wishes to speak for or against the Application. The Commission may then vote on the item, based upon the Staff Report and any other materials entered by Staff from the official file into the record of the hearing. (d) If there is an evidentiar~ hearina, the order of the presentation shall be as folloxvs, unless the Commission agrees to a different order, taking proper consideration of fairness and due process: 4:.i. The City sStaff shall present,to; ~,~v",~,~^'~ '-~*'-~cv~- ;,t : ...... :' .... n~ ~ .... :* --~'~ ..... ~ ...... ~ bfi pi f th ................ ~, of ........... a ef sync ss o e Application; introduce any appropriate additional exhibits from the official file wMch have not already been transmitted to the Co~ission with the agenda materials, as Staff desires; su~afize issues; and m~e a reco~endation on the Application. Staff shall also in~oduce ~v wi~esses that it wishes to provide testimony at the he~ng. 5: ii~ The a~_pplicant shall make its _presentation, including offering any exhibits from the official file, and introduce any witnesses as it desires. 6. ilia. Participants in support of the aA_pplication shall make their :h iv. Participants in The opposition to the Application shall make their presentations ............ s .............................. p ...... may cross-examine any witnesses and respond to any testimony presented. If any witness is unavailable at the hear'ina to be cross-examined, his_ testimony shall be disregarded. ........... z, ............. The Applicant may cross-examine any witnesses and respond to any testimony presented. If any witness is unavailable at the hearing to be cross-examined, his testimony shall be disregarded. vii. The Mayor may choose to allow Participants to respond to any testimony if the Mayor deems the response to be necessary to ensure fairness and due process. viii. The Commission may ask any questions of the Staff, Applicant and Participants. ix. Final argument may be made by the Staff, related solely to the evidence in the record. x. Final argument may be made by the Applicant, related solely tn evidence in the record. xi. A qualified intervenor may make a presentation, conduct cross- examination and make final ar.~uments in the order as decided by the Commission_. (e) The Mayor shall keep order, and without requiring an objection, may direct a Party conducting the cross-examination to stop a particular line of questioning that merely harasses, intimidates or embarrasses the individual being cross-examined, is unduly repetitious, not relevant or beyond the scope of the testimony by the individual being cross-examined. If the Party conducting the cross-examination continuously violates directions fi.om the Mayor to end a line of questioning deemed irrelevant and merely desimaed to harass, intimidate or embarrass the individual, the Mayor may terminate the cross-examination. (f) After the presentations, and at the conclusion of any continuances, the Commission shall deliberate on the Application. Once the Commission begins its deliberations, no further presentations or testimony shall be permitted except in the sole discretion of the Commission. The Commission's decisions must be based upon competent substantial evidence in the record. (2) The Commission may, on its own motion or at the request of any person, continue the heating to a fixed date, time, and place. The Applicant shall have the fight to one (1) continuance; however, all subsequent continuances shall be re'anted at the sole discretion of the Commission. (3) The Applicant may withdraw an Application by requesting such withdrawal in writing. If an Application is withdrawn, that Application or any similar Application for the same site shall not be accepted for review for a period of one (1) year. ]75rst hearing redline exhibit Section 34-37. Rules of Evidence. (1) The Commission shall not be bound by the strict rules of evidence, or limited only to consideration of evidence which would be admissible in a court of law. (2) The Commission may exclude evidence or testimony which is not relevant, material, or competent, or testimony which is unduly repetitious or defamatory. (3) The Commission will determine the relevancy of evidence. (4) Matters relating to an Application's consistency with the City Comprehensive Plan or Land Development Regulations will be presumed to be relevant and material. (5) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient by itself to support a finding unless it would be admissible over objection in a court. (6) Documentary evidence may be presented in the form of a copy of the original, if available. A cop,/shall be made available to the Commission and to the Staffno later than two days prior to the hearing on the Application. Upon request, the Applicant and Staff shall be given an opportunity to compare the copy with the OlSginal. Oversized exhibits shall be copied and reduced for convenient record storage. (7) Only the Applicant, Staff and the Commission shall be entitled to conduct cross- examination when testimony is given or documents are made a part of the record. (8) The City Attorney shall represent the Commission and advise the Commission as to the procedures to be followed and the propriety and admissibiliw of evidence presented at the heating. (9) The Commission shall take iudicial notice of all state and local laws, ordinances and regulations and may take iudicial notice of such other matters as are generally recognized by the courts of the State of Florida. (10) Supplementing the record after the quasi-judicial hearing is prohibited, unless specifically authorized by an affirmative vote of the Commission under the following conditions: (a) The supplementation occurs after a quasi-iudicial heating is continued but prior to final action being taken on the Application. (b) If a question is raised by the Commission at the hearing which cannot be ans~vered at the hearing, the Party to whom the question is directed may submit the requested information in xvriting to the Commission after the quasi- Fh-st hearing redline exhibit judicial hearing, with copies to the other parties, provided the hearing has been continued or another hearing has been scheduled for a future date and no final action has been taken by the Commission. The information requested will be presented to the Commission at the time of the continued hearing. (c) All Parties and Participants shall have the same ri,aht with respect to the additional information as they had for evidence presented at the hearing. Section 34-38. Final Decision by the Commission. The Commission shall reach a decision without unreasonabis or unnecessary delay, which shall be adopted by theis Commission in writing and dated as of the date issued and shall indicate the date filed in the City Clerk's office.~'~...' ~...r~^"^~. ~.,.,},..~..~ ...... ~,.r~-'~-~.,.~ s i~sucd. Notification of the Commission's Development Order shall be provided to the Applicant by certified mail, and made available to any person who requests a copy from the City Clerk. Section 34-39. The Record. All evidence admitted into the record at the heating, and the adopted Development Order of the Commission, shall be maintained by the City Clerk for a period of at least 45 days from issuance of the Development Order. Sec. 34-3340. Public statements by Commissioners. (1) The Mayor and Commissioners shall each avoid publicly expressing their intention, either directly or indirectly, to vote for or against a pending quasi- judicial matter or working to influence public opinion upon a pending quasi- judicial matter, prior to hearing held pursuant to City Code section 34-32. A quasi- judicial matter is pending when an application has been filed pursuant to City Code section 34-32. (2) The failure to comply with the restriction provided in paragraph (a) of this section shall not invalidate any action or decision of the City Commission so long as the decision or action of the City Commission is supported by competent substantial evidence of record as required by law. (3) Any members of the City Commission violating the standard of conduct set forth above shall be subject to public censure by the City Commission, subject to rules adopted by the City Commission providing the accused Commissioner with a fair hearing, including an opportunity to be heard. The Commission reserves the right, by subsequent ordinance to prospectively implement other sanctions, in the event that the sanction provided for above is not effective in implementing the purposes of this section. First hearing redline exhibit 9 ORDINANCE NO. 2001 - AN ORDINANCE OF THE CITY OF AVENTURA, FLORIDA, AMENDING THE CITY CODE BY AMENDING CHAPTER 34 "PLANNING AND ZONING", AMENDING ARTICLE II "QUASI-JUDICIAL MATTERS" TO REPEAL 34-31 "EX PARTE COMMUNICATIONS WITH PUBLIC OFFICIALS," SECTION 34-32 "HEARING PROCEDURES," AND REPLACE WITH NEW SECTIONS 34-31 THROUGH 34-39 REGARDING QUASI-JUDICIAL DEVELOPMENT ORDERS; RENUMBERING EXISTING SECTION 34-33 "PUBLIC STATEMENTS BY COMMISSIONERS" TO BECOME SECTION 34-40; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN CODE; PROVIDING FOR EFFECTIVE DATE. WHEREAS, the City Commission finds that it is appropriate to amend the City's zoning regulations so as to expand and amend the City's provisions for quasi-judicial decision making on development orders; and WHEREAS, in accordance with Section 34-1 of the City Code, the City Commission has been designated as the local planning agency for the City pursuant to Section 163.3174, Florida Statutes; and WHEREAS, the City Commission has reviewed this ordinance and has determined that the regulations provided herein are consistent with the applicable provisions of the Comprehensive Plan of the City of Aventura, Florida. IT IS HEREBY ORDAINED BY THE CITY COMMISSION OF THE CITY OF AVENTURA, FLORIDA, AS FOLLOWS: Section 1, That Section 34-31 "Ex Parte Communications with Public Officials," and Section 34-32 "Hearing Procedures" of Article II "Quasi Judicial Matters" of Chapter 34 "Planning and Zoning" of the City Code, as attached as Exhibit A hereto, are hereby repealed. Ordinance No. 2001-__ Page 2 Section 2. That Section 34-33 "Public Statements by Commissioners" is hereby renumbered to become Section 34-40 of Article II "Quasi Judicial Matters" of Chapter 34 "Planning and Zoning" of the City Code. Section 3. That Section 34-31 through 34-39 of Article I1 "Quasi Judicial Matters" of Chapter 34 "Planning and Zoning," of the City Code, are hereby created as follows: ARTICLE II. QUASI - JUDICIAL MATTERS Section 34-31. Intent. The intent of this ordinance is to establish procedures to ensure procedural due process and maintain citizen access to the local government decision-making process for the review of development orders requiring quasi-judicial hearings. These procedures shall be applied and interpreted in a manner recognizing both the legislative and judicial aspects of the local government decision-making process in quasi-judicial hearings. They shall only apply to the hearings held by the board with the authority to make the final decision in regard to the development order. Section 34-32. Applicability. Except as may otherwise be provided by statute or ordinance, these procedures shall apply to all applications for site-specific rezonings, special exceptions, conditional use approvals, variances, plats, and any other land use proceeding in which the Board acts in a quasi-judicial capacity. Section 34-33. Definitions. (1) Application shall mean an application for any one of the following permits: (a) (b) (c) (d) Variances. Conditional use approvals. Plat approvals. Site-specific rezonings. (e) Special exceptions. Ordinance No. 2001-__ Page 3 (f) Any other site specific development approval determined to be quasi- judicial by the city attorney. (2) Applicant shall mean the owner of record, the owner's agent, or any person with a legal or equitable interest in the property for which an application for a development order has been made and which is subject to quasi judicial proceedings, and shall mean the Staff when the Application is initiated by the City. (3) Commission shall mean the City of Aventura City Commission. (4) Commissioner shall mean a City Commissioner. (5) Competent substantial evidence shall mean testimony or other evidence based on personal observation, or fact or opinion evidence offered by an expert on a matter that requires specialized knowledge, that is relevant to the issue to be decided. Competent substantial evidence is evidence a reasonable mind could accept as adequate to support a conclusion. (6) Comprehensive plan shall mean the City Comprehensive Plan which has been adopted pursuant to Part II, Chapter 163, Florida Statutes. (7) Development Order shall mean the written decision of the Commission regarding an Application considered under quasi-judicial proceedings pursuant to this Article II, and shall include a letter from the Director of the Community Development Department memorializing a decision of denial from the Commission. (8) Ex-parte communication shall mean any written, oral, or graphic communication with a Commissioner which may relate to or which could influence the disposition of an Application, other than those made on the record during a quasi-judicial hearing. This term also includes visiting the site of the Application, receipt of expert opinions, and any independent investigations by a Commissioner. (9) Expert shall mean a person who is qualified in a subject matter by knowledge, skill, experience, training, or education. (10) Material fact shall mean a fact that bears a logical relationship to one (1) or more issues raised by the Application or the laws and regulations pertaining to the matter requested by the Application. (11) Participants shall mean members of the general public, other than the Applicant, including experts and representatives of local governments and governmental agencies, who offer testimony at a quasi-judicial hearing for the purpose of being heard on an Application. Ordinance No. 2001-__ Page 4 (12) Party shall mean the Applicant, the City Staff, and any person recognized by the Commission as a qualified intervenor. (13) Quasi-judicial proceeding shall mean a hearing held by the Commission to adjudicate the private tights of an Applicant by means of a hearing which comports with these regulations and due process requirements. (14) Relevant evidence shall mean evidence which tends to prove or disprove a fact that is material to the determination of the Application. (15) Staff shall mean members of the City staff. Section 34-34. Ex-parte Communications. (1) This section is adopted to follow the disclosure processes of Section 286.0115(1), Florida Statutes (2000), and shall be construed so as to be consistent therewith. (2) Any Commissioner may choose to discuss the merits of any matter of which action may be taken by the Commission with any person not otherwise prohibited by statute, charter provision, or ordinance if the Commissioner complies with the procedures of this Section 34-34. (3) Compliance with the procedures of this Section 4 shall remove the presumption of prejudice arising from ex-parte communication with any Commissioner: (a) Oral communications. The subject of the communication and the identity of the person, group, or entity with whom the communication took place shall be disclosed and made a part of the record before final action on the Application. At the quasi-judicial heating the person or persons responsible for the ex-parte communication, any Party to the heating and any Participant shall have the opportunity to contest the accuracy of the matters disclosed. (b) Written communications. Any written communication related to an Application pending before the Commission shall be forwarded to the appropriate staff for inclusion in the official file for the Application, and shall be disclosed on the record before final action on the matter. It shall be the responsibility of the Applicant to review the official file periodically to determine whether written ex-parte communications have been placed in the official file. (c) Investigations and Site Visits. Commissioners may conduct investigations and site visits and may receive expert opinions regarding a quasi-judicial action pending before them. Such activities shall not be presumed prejudicial to the action if the existence and subject matter of the Ordinance No. 2001-__ Page 5 investigations, site visits, or expert opinions is made a part of the record before final action on the matter and an opportunity for the Parties and Participants to respond is provided prior to or at the hearing. (4). Commissioners must make disclosures of their ex-parte communications before or during the public meeting at which a vote is taken on the Application to afford persons a reasonable opportunity to refute or respond to the communication. Section 34-35.General procedures. (1) Each Party shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine opposing witnesses on any relevant matter (subject to the rules contained herein), and to rebut evidence. (2) Staff shall have the responsibility of presenting the case on behalf of the City. The Staff Report on the Application shall be made available to the Applicant and the Commission no later than twenty-four (24) hours prior to the quasi-judicial hearing on the Application. (3) Official file. All written communication received by Commissioners or Staff concerning an Application, the Staff Report on the Application, any petitions or other submissions from the public, and all other documents pertaining to the Application upon receipt shall be filed in the official file for the Application, which shall be maintained by Staff. The Comprehensive Plan and the City Code of Ordinances shall be deemed to be part of the official file. The official file shall be available for inspection during normal business hours. (4) The printed agenda for the meeting at which the quasi-judicial heating is scheduled to take place shall briefly explain the procedures and nature of the quasi- judicial hearing. Section 34-36. Hearing Procedures. (1) The hearing shall, to the extent possible, be conducted as follows: (a) The Mayor or City Attorney shall read a statement at the beginning of the quasi-judicial hearing portion of the agenda, which shall outline the procedure to be followed. A copy of this Ordinance shall be made available at the hearing. (b) The Applicant, Staff, and all Participants requesting to speak shall be collectively sworn by oath or affirmation. (c) The Applicant may waive its tight to an evidentiary hearing if it agrees with the Staff recommendation and no one from the audience wishes to speak Ordinance No. 2001-__ Page 6 for or against the Application. The Commission may then vote on the item, based upon the Staff Report and any other materials entered by Staff from the official file into the record of the hearing. (d) If there is an evidentiary hearing, the order of the presentation shall be as follows, unless the Commission agrees to a different order, taking proper consideration of fairness and due process: i. Staff shall present a brief synopsis of the application; introduce any appropriate additional exhibits from the official file which have not already been transmitted to the Commission with the agenda materials, as Staff desires; summarize issues; and make a recommendation on the Application. Staff shall also introduce any witnesses that it wishes to provide testimony at the hearing. ii. The Applicant shall make its presentation, including offering any exhibits from the official file, and introduce any witnesses as it desires. iii. Participants in support of the Application shall make their presentations. iv. Participants in opposition to the Application shall make their presentations. v. Staff may cross-examine any witnesses and respond to any testimony presented. If any witness is unavailable at the hearing to be cross-examined, his testimony shall be disregarded. vi. The Applicant may cross-examine any witnesses and respond to any testimony presented. If any witness is unavailable at the hearing to be cross-examined, his testimony shall be disregarded. vii. The Mayor may choose to allow Participants to respond to any testimony if the Mayor deems the response to be necessary to ensure fairness and due process. viii. The Commission may ask any questions of the Staff, Applicant and Participants. ix. Final argument may be made by the Staff, related solely to the evidence in the record. x. Final argument may be made by the Applicant, related solely to evidence in the record. Ordinance No. 2001-__ Page 7 xi. A qualified intervenor may make a presentation, conduct cross- examination and make final arguments in the order as decided by the Commission. (e) The Mayor shall keep order, and without requiring an objection, may direct a Party conducting the cross-examination to stop a particular line of questioning that merely harasses, intimidates or embarrasses the individual being cross-examined, is unduly repetitious, not relevant or beyond the scope of the testimony by the individual being cross-examined. If the Party conducting the cross-examination continuously violates directions from the Mayor to end a line of questioning deemed irrelevant and merely designed to harass, intimidate or embarrass the individual, the Mayor may terminate the cross- examination. (f) After the presentations, and at the conclusion of any continuances, the Commission shall deliberate on the Application. Once the Commission begins its deliberations, no further presentations or testimony shall be permitted except in the sole discretion of the Commission. The Commission's decisions must be based upon competent substantial evidence in the record. (2) The Commission may, on its own motion or at the request of any person, continue the hearing to a fixed date, time, and place. The Applicant shall have the right to one (1) continuance; however, all subsequent continuances shall be granted at the sole discretion of Commission. (3) The Applicant may withdraw an Application by requesting such withdrawal in writing. If an Application is withdrawn, that Application or any similar Application for the same site shall not be accepted for review for a period of one (1) year. Section 34-37. Rules of Evidence. (1) The Commission shall not be bound by the strict rules of evidence, or limited only to consideration of evidence which would be admissible in a court of law. (2) The Commission may exclude evidence or testimony which is not relevant, material, or competent, or testimony which is unduly repetitious or defamatory. (3) The Commission will determine the relevancy of evidence. (4) Matters relating to an Application's consistency with the City Comprehensive Plan or Land Development Regulations will be presumed to be relevant and material. Ordinance No. 2001-__ Page 8 (5) Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient by itself to support a finding unless it would be admissible over objection in a court. (6) Documentary evidence may be presented in the form of a copy of the original, if available. A copy shall be made available to the Commission and to the Staff no later than two days prior to the hearing on the Application. Upon request, the Applicant and Staff shall be given an opportunity to compare the copy with the original. Oversized exhibits shall be copied and reduced for convenient record storage. (7) Only the Applicant, Staff and the Commission shall be entitled to conduct cross- examination when testimony is given or documents are made a part of the record. (8) The City Attorney shall represent the Commission and advise the Commission as to the procedures to be followed and the propriety and admissibility of evidence presented at the hearing. (9) The Commission shall take judicial notice of all state and local laws, ordinances and regulations and may take judicial notice of such other matters as are generally recognized by the courts of the State of Florida. (10) Supplementing the record after the quasi-judicial hearing is prohibited, unless specifically authorized by an affirmative vote of the Commission under the following conditions: (a) The supplementation occurs after a quasi-judicial hearing is continued but prior to final action being taken on the Application. (b) If a question is raised by the Commission at the heating which cannot be answered at the heating, the Party to whom the question is directed may submit the requested information in writing to the Commission after the quasi- judicial heating, with copies to the other parties, provided the heating has been continued or another heating has been scheduled for a future date and no final action has been taken by the Commission. The information requested will be presented to the Commission at the time of the continued heating. (c) All Parties and Participants shall have the same right with respect to the additional information as they had for evidence presented at the hearing. Section 34-38. Final Decision by the Commission. The Commission shall reach a decision without unreasonable or unnecessary delay, which shall be adopted by the Commission in writing and dated as of the date issued and shall indicate the date filed in the City Clerk's office. Notification of the Commission's Development Order shall be provided by the Director of the Ordinance No. 2001-__ Page 9 Community Development Department to the Applicant by certified mail, and made available to any person who requests a copy from the City Clerk. Section 34-39. The Record. All evidence admitted into the record at the hearing, and the adopted Development Order of the Commission, shall be maintained by the City Clerk for a period of at least 45 days from issuance of the Development Order. .Section 4. Severability. That 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 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 5. Inclusion in the Code. It is the intention of the City Commission, and it is hereby ordained that the provisions of this Ordinance shall become and made a part of the Code of the City of Aventura; that the sections of this Ordinance may be renumbered or relettered to accomplish such intentions; and that the work "Ordinance" shall be changed to "Section" or other appropriate word. Section 6. Effective Date. This Ordinance shall be effective immediately upon adoption on second reading. The foregoing Ordinance was offered by Commissioner its adoption on first reading. The motion was seconded by Commissioner upon being put to a vote, the vote was as follows: , who moved and, Commissioner Arthur Berger Commissioner Jay R. Beskin Commissioner Manny Grossman Commissioner Harry Holzberg Commissioner Patricia Rogers-Libert Ordinance No. 2001-__ Page 10 Vice Mayor Ken Cohen Mayor Jeffrey M. Perlow The foregoing Ordinance was offered by Commissioner adoption on second reading. The motion was seconded by Commissioner upon being put to a vote, the vote was as follows: , who moved its , and, Commissioner Arthur Berger Commissioner Jay R. Beskin Commissioner Manny Grossman Commissioner Harry Holzberg Commissioner Patricia Rogers-Libert Vice Mayor Ken Cohen Mayor Jeffrey M. Perlow PASSED on first reading this day of PASSED AND ADOPTED on second reading this __ ,2001. day of ,2001. ATTEST: JEFFREY M. PERLOW, MAYOR TERESA M. SOROKA, CMC CITY CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: CITY ATTORNEY PLANNING AND ZONING § 34-31 ARTICLE I. IN GENERAL Sec. 34-1. Reserved. Editor's note Ord. No. 99-09, § l(Exh. A, § 201), adopted July 13, 1999, added new provisions to this Code which in effect superseded prov/sions formerly set out as § 34-1. Former § 34~1 pertained to local planning agency designated and derived from Ord. No. 96~27, § 1, adopted Nov. 19, 1996. See. 34-2. Fees for zoning and planning applications. The City is hereby authorized to impose fees for the filing and processing of zoning and planning applications, including but not limited to applications for variances, rezonings, Co~nprehensive Plan amendments, appeals of administrative niterpretations and other zoning or planning related services provided by the Community Development Department. Such fees shall be set and may be amended from time to time by resolution of the City Commission following a public hearing. (Ord. No. 96-22, § 2, 10-2-96) Sec. 34-3. Comprehensive Plan. (a) Adoption of Plan. The goals, objectives and policies of the City of Aventura Comprehen- sive Plan, attached to Ordinance No. 98-27 as Exhibit "A" and incorporated herein by reference, are hereby adopted as the Comprehensive Plan of the City of Aventura, Florida, in accordance with the Local Government Comprehensive Planning and Land Development Regulation Act. (b) Replacement of County Comprehensive Plan. Upon adoption, the City of Aventura Comprehensive Plan shall serve to replace the Miami-Dade County Comprehensive Plan, previously applicable pursuant to F.S. § 163.3167(4), and City Charter section 8.03, to the fullest extent allowed by law. (Ord. No. 98-27, §§ 2, 4, 12-15-98) Editor's note--The City's Comprehensive Plan, referred to in § 34-3 above, has not been included within this Code, but may be found attached as Appendix "A" to Ordinance No. 98-27, adopted Dec. 15, 1998, on file in the office of the City Clerk. State law reference--Local Government Comprehensive Planning and Land Develop- ment Regulation Act, F.S. § 163.3161 et seq. Sees. 34-4--34-30. Reserved. ARTICLE II. QUASI-JUDICIAL MATTERS* Sec. 34-31. Ex parte communications with public officials. Communications with local public officials, as defined in F.S. § 286.0115(2), regarding quasi-judicial matters (as defined in Board of County Commissioners of Brevard County v. *Cross reference Lobbying activities, § 2-371 et seq. State law reference--Access to local public officiais, quasi-judicial proceedings on local government land use matters, F.S. § 286.0115. Supp. No, 4, Rev. CD34:3 ,,__ ,, § 34-31 AVENTURA CODE Snyder, 627 So.2d 469 (Fla. 1993), including the adjudication of the rights of persons and the application of a general rule or policy to a specific individual, property, interest or activity~ shall be governed by the following procedure. Any person not otherwise prohibited by statute, Charter provision or ordinance may discuss with any local public official representing the City the merits of uny matter on which action may be taken by any board, council or commission on which the local public official is a member. Such communication shall not raise any presumption of prejudice provided that the following process of disclosure occurs: (1) The subject and substance of any ex parte communication with a local public official representing the City which relates to quasi-judicial action pending before the official, as well as the identity of the person, group or entity with whom the communication took place, shall be disclosed and made a part of the record before final action is taken on the matter. (2) A local public official representing the City may read a written communication from any person; however, a written communication that relates to quasi-judicial action pending before such official shall be made a part of the record before final action is taken on the matter. (3) A local public official representing the City may conduct investigations, make site visits and receive expert opinions regarding quasi-judicial action pending before him, provided that such activities and the existence of such investigations, site visits or expert opinions is made a part of the record before final action is taken on the matter. (4) Disclosure made pursuant to subsections (1), (2) and (3) of this section 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. (Ord. No. 96-09, § 1, 7-16-96) Sec. 34-32. Hearing procedures. Unless otherwise provided by law, or by resolution of the City Commission pertaining to a specific matter, quasi-judicial hearing procedures shall be substantially as follows: (1) Purpose. It is the purpose of this section to provide a fair, open and impartial procedure for the consideration by members of the City Commission of quasi-judicial matters in the course of quasi-judicial proceedings. (2) Definitions. For purposes of this section, the following definitions shall apply: a. Applicant means an individual, corporation or other authorized legal entity filing an application or an appeal which initiates a quasi-judicial proceeding, including City staff and the City Commission. b. Application means an application for a site-specific rezoning, variance, special exception or conditional use permit, or other request for a quasLjudicial proceed- ing or appeal as authorized by the City's zoning ordinance. Supp. No. 4, Rev CD34:4 PLANNING AND ZONING § 34 32 (3) c. City staff means an employee or agent of the City. d. Member means a member of the City Commission. e. Chair means the Mayor, unless otherwise provided. Proceedings. a. Legal representation. 1. Applicants may be represented by legal counsel. 2. The City Commission shall 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, other than members of City staff, who addresses the City Commission shall give the following information: 1. Name; 2. Address; and 3. Whether the person speaks for himself, a group of persons, or a third party. If the person says that he represents an organization, he shall also indicate whether the view expressed by the speaker represents an established policy of the organization approved by the board or governing body. 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 to the City Attorney before the hearing. 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 through the Chair. 2. The applicant, witnesses, City staff and all participants asking to speak shall be sworn, excluding attorneys, unless the attorney intends to testify. 3. The Chair shall decide any parliamentary objections and objections to evidentiary matters with the advice of the City Attorney. 4. The City staff shall present its report, 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. The opposition shall have the right to cross examine individual speakers. 8. Members may ask questions of any speaker through the Chair. 9. Participants in opposition to the application shall present their testimony and evidence. Supp No. 3 CD34:5 § 34-32 AVENTURA CODE 10. The applicant shall have the right to cross examine individual speakers. 11. Members may ask questions of any speaker through the Chair. ~12. City staff shall be given time for rebuttal, if requested. City staff shall be subject to cross examination. 13. Any other, member of the public may testify and present evidence, and such persons are subject to cross examination. 14. The applicant shall be given time for rebuttal, if requested. 15. The Chair closes the public 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. d. Record of 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 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 at any time during normal business hours. (Ord. No. 96-09, § 2, 7-16-96) See. 34-33. Public statements by Commissioners. (a) The Mayor and Commissioners shall each avoid publicly expressing their intention, either directly or indirectly, to vote foe or against a pending quasi judicial matter or working to influence public opinion upon a pending quasi judicial matter, prior to hearing held pursuant to City Code section 34-32. A quasi judicial matter is pending when an application has been filed pursuant to City Code section 34-32. (b) The failure to comply with the restriction provided in paragraph (a) of this section shall not invalidate any action or decision of the City Commission so long as the decision or action of the City Commission is supported by competent substantial evidence of record as required by law. (c) Any members of the City Commission violating the standard of conduct set forth above shall be subject to public censure by the City Commission, subject to rules adopted by the City Commission providing the accused Commissioner with a fair hearing, including an opportunity to be heard. The Commission reserves the right, by subsequent ordinance to prospectively implement other sanctions, in the event that the sanction provided for above is not effective in implementing the purposes of this section. (Ord. No. 98-23, § 1, 10-6-98) Sees. 34-34 34-40. Reserved. Supp. No. 3 CD34:6 h v ntC y of M,.UTES U~ ELECTIONS SUB-COMMMITTEE Aventura Government Center 2999 NE 191 ~ Street Suite 500 ~ MEETING Aventura, Florida 33180 · TUESDAY, APRIL 10, 2001 4 PM The meeting was called to order at 4:10 p.m. by Vice Mayor Ken Cohen. Present in addition to the Vice Mayor were Commissioners Patricia Rogers-Libert, Manny Grossman, City Manager Eric M. Soroka, and City Clerk Teresa M. Soroka. Vice Mayor Cohen stated the purpose of the meeting was to discuss ways to increase voter turnout at municipal elections. After discussion, it was consensus of the Committee to recommend the following action be taken relative to the Charter Revision Election scheduled for May 15, 2001: 1) In addition to the required legal publications, publish notice of the election in the Aventura News and Hallandale Digest; 2) Place signs in City's shuttle busses and the swale areas in the City similar to those used for other special events reminding residents to vote on May 15th; 3) Publish ballot questions in City Newsletter; 4) Approve use of "1 Voted" stickers on election day; 5) Schedule one Town Hall Meeting for Charter Revision Commission member to discuss proposed Charter amendments. It was noted that in the future, notice of upcoming elections should be placed on the cable television station utilized by the City. At the suggestion of the City Clerk, Committee recommended changing composition of the Canvassing Board to three members: City Clerk, Miami-Dade County Supervisor of Elections or his designee, and a judge (preferably a resident of the City). The meeting adjourned at 4:55 p.m. hi T?~ga M, S0'rokal'~CMC, [City Clerk COHEN 1 FOX,.^. ATTORNEYS AT LAW Miami Center · Suite 850 20l South Biscayne Boulevard, Miami, Florida 33131 Telephone (305) 702-3000 / Fax (305) 702-3030 E-Mail: prevail@CohenFox.com March 27, 2001 PRIVILEGED SETTLEMENT DISCUSSION Eric M. Soroka, City Manager City of Aventura Government Center 2999 NE 191 Street, Suite 500 Aventura, Florida 33180 Re: Present/Mutchnik v. City of Aventura Bert J. Harris, Jr., Private Property Rights Act claim Dear Mr. Soroka: As you know, this firm represents Ruth Present and Marion Mutchnik with regard to certain claims trader the Bert J. Harris, Jr., Private Property Rights Act. The property in question is located at Northeast 28~' Avenue and 218th Street, and is identified at Folio Number 28-1234-001-0220 (hereinafter "the Property"). We have reviewed Mr. Bierman's letter ofAugust 7, 2000, and have had further discussions since that time, in an effort to resolve these disputes, but to date the parties have been unable to reach an accord on the issues. As you know, we have just recently resolved similar issues related to a separate parcel of property. My clients remain equally committed to their intention to file the appropriate legal action to protect their rights and pursue all available remedies in this matter. Before doing so, however, we would like to follow up on the discussions you recently had with my clients regmding an effort to resolve these issues without the need f6r htigation. To that end, my clients have authorized me to advise you they would release their claim in exchange for the following: The City will provide all necessary approvals, variances or other actions necessary to entitle the owner(s) of the Property to construct and utilize on the Property any of the following buildings/uses up to 20 stories: A. A medical office building or other facility for delivery of medical services; B. An assisted living facility; FIAR 2 R 2001 Eric M. Soroka, City Manager City of Aventura March 27, 2001 Page 2 C. An adult congregate living facility; Rental apartments; Any other use which is currently permitted in an RMF4 district, or which shall subsequently be permitted; Any other use which is :~urrently permitted in an OP district, or which shall subsequently be permitted; Any other use which is currently permitted in an MO district, or which shall subsequently be permitted; Any other use which is currently permitted in a CF district or which shall subsequently be permitted. The right to utilize the Property in the manner noted above would be transferrable, so that in the event of sale of the Property, the new owner would remain entitled to the enumerated uses. All comments in this letter and in any discussion following up on it are strictly for purposes of exploring settlement opportunities, and shall not be used in an,/litigation which may become necessary. Naturally, we would like to get this matter resolved as quickly and as reasonably possible. Accordingly, we would greatly appreciate your response when you have had an opportunity to review it and consider this proposal. If there are any questions or comments regarding the matter, please feel free to contact Ed Polk or me. Thank you for your consideration of this matter. Mrs. Rnth Present Mrs. Marion Mutchnik Mitchell A. Bierman, Esquire Sincerely, COHENIFOXP.^ MIAMI-DADE PUBLIC LIBRARY SYSTEM MAIN LIBRARY, 101WEST FLAGLER ST., M AML FL 33130-1523 · (305)375-5026 · FAX(305)375-5545 Raymond Santiago Director April 16, 2001 Eric Soroka, City Manager City of Aventtwa Goverrm~ent Center 2999 NE 191 Street, #500 Avenv,.~m, FL 33180 Dear Mr. Soroka: Thank you for taking the time to meet with me, and Leo Gomez from the Library Staff, last Friday. As I mentioned in our meeting, I am directing staff to begin the process of securing the services of an architect to assist us in visual a concept for the renovation of the Nmtheast branch as well as to develop sketches and a cost estimate for such a plan. I will contact you in a couple of weeks to set up a commktee made up of Library staff, members of your staff and community representative that will meet with the architect and give input into the renovation design. Once the renovation plan is developed, we will then begin the process of identifying all possible funding sources, county, city, state and federal that will make k a real/ty, k is my hope that by September or October we should have proposed a renovation plan and schedule for completion ready for presentation to the Aventura City Council and the Board of County Comm/ssioners. Again, thank you for your time and I look forward to working with you and your staff on this project. }(ayn~onAantiago Director of Libraries RS/th CC: Alina Tejeda Hudak Senior Assistant, Office of the County Manager O¥:F&CE OF THE CITY MANAGER