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Planning and Zoning Board
STAFF MEMO
Meeting: Planning and Zoning Board -Dec 17 2020
Staff Contact: Mitty Barnard Department: Community Development
2020 Legal Update (Refresher)
Refreshers for the Planning & Zoning Board
ATTACHMENTS:
Planning & Zoning :•, • Legal Update 2020
DAVIS &
ASHTON, POA.
Amity R. Barnard, Esq.
Associate Attorney
LEED Green Associate
Email: mitty@davisashtonlaw.com
MEMORANDUM
TO: Planning and Zoning Board
FROM: Assistant Village Attorney Barnard
CC: Nilsa Zacarias, Community Development Director
DATE: December 17, 2020
RE: 2020 Legal Update (Refresher)
As a refresher, I am providing you with the following information which is directly applicable to
your service on the Village's Planning and Zoning Board ("P&Z Board"), including:
1. Composition and appointment of the P&Z Board;
2. Duties of the P&Z Board;
3. Decision -making processes of the P&Z Board;
4. Other laws and rules governing the P&Z Board; and
5. Additional information.
1. WHAT IS THE P&Z BOARD?
• The P&Z Board is a voluntary board comprised of five (5) regular members and up to
three (3) alternate members (Code § 22-51).
• Board members are appointed by the Village Council in May of each year (Code § 2-10).
• Regular Board members serve for 3-year terms and Alternate members serve for 2-year
terms at the pleasure of the Village Council and maybe removed at any time by the Village
Council (Code § 22-5 1 (c)(e)).
• The P&Z Board selects its own chairperson and vice -chairperson annually at the first
meeting of the Board after the May meeting of the Village Council (Code § 22-52).
2. WHAT DOES THE P&Z BOARD DO?
• Reviews the Village's Comprehensive Plan ("Comp Plan"), zoning code and land
development regulations on a continual basis and advises the Village Council of potential
updates to serve the present and future needs of the Village (Code § 62-33).
• Sits as the Village's Local Planning Agency ("LPA") under Florida law responsible for
review of the Village's Comp Plan and amendments (Code § 62-31 through 62-33; § 22-
53(e)).
701 Northpoint Parkway, Suite 205, West Palm Beach, FL 33407 1 p 561-586-7116 1 f 561-586-9611
www.davisashtonlaw.com
♦ LEADING ATTORNEYS IN LOCAL GOVERNMENT LAW AND ETHICS
December 17, 2020
2020 Legal Update (Refresher)
• Reviews the Village's Comp Plan and recommends changes and/or additions to the Village
Council (Code § 62-33).
• Review and make recommendations to the Village Council on applications for:
■ Site Plan Review ("SPR") or Site Plan Modification ("SPM") including aesthetic
review, except for those where P&Z Board has final authority (below);
■ Signage requested in conjunction with SPR or SPM;
■ SPMs affecting items previously granted variances; and
■ Any other review related to planning and zoning specifically requested by Village
Council (see Code § 22-53(a)).
• Review and make final determinations on applications for:
■ SPMs that do not exceed $50,000 and do not modify footprint, lot coverage, density,
height, number of stories or building square footage;
■ Aesthetic modifications to exterior building color and finish (with no other SPM);
■ Revisions to previously approved landscape plans (with no other SPM); and
■ Certain entry features on property in the R-1 and R-lA Zoning Districts. (Code §
22-52(b)).
• Hear and decide appeals where it is alleged there is an error in any order, requirement,
decision or determination by an administrative official in the enforcement of Chapter 78
Zoning, or of any ordinance adopted thereto related to single-family properties and
structures in the R-1 and R-lA Zoning Districts (Code § 22-53(c)).
• Hear and authorize variances from the terms of Chapter 78 Zoning related to single-family
properties and structures in the R-1 and R-lA Zoning Districts (Code § 22-53(d)).
• Adopt such rules and procedures as are necessary to perform its duties (Code § 22-53(f)).
3. HOW DOES THE P&Z BOARD MAKE DECISIONS?
• Sunshine Law: all decisions must be made in accordance with §286.011, Fla. Stat.
o Any meeting of two (2) or more P&Z Board members, who discuss any item on which
foreseeable action will be taken by the Board, must be conducted "in the Sunshine".
■ "In the Sunshine" means at a publicly -noticed meeting which is open to the
public and recorded via minutes.
o Board members shall not discuss any matter on which foreseeable action will be
taken by the P&Z Board, except at a meeting "in the Sunshine".
■ Knowing and intentional violation of Sunshine Law carries criminal penalties.
o Sunshine Law does not apply to Board members' individual conversations with the
Village Manager or Village Attorney.
■ One-on-one private discussions with the Village Manager or Village Attorney
are permissible at any time.
o One-way communication from one (1) Board member to all others (e.g., one-way
email, etc.) does not violate the Sunshine Law, but if the one-way communication
becomes a conversation or discussion (e.g., someone replies to your one-way email),
then the Sunshine Law is violated.
• Quasi -Judicial Proceedings: most meetings of the Board are quasi-judicial in nature.
o P&Z Board review of applications for site plan review, architectural and aesthetic
review, variances, and special exception uses are quasi-judicial proceedings.
o Quasi means like; these meetings are judicial- or court -like proceedings and
inherently more formal than other public meetings.
o All quasi-judicial proceedings involve the application of codified criteria to an
application or request.
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■ Variances are requests to develop land contrary to codified Code criteria. The
applicant must prove (among other criteria) that application of the Code creates
a hardship that does not allow reasonable use of the land.
■ Special Exceptions are requests to use land in a manner that has been determined
to be permissible so long as certain protections are in place.
o In a quasi-judicial proceeding, the P&Z Board must take action (vote) on an
application and make a decision based on evidence provided at the hearing.
■ The applicant has the responsibility of demonstrating ("burden of proof ') by
competent substantial evidence that the applicable standards have been met. For
non -rezoning applications, the responsibility then shifts to those seeking to deny
the application to prove by competent substantial evidence that the standards
have not been met and that the request is adverse to the public interest.
■ The decision the P&Z Board reaches must be supported by competent and
substantial evidence.
✓ Be sure motions contain sufficient detail to substantiate the action (e.g.
specify exactly which criteria have not been met in denying an
application).
■ Proceeding is not an opportunity for the P&Z Board to make a decision based
on "what the Village wants". It is an opportunity for the Board to consider the
application and determine whether the applicant has satisfied the criteria of the
Village Code, i.e., "did the Applicant do what he/she is required to do?"
■ More information regarding the evidence and criteria considered at quasi-
judicial proceedings may be provided by the Village Attorney or Staff in advance
of specific applications.
o At quasi-judicial hearings, P&Z Board members should disclose any ex parte
communications related to the application. Ex parte communications include: all
forms of communications, investigations, site visits, and expert opinions.
■ If you fail to disclose ex parte communication, the communication is considered
prejudicial.
■ Rule of thumb: if you question the need to disclose, it is best to do so!
■ Remember: site visits must be disclosed!
o Conditions of approval may be imposed on decisions made at quasi-judicial hearings.
■ All conditions of approval must be reasonably related and proportional to the
request being made.
■ Violation of this concept can, under recent case law, expose the Village to
takings claims.
• The P&Z Board makes many decisions based on codified processes and criteria.
o The site plan review procedure is found at Code Chapter 78, Article IX, Division 2.
■ Specific land development regulations are found in the Village's
Comprehensive Zoning Ordinance ("Village Zoning Ordinance"), located in
Chapter 78 of the Village Code.
■ Other projects that the P&Z Board may review are regulated by the following
chapters of the Village's Code of Ordinances: 14, 221 461 621 76, and 78.
o The architectural and aesthetic review criteria are found at Code § 22-82.
o The variance procedure and review criteria are found at Code § 78-61, et. seq. and §
78-65(2), Village Zoning Ordinance. The six (6) variance criteria are:
■ a. Special conditions and circumstances exist which are peculiar to the land,
structure, or building involved and which are not applicable to other lands,
structures or buildings in the same zoning district.
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■ b. The special conditions and circumstances do not result from the actions of
the applicant.
■ c. Granting the variance requested will not confer on the applicant any special
privilege that is denied by this chapter to other lands, buildings or structures in
the same zoning district.
■ d. Literal interpretation of the provisions of this chapter would deprive the
applicant of rights commonly enjoyed by other properties in the same zoning
district under the terms of this chapter and would work unnecessary and undue
hardship on the applicant.
■ e. The variance granted is the minimum variance that will make possible the
reasonable use of the land, building or structure.
■ f. The grant of the variance will be in harmony with the general intent and
purpose of this chapter and such variance will not be injurious to the area
involved or otherwise detrimental to the public welfare.
o The special exception procedure and criteria are found at Code § 78-361 et. seq. and
§ 78-363, Village Zoning Ordinance. The six (6) special exception criteria are:
■ (1) The proposed use is a permitted special exception use.
■ (2) The use is so designed, located and proposed to be operated so that the public
health, safety, welfare and morals will be protected.
■ (3) The use will not cause substantial injury to the value of other property in the
neighborhood where it is to be located.
■ (4) The use will be compatible with adjoining development and the proposed
character of the district where it is to be located.
■ (5) Adequate landscaping and screening is provided as required in this chapter.
■ (6) Adequate off-street parking and loading is provided and ingress and egress
is so designed as to cause minimum interference with traffic on abutting streets.
✓ Please review and familiarize Yourself with these portions of the Village Code and
Zoning Ordinance.
4. OTHER LAWS IMPACTING THE P&Z BOARD?
• Florida's Public Records Act (see Chapter 119, Fla. Stat.)
o Any document, regardless of the medium created, made, or received in connection
with P&Z Board business is a public record.
■ This includes e-mails, text messages, and social media posts.
o If a public record is created using your personal e-mail (e.g., you send an email to the
Village Clerk via your personal Gmail account), then you have created a public
record. The Village's policy regarding public records is that you are responsible for
maintaining these documents pursuant to Florida's records retention guidelines (see
§ 119.021, Fla. Stat.).
o Avoid text messages and avoid using social media for Village -related matters.
o Knowing violations of this law carry criminal penalties.
• Palm Beach County Code of Ethics
o All P&Z Board members must read the Palm Beach County Code of Ethics, receive
training on the requirements of the Code of Ethics, and sign an acknowledgment form
within sixty (60) days of installation and once every two (2) years.
o For more information visit: htlp://www.palmbeachcountyethics.com/training.htm.
• Gifts avoid them!
o Any gift from a vendor or lobbyist with annual aggregate value that exceeds $100.00
is prohibited (See §2444 Palm Beach County Code of Ethics; § 112.3148, Fla. Stat.).
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o Gifts valued at $100.00 or more must be reported to the state (with a copy to the
county) quarterly. Gifts from relatives are exempt from this reporting requirement
(See §2-444 Palm Beach County Code of Ethics; § 112.3148, Fla. Stat.).
o Please see the Village Attorney and Village Clerk to report a gift.
• Voting Conflicts —what to do?
o Any item before the P&Z Board in which the Board's action that will result in a
special personal benefit or loss or a special financial benefit or loss to family member,
spouse, principal or business associate causes you to have a voting conflict.
■ Special is a benefit or loss that exceeds what the generally affected population
would enjoy or suffer.
o Any P&Z Board member with a voting conflict must abstain from participation and
voting. The Board member must disclose the nature of the conflict and must complete
a voting conflict form that will be appended to the meeting minutes.
o Please see the Village Attorney and Village Clerk to report or discuss a voting
conflict.
5. ADDITIONAL INFORMATION.
• Specific information will be provided to you as certain matters appear before the P&Z
Board.
• If you have an questions about anything in this memorandum or otherwise, please do not
hesitate to ask!
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