HomeMy WebLinkAboutCity of Tamarac Ordinance O-2007-015Temp. Ord. #2142
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CITY OF TAMARAC, FLORIDA
ORDINANCE NO. 2007- I,
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
TAMARAC, FLORIDA; AMENDING CHAPTER 2 OF THE CITY
OF TAMARAC CODE OF ORDINANCES, ENTITLED
"ADMINISTRATION", BY CREATING ARTICLE X, TO BE
ENTITLED "QUASI-JUDICIAL PROCEEDINGS"; CREATING
SECTIONS 2-367 THROUGH 2-370 OF THE CITY OF TAMARAC
CODE OF ORDINANCES; PROVIDING FOR THE INTENT;
PROVIDING FOR DEFINITIONS; IDENTIFYING QUASI-JUDICIAL
MATTERS; PROVIDING PROCEDURES FOR QUASI-JUDICIAL
PROCEEDINGS, INCLUDING, BUT NOT LIMITED TO, EX
PARTE COMMUNICATIONS, NOTIFICATION, PRESENTATION
OF EVIDENCE AND PREPARATION OF THE ORDER;
PROVIDING FOR CODIFICATION; PROVIDING FOR CONFLICT;
PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the Florida Supreme Court has determined that the application of a
general rule or policy to specific individuals, interests, or activities, based on testimony
presented at a hearing, that does not affect a large portion of the public is quasi-judicial
in nature; and
WHEREAS, the State Legislature has adopted a process to disclose ex parte
communications in quasi-judicial proceedings with local government officials so that
such communications will not be presumed to be prejudicial to the proceeding; and
WHEREAS, the City Commission of the City of Tamarac has determined it to be
in the best interests of the citizens and residents of the City to adopt procedures related
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to quasi-judicial proceedings, including a process whereby ex parte communications
may be disclosed in an effort to avoid a prejudicial impact on quasi-judicial proceedings.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA THAT:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this
Ordinance upon adoption hereof.
SECTION 2: The City Commission of the City of Tamarac hereby amends
Chapter 2, entitled "Administration," of the City of Tamarac Code of Ordinances by
creating Article X, to be entitled "Quasi -Judicial Proceedings", as follows:
Article X. Quasi -Judicial Proceedings
Sec. 2-367 Intent
It is the intent of the city to provide an equitable and efficient
manner for the city to hear matters which are considered quasi-judicial in
nature. Notwithstanding other provisions of the Cit 's Code of
Ordinances, sections 2-367 through 2-370 set forth the City's procedures
to be utilized for quasi-judicial proceedings. These procedures shall be
utilized by the City Commission and all City Boards in regards to
hearings on quasi-judicial matters in which their body is the final
authority.
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Sec.2-368 Definitions.
As used in this Article, the terms listed below shall be defined as
follows:
(1) Affected Person means a person (or persons), natural or
corporate, who is the owners of the subject property or who owns
property within four hundred (400) feet of the, subject property as
listed_ in the records of the County property appraiser, or who
p hundred f400) feet of
resides in or operates a business within four
the subject property.
(2) Board means any Board, Committee or Commission as
defined by Article III of the Cit 's Code of Ordinances including
the Planning Board, as provided by Section 24-61 of the City's
Code of Ordinances.
3) City or Citv Commission means the Citv Commission of the
City of Tamarac, Florida.
(4) Local Public Official means any elected or appointed public
official holding _a city office who recommends to take quasi-judicial
action as a member of a Board or Commission.
5 Party or Parties means the petitioner, City, and any Affected
Person who has requested to be heard at the proceeding.
(6) Quasi -Judicial in Nature means the application of _a general
rule or policy to specific individuals, interests, or activities.
7) Quasi -Judicial Proceedinq means hearing held by a Board or
the City Commission to adjudicate private rights of a particular
person after a hearing which comports with due process
requirements, and makes findings of fact and conclusions of law
on the issue
$ Site Specific means an individual piece of real estate which
can be clearly defined by street address legal description or
similar means at a single identifiable location.
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Sec. 2-369 Quasi -Judicial Matters
(1) For the purpose of this article, the following matters,
regardless of whether the final determination is made by the Cit
Commission or a Board shall be considered to bequasi-judicial:
a Sitespecific rezonin s and siteplans;
(b) Site specific land use amendments;
c Variances including,but not limited to trees signs,
setbacks distance requirements between buildings or other
variances permitted by the City Code.
(d) Plat approvals;
e Special Exceptions which relate to the use of land and
business.
Sec. 2-370 Procedures for Quasi -Judicial Proceedings
1 Ex parte oral communications.
Ex parte communications are not presumed premuclicial provided
any disclosure re uired in subsections a b or c below is
made before or during the public meeting at which_a vote is taken
on the matter.
(a) The substance of any ex parte communication with a
local public official that relates toquasi-judicial action
pending before the official is not presumed prejudicial to
the action if the subl ct of the communication and the
identity of the person, group or entity with whom the
communication took place is disclosed and made a part of
the record.
(b) A local public official may read a written communication
from any person. However, a written communication that
relates toquasi-judicial action pending before a local public
official shall not be presumed prejudicial to the action and
such written communication shall be made a part of the
record before final action on the matter.
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c Local public officials may conduct investigations and
site visits and may receive expert opinions regarding quasi-
judicial action pending before them. Such activity shall not
be presumed premudicial to the action if the existence of the
investigation, site visit or expert -opinion is made apart of
the record before final action on the matter.
d Notwithstanding the provisions of this section above in
quasi judicial proceedings on local government land use
matters, a_ person may not be precluded from
communicating__directly with a member of the decision -
making body by application of ex parte communications
rohibitions. Disclosure of such communications by a
member of the decision -making body is not required, and
such nondisclosure shall not be presumed prejudicial to the
decision of the decision -making body. All decisions of the
decision -making _body must be supported by substantial,
competent evidence in the record pertinent to the
proceedings, irrespective of such communications.
2 Notification and required forms to be completed by affected
erson s the petitioner and the City.
a At least seven 7 calendar days prior to the proceeding,
City shall provide a legal advertisement to be published in a
newspaper of general paid circulation in Broward County
and of general interest and readership in the community.
not one of limited subject matter. Said notice shall state the
name of the petitioner for the requested action, the date,
time and location of the proceeding, and the location and
times where and when the petition and any back-up
information may be reviewed. In addition the notice shall
inform all affected persons that they will be allowed to
resent evidence at the hearing,bring forth witnesses and
cross-examine witnesses provided they notify and file the
required forms provided by the city clerk's office, the
substance of which is described in subsection Ldbelow, at
least seven (7) calendar days prior to the proceeding_
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(b) No later than fourteen (14) calendar days prior to the
proceeding, a mail notice containing the same information
as the legal advertisement shall be sent to each real
property owner within four hundred (400) feet of the subject
property as each is listed in the records of the count
property appraiser. Mail notice may be _provided by bulk
mail first class mail or certified mail return receipt
requested.
c All cost for notification shall be paid by the petitioner.
Notification costs expended by the City Clerk's Office and
reimbursed by the petitioner shall go directly back to the
City Clerk's Office. Funding and reimbursement costs shall
be evaluated on a project -specific basis.
d Any affected person desiring to testify, resent
evidence bring forth witnesses or cross-examine
witnesses at the proceeding shall complete the required
forms provided by the city clerk's office which forms shall at
a minimum 1 set forth the affected persons name
address and telephone number which shall serve as notice
to the petitioner and the cif of the affected person°_s_intent
to appear at the proceeding to testify, resent evidence
bring forth witnesses, or cross-examine witnesses; O set
forth the names, addresses and telephone number of all
witnesses including consultants or experts to testify on their
behalf; (3) provide copies ofall documents,
correspondence, memoranda or other evidence the
affected person intends to present, use or make reference
to during the proceeding,4 indicate whether the affected
person is for or against thepetition; and 5 indicate how
the affected person qualifies as an affected person. The
required form must be completed and returned to the city
clerk's office at least seven U calendar days before the
proceeding.
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(e) The petitioner and the City ,shall also complete the
required forms, provided by the city clerk's office, described
in subsection (d) above. The completed form shall be
returned to the city clerk's office within the time set forth in
subsection (d) above_
(3) Presentation of evidence.
a All persons testifying before a Board or the Cit
Commission must be sworn in. The petitioner, members of
a Board or the City Commission and any affected person
who has _provided notice that it intends to appear at the
proceeding shall be given the opportunity to present
evidence, bring forth witnesses, and cross-examine any
witnesses.
b) All evidence relied upon by reasonably prudent Dersons
in the conduct of their business shall be admissible
whether or not such evidence would be admissible in a
court_ of law. However, immaterial or unduly„ repetitious
evidence shall be excluded.
c 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_
(d) Documentary evidence may be presented in. the form of
a copy or the originals_ if available. Upon request, parties
shall be given an opportunity to compare the copy with the
original.
(e) A _pares shall be entitled to conduct cross-examination
when testimony is provided or documents are made a part
of the record.
(f) The office of the city attorney shall represent the Board
or the City Commission. Any questions as to the propriet
and admissibility of evidence shall be presented to the City
Attorney's Office in a timely fashion.
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(4) Quasi -Judicial Proceeding Procedure
The proceedings shall be conducted in an informal manner. Each
pares shall have the right to do the following:
(a) To call and examine witnesses;
(b) To introduce exhibits;
(c) To cross-examine opposing witnesses on any relevant
matter; and
(d) To rebut evidence.
(5) Conduct of Quasi -Judicial Proceedings_
To the extent possible, the following shall be the order of the
proceedings:
(a) Call the _ proceeding to order and announce the
beginning of the proceeding. A majority of the Board or C t
Commission members must be continuously present during
the proceeding_
(b) The matter to be heard and the rules concerning the
admissibility of evidence should be announced.
c) Statements of counsel shall only be considered as
argument and not be considered as testimony. Counsel for
parties shall not be subiect to cross-examination. The
Board or the City Commission shall have the authority to
refuse to hear anv testimonv which is irrelevant or
repetitive_
(d) The chairman of the Board or the City Commission shall
have the option of determining the order of presentation of
the parties in order to expedite the proceeding. During its
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presentation the City shall present any staff, board or other
reports on the matter as well as any comments. These
reports shall include, but not be limited to, a description of
the request of the petitioner; an analysis which includes the
consistency_ -with the City's Comprehensive Plan, if
applicable, and whether the petition does or does not meet
the reguirements_of the City Code; a listing of the exhibits
to be resented- a listing of potential witnesses; a summa
of the issues; and the staff and boards recommendations.
These reports shall include specific findings in support of
justifying a recommendation for approval or denial of the
petition.
_ approval .._.......---...__.
(ej__Pe_titioner, or his or her representative, may make a
presentation. If the__ petitioner chooses to make a
presentation it should include a description of the nature of
the petition if there is additional information that has not
been Dreviously provided to or by the Citv. In addition. the
petitioner shall introduce any exhibits „and witnesses.
(f) Parties who are in support of the petition shall make
their presentation. The parties shall introduce any exhibits
and witnesses.
(g,)Parties who are in opposition to the petition shall make
theirpresentation. The party shall introduce any exhibits
and witnesses.
(h) City personnel in attendance shall provide responses to
any party to the proceeding_
After each witness testifies or documents are made a
part of the record, a party shall be permitted to question the
witness. The questioning party is not permitted to make any
statements, only to ask auestions which are directly related
to the testimony „presented.
Final presentation by the petitioner in response to an
testimony from other pgrties.
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(k) Final presentation by the Cityin response to any
testimony from other parties.
(1) The Board or the City Commission _shall deliberate on
the petition. No further testimony shall be taken and the
members of the Board or the City Commission shall not ask
further questions of persons presenting testimony.
Board or the City Commission shall discuss the evidence
that was presented at the proceeding and vote_ on the
petition.
(6) Final Determination by the Board or City Commission
In reaching a determination as whether to grant or deny the
petition, the Board or City Commission shall:
a) Consider whether the petitioner's reauest is consistent
with the City's Comprehensive Plan, if applicable, and
(b) State with specificity the reasons for the approval or
denial of the petition. Said approval or denial may by_
reference incorporate the staff, board or other_reports.
(c) State whether or not the order is to be recorded in the
public records of Broward County, and if _applicable, that
the cost of recording shall be paid by the petitioner.
(7) Preparation of the Order
The City Attorne 's Office shall prepare the final order of the
Board or City Commission based upon the determination. The
final order shall include, but not be limited to, the finding of facts,
any conditions, requirements or limitations on the approval of the
petition. The order shall be recorded in the Broward County Public
Records. If an ordinance is re uired to be adopted upon approval
of an action by the City Commission, a final order will not be
needed unless the petition is denied.
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8) Continuances and Deferrals.
If, in the opinion of the Board or City_ Commission, any testimony
or documentary evidence or information presented^ at the
proceeding_iustifies providing additional time to allow additional
research or review in order to propgrly determine the issue
presented, the Board or City _Commission shall continue the case
to a designated time to allow for the additional research or review.
After the decision is made to continue the date to which the
proceeding shall be continued shall be announced at the
proceeding, All funds expended -by the City Clerk's Office
pursuant to this section and reimbursed by„the Petitioner shall be
directed by to the City Clerk's Office.
9 Transcription of Quasi -Judicial Proceedings
The official transcript of a voceedina shall be preserved by tape
recording or other device by the city clerk's office. Nothing
precludes any partyfrom providing a court reporter for the
proceeding_
10 Maintenance of Evidence and Other Documents.
The office of the city clerk shall retain all of the evidence and
documents presented at the proceeding, except for large scale
exhibits which shall be retained by the City Manager or his or her
designee, _ all which become a part of the public record _ of the
proceeding.
C11) Appeal of Final Determination by Board or City Commission.
The final determination of the Board or City Commission is subject
to,judicial review in a court of competent jurisdiction.
SECTION 3: It is the intention of the City Commission of the City of Tamarac
that the provisions of this Ordinance shall become and be made a part of the Code of
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Ordinances of the City of Tamarac, Florida, and that the Sections of this Ordinance
may be renumbered, re -lettered and the word "Ordinance" may be changed to
"Section," "Article" or such other word or phrase in order to accomplish such intention.
SECTION 4: All Ordinances or parts of Ordinances, Resolutions or parts of
Resolutions in conflict herewith are hereby repealed to the extent of such conflict.
SECTION 5: If any provision of this Ordinance or the application thereof to any
person or circumstances is held invalid, such invalidity shall not affect other provisions
or applications of this Ordinance that can be given affect without the invalid provision or
application, and to this end the provisions of this ordinance are to be severable.
[THIS SECTION INTENTIONALLY LEFT BLANK]
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SECTION 6: This Ordinance shall become effective thirty (30) days after adoption.
L- )
PASSED, FIRST READING this DAY OF , 2007.
PASSED, SECOND READING this � DAY OF J tom' / )1 :'. , 2007.
ATTEST:
MARION SWENSON, CIVIC
CITY CLERK
I HEREBY CERTIFY that
I have approved this
ORDINANCE as to form:
SAMUE S. GOREN
CITY ATTORNEY
11115i A9��12_
RECORD OF COMMISSION VOTE:
MAYOR TALABISCO
DIST 1: COMM. PORTNER
DIST 2: COMM. ATKINS-GRAD
DIST 3: V/M SULTANOF
DIST 4: COMM. DRESSLER
RECORD OF COMMISSION VOTE: 2ND Reading
MAYOR TALABISCO
DIST 1: COMM. PORTNER
DIST 2: COMM. ATKINS-GRAD
DIST 3: V/M SULTANOF
DIST 4: COMM. DRESSLER
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