Saturday, April 23, 2011

‘Jennings Rule’ protects everyone’s due process rights

The goal of every elected official should be constant accessibility to you to discuss any and all issues, especially those items that impact our quality of life. So you can imagine the difficulty for those same elected officials to do the exact opposite on zoning matters; to advise that they cannot talk to anyone about a development project.

I penned an article that appears in the Palmetto Bay News regarding the rational behind the “Jennings Rule” and how it affects the relationship between elected official and concerned residents.  Please click "read more" below and check out this entire article as well as a link to the actual written ‘Jennings Rule’ opinion .  I have also reproduced the full Palmetto Bay ARTICLE IV.  QUASI-JUDICIAL HEARING PROCEDURES ordinance.

CLICK HERE to review ‘Jennings Rule’ protects everyone’s due process, which is currently on the front page of the Palmetto Bay News.

CLICK HERE to view the entire written opinion of Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA 1991), rev. den., 598 So.2d 75 (Fla. 1992). posted through Google Scholar.


Sec. 2-105.  Designation.

This article shall be designated and known as the Village of Palmetto Bay quasi-judicial hearing procedures. This article shall be applicable to all village council and board meetings at which a quasi-judicial hearing takes place on an application for zoning or other land development order and appeals of administrative orders and code enforcement citations.

(Ord. No. 02-03(03-01), § 1, 1-6-2003)

Sec. 2-106.  Ex parte communications.

(a)   Intention.  Pursuant to F.S. § 286.0115, this section is intended to eliminate the presumption of prejudice that may result from ex parte communications with village council and board members and to permit site visits, the receipt of expert opinions, and the reading of mail and other communications relating to applications for zoning and other land development orders, and appeals of administrative orders and code enforcement citations. 

(b)   Definitions  . As used in this section, the following terms shall be defined as follows: 

Applicant  means an individual, corporation or other authorized representative, including the village staff, that files an application or an appeal which initiates a quasi-judicial proceeding. 

Application  means an application for a site-specific rezoning, variance, special exception, conditional use permit or other request for land development approval, an appeal of an administrative order or a denial of an application, as authorized by the village's land development regulations, or an appeal of a code enforcement citation. 

Chair  means the mayor, unless otherwise provided, and the chair person of any planning and zoning board, or code enforcement board. 

Member  means a village councilmember and a member of any planning and zoning board, or code enforcement board. 

Public participant  means a person who appears at any quasi-judicial hearing, including but not limited to a member of a homeowner's association, an officer or member of an environmental, homebuilding or development association, or a concerned citizen's organization, an official or employee of a governmental entity other than the village, a developer, a property owner, or an interested citizen, as well as any representative or attorney for any of the foregoing. A public participant does not include the applicant, a village official or village staff. 

Quasi-judicial hearing  means a public proceeding on an application for a zoning designation or map change, or any other land development permit, or an appeal from an administrative action on an application for a land development permit, substantial compliance determination, an appeal from a code enforcement citation, or any other matter in which the village is required by law to give notice and an opportunity to be heard to parties and adversely affected persons, to investigate facts, and to make findings of fact and conclusions of law. 

Site visit  means an inspection of the real property by a council or board member that is the subject of an application for a quasi-judicial order, determination or appeal. The mere act of driving by a site in the regular course of driving to a particular location, such as to work or shopping, which is not undertaken for the purpose of inspecting the particular property is not a site visit for purposes of this chapter. 

Village official  means a member of the village council or any board that is authorized to make findings of fact, conclusions of law and to enter an order on any application or appeal that requires a quasi-judicial hearing. 

Village staff  means an employee or agent of the village. 

(c)   Ex parte communications between village officials, applicants and public participants  . If any person not otherwise prohibited by statute, charter, or ordinance communicates with any village official in any manner other than publicly at a quasi-judicial hearing regarding the merits of any matter on which action may be taken by the council or a board on which the village official is a member, the communication shall not create a presumption of prejudice provided that the following disclosure is made: 

(1)   A village official shall disclose the name of the communicator, and the time, place and substance of the communication. The disclosure shall be made a part of the record before final action is taken on the matter.

(2)   A village official may read a written communication from any person; provided, however, a written communication that relates to a quasi-judicial action pending before the official shall be made a part of the record before final action is taken on the matter.

(3)   A village official may communicate with an expert witness, village staff member, or consultant, conduct an investigation, make site visits and receive expert opinions regarding quasi-judicial action pending before him or her, provided that the activities and the existence of the investigations, site visits, or expert opinions are disclosed and made a part of the record before final action is taken on the matter.

(4)   Disclosure, either written or oral, made pursuant to subsections (c)(1), (2), and (3) of this section must be made before or during the public meeting at which a vote is taken and must be made a part of the record. Persons who have opinions contrary to those expressed in the ex parte communication shall be given a reasonable opportunity to refute or respond to the communication.

(Ord. No. 02-03(03-01), § 1, 1-6-2003)

Sec. 2-107.  Quasi-judicial hearing procedures.

(a)   Purpose  . It is the purpose of this section to provide a fair, open and impartial procedure for the conduct of quasi-judicial hearings by the village council, planning and zoning board, and code enforcement board. Unless otherwise provided by law, quasi-judicial hearings shall be conducted substantially as provided in this section. 

(b)   Proceedings.   

(1)   Legal representation  . Applicants may be represented by legal counsel. The village council, the planning and zoning board, and the code enforcement board may be advised by the village attorney, special counsel or other designated counsel (collectively referred to as "village attorney"). 

(2)   Participants at hearings  . All persons who testify on any application must sign in and be sworn by the presiding officer, clerk or counsel. All persons testifying subject themselves to cross examination. Each person who addresses the village council, planning and zoning board, or code enforcement board, other than members of village staff, shall provide the following information: his, or her, name and address; state whether the person speaks on his, or her, own behalf, or on behalf of another person, association or entity (third party); if the person represents a third party, the person shall also identify the third party and whether the person is authorized to speak on its behalf and whether the view expressed by the speaker represents an established policy of the third party that has been approved by the principal or its governing body; and whether the person is, or will receive, compensation for appearing at the hearing, and whether the person or any immediate family member, or an entity in which he or she has a controlling interest, has a financial interest in the pending matter. 

(c)   Conduct of hearing  . All quasi-judicial hearings shall be recorded by mechanical means. 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. The court reporter shall identify himself or herself to the village 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 asked through the chair;

(2)   The applicant, witnesses, village staff and all participants asking to speak shall be sworn at the time the matter is brought on for hearing. Attorneys shall not be sworn unless an attorney intends to testify to facts or to offer an expert opinion;

(3)   The chair shall decide any parliamentary objections and objections to evidentiary matters with the advice of the village attorney;

(4)   The village staff shall present its report, which shall be 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)   Opponents shall have the right to cross examine individual speakers;

(8)   Opposition shall present their testimony and evidence;

(9)   The applicant shall have the right to cross examine individual speakers;

(10)   Members may ask questions of a speaker at any time through the chair;

(11)   Village staff shall be given time for rebuttal if requested. Village staff shall have the right to cross examine the applicant and others participants who present testimony and evidence and shall be subject to cross examination;

(12)   The applicant shall be provided time for rebuttal if requested; and

(13)   The chair shall close the public hearing. Members shall discuss the matter in public, make or accept proposed findings of fact and conclusions of law, and render a decision. No further presentations or testimony shall be permitted unless directed by the village attorney.

(d)   Record of the hearing  . Following the final disposition of the application or appeal, all evidence admitted at the hearing, the application or appeal file, staff reports, the approved order and ex parte disclosures shall be maintained in a separate file which shall constitute the record on the matter. The record will be made available to the public for inspection upon request at any time during normal business hours. 

(Ord. No. 02-03(03-01), § 1, 1-6-2003)

1 comment:

  1. Thank you Mayor Flinn for continuing to keep us up to date. You also are blessed to have such a great family. Take good care of them and our city.