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2001-06 ORDINANCE NO. 2001 06 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 THEM 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Judicial Matters" of Chapter 34 "Planning and Zoning" of the City Code, as attached as Exhibit "A" hereto, are hereby repealed.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. 2001-06 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 II "Quasi Judicial Matters" of Chapter 34 "Planning and Zoning," of the City Code, are hereby created as follows: ARTICLE I1. 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. 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 Commission acts in a quasi-judicial capacity. Section 34-33. Definitions. (1) Application shall mean an application for any one of the following permits: (a) Variances. (b) Conditional use approvals. (c) Plat approvals. (d) Site-specific rezonings. (e) Special exceptions. Ordinance No. 2001-06 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) Chair shall mean the Mayor or, in the Mayor's absence, the Vice Mayor. (4) Commission shall mean the City of Aventura City Commission. (5) Cornrnissionershall mean a City Commissioner. (6) 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. (7) Comprehensive plan shall mean the City Comprehensive Plan which has been adopted pursuant to Part II, Chapter 163, Florida Statutes. (6) 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. (9) 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. (10) Expert shall mean a person who is qualified in a subject matter by knowledge, skill, experience, training, or education. (11) Intervenor shall mean a person whose interests in the proceeding are adversely affected in a manner greater than those of the general public. 3 Ordinance No. 2001-06 Page 4 (12) 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. (13) 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. (14) Party shall mean the Applicant, the City Staff, and any person recognized by the Commission as a qualified Intervenor. (15) Quasi-judicial proceeding shall mean a hearing held by the Commission to adjudicate the private rights of an Applicant on an Application listed in Section 34-33(1) above, by means of a hearing which comports with these regulations and due process requirements. (16) Relevant evidence shall mean evidence which tends to prove or disprove a fact that is material to the determination of the Application. (17) 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, Section 34-40 or other 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 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. 4 Ordinance No. 2001-06 Page 5 (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 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 hearing is scheduled to take place shall briefly explain the procedures and nature of the quasi-judicial hearing. Ordinance No. 2001-06 Page 6 Section 34-36. Hearing Procedures. (1) The hearing shall, to the extent possible, be conducted as follows: (a) The Chair 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 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 evidentiary hearing, the order of the presentation shall be as follows, unless the Chair 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 Ordinance No. 2001-06 Page 7 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 Chair may choose to allow Participants to respond to any testimony if the Chair deems the response to be necessary to ensure fairness and due process. viii. Commissioners, through the Chair, 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. xi. A qualified Intervenor may make a presentation, conduct cross-examination and make final arguments in the order as decided by the Chair. (e) The Chair 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 Chair to end a line of questioning deemed irrelevant and merely designed to harass, intimidate or embarrass the individual, the Chair 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 7 Ordinance No. 2001-06 Page 8 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 Chair may exclude evidence or testimony which is not relevant, material, or competent, or testimony which is unduly repetitious or defamatory. (3) The Chair 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 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, qualified Intervenor, 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 Chair and Commission as to the procedures to be followed and the propriety, relevancy and admissibility of evidence presented at the hearing. 8 Ordinance No. 2001-06 Page 9 (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 hearing which cannot be answered at the hearing, the Party to whom the question is directed may submit the requested information in writing to the Commission after the quasi-judicial hearing, 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 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 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 in a hearing file 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 Ordinance No. 2001-06 Page 10 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 Rogers-Libert, who moved its adoption on first reading. The motion was seconded by Vice Mayor Cohen and, upon being put to a vote, the vote was as follows: Commissioner Arthur Berger yes Commissioner Jay R. Beskin yes Commissioner Manny Grossman yes Commissioner Harry Holzberg yes Commissioner Patricia Rogers-Libert yes Vice Mayor Ken Cohen yes Mayor Jeffrey M. Perlow yes The foregoing Ordinance was offered by Commissioner Berger, who moved its adoption on second reading. The motion was seconded by Commissioner Holzberg, and, upon being put to a vote, the vote was as follows: Commissioner Arthur Berger yes Commissioner Jay R. Beskin yes Commissioner Manny Grossman yes Commissioner Harry Holzberg yes Commissioner Patricia Rogers-Libert absent Vice Mayor Ken Cohen yes Mayor Jeffrey M. Perlow yes PASSED on first reading this 1st day of May, 2001. 10 Ordinance No. 2001- Page 11 PASSED AND ADOPTED on second reading this 5th day of June, 2001. 'J'EFF'~EY M. ~:~RLOW, MAYOR ATT.EST: ~E,~t~SA M. SCi~OFA, C~C C1TY CLERK APPROVED AS TO FORM AND LEGAL SUFFICIENCY: CITY ATTORNEY t!