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HomeMy WebLinkAboutDocumentation_Regular_Tab 10I_4/11/1996 JONES, FOSTER, JOHNSTON & Sr ell. ATTORNEYS AND COUNSELORS • FLAGLER CENTER TOWER V) 505 SOUTH FLAMER DRIVE ELEVENTH FLOOR LARRY ElALEXANDER MICHAEL T KRANZ WEST PALM BEACH,FLORIDA 33401 AL CARL ANOELOFF JOHN BLAIR McCRACKEN STEPHEN J AUCAMP SCOTT L MCMULLEN _ M TRACEY BIAGIOTTI DAVID PRATT P.O. BOX 3475 MAR I D IJJV ••^•-•• -- ISTON CLAY C BROOKER JOHN C RANDOLPH 996/M JOYCE A CONWAY STEVEN J ROTHMAN WEST PALM BEACH,FLORIDA 33402-34 7 5 R RUCE JONES MARGARET L COOPER PETER A.SACHS EDWARD DIAz D CULVER SMITH al (407)858.3000 V P Village Mana er's Office 904-tom REBECCA 0.DOANE SIDNEY A.sTu8BS FAX:(407)832-1454 L C.WOLFE CHRISTOPHER S.DUKE ALLEN R.TOMLINSON 933•t99t H MICHAEL EASLEY JOHNS TRIMPER SCOTT 0 HAWKINS MICHAEL P WALSH • RETIRED THORNTON M.HENRY BRIAN K.WAXMAN • WILLIAM A.FOSTER PETER s HOLTON H.ADAMB WEAVER MARK 8.KLEINFELO WRITER'S DIRECT UNE: OF COUNSEL L MARTIN FLANAGAN JACK A.PUSCO March 15, 1996 Mr. Thomas G. Bradford Village Manager • Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469-0273 • RE: Village of Tequesta Ex-parte Communications Our File No. 13153. 1 Dear Tom: Pursuant to a request that was made by a Council member at the last Village Council meeting, I believe we should reserve some time at either a workshop meeting or at a regular meeting to discuss the matter of ex-parte communications and the instances in which ex- parte communications should be revealed. As you• will recall, this matter was addressed at a previous Council meeting on July 27, 1995. I am enclosing a copy of a portion of those minutes which relate to this matter. Also, for the information and benefit of the Village Council I am forwarding a copy of Resolution No. 29-94/95. Perhaps you could provide this information to the members of the Village Council. I will be prepared to address at any time you desire the Resolution, its background and its significance to the members of the Village Council. Sincerely, • JONES, S ER, JOHNSTON & STUBBS, P.A. • J n C. Randolph JCR\ssm Enclosures Village Council Meeting Minutes July 27, 1995 Page 23 Village. (Staff Recommends Approval) Village Manager Bradford stated this resolution had been reviewed and recommended by the Public Safety Committee. The Village Manager explained that the mutual aid agreement had been modified and was now an automatic aid agreement which was important since property owners would benefit after ISO rated the area again. Village Attorney Randolph read Resolution No. 28 - 94/95 by title only. Councilmember Hansen made a motion to approve Resolution 28 - 94/95. Motion was seconded by Vice Mayor Burckart. The vote on the motion was: Ron T. Mackail - for William E. Burckart - for Elizabeth A. Schauer for Carl C. Hansen - for • The motion was therefore passed and adopted. E) Resolution No. 29 - 94/95 - Authorizing Ex-Parte Communications in Quasi-Judicial Matters Relating to the Village of Tequesta Council, its Commissions and Boards, Pursuant to House Bill 5, attached hereto; Providing for Disclosure Requirement; Providing an Effective Date. (Staff Recommends Approval) Mayor Mackail read Resolution No. 29 - 94/95 by title only. Village Attorney Randolph advised this resolution would allow conversations with members of the public Village Council Meeting Minutes July 27, 1995 Page 24 regarding site plans reviews, etc. , subject to disclosure prior to taking action on the quasi- judicial matter. It was suggested that exparte communication could be added to the agenda as a reminder that disclosure should be made. Attorney Randolph stated there could be problems if a Councilmember forgot to disclose. Vice Mayor Burckart made a motion to approve Resolution 29 - 94/95. Motion was seconded by Councilmember Schauer. The vote on the motion was: Ron T. Mackail - for William E. Burckart - for Elizabeth A. Schauer - for Carl C. Hansen - for The motion was therefore passed and adopted. F) Ordinance - First Reading - Amending the Code of Ordinances of the Village at Chapter 18, Section 18- 28, Relating to Solid Waste and Recycling Collection Service Charges; Providing Amendments to User Charges and Fees for Residential Curbside Solid Waste and Recycling Collection Services; Providing for Severability; Providing for Repeal of Ordinances in Conflict; Providing for Codification; Providing an Effective Date. (Staff Recommends Approval) Village Attorney Randolph read the Ordinance by title only on first reading. Village Manager Bradford explained that because of action taken earlier in the meeting to place refuse and recycling charges on tax bills instead of on water bills that steps must be taken to give the Village I RESOLUTION NO. 29 - 94/95 A RESOLUTION OF THE VILLAGE. COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AUTHORIZING EX-PARTE COMMUNICATIONS IN QUASI-JUDICIAL MATTERS RELATING TO THE VILLAGE OF TEQUESTA COUNCIL, ITS COMMISSIONS AND BOARDS, PURSUANT TO HOUSE BILL 5 ATTACHED HERETO; PROVIDING FOR DISCLOSURE REQUIREMENTS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Florida legislature, pursuant to House Bill 5, copy attached hereto, has authorized ex-parte communications in quasi-judicial matters pursuant to certain disclosure requirements contained herein; and WHEREAS, the Village Council of the Village of Tequesta wishes to adopt the disclosure requirements contained within House Bill 5 in order to take advantage of the ability of the Village Council, its commissions and boards, being allowed to engage in ex-parte communication. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, as follows: Section 1. The Village hereby adopts the provisions of House Bill 5, thereby allowing ex-parte communications in regard to quasi-judicial matters and so as to provide that said communications shall not be presumed prejudicial. Section 2 . The Village hereby adopts the following disclosure requirements: A. In the event of any ex-parte communication with a local public official which relates to quasi-judicial action pending before the official, it shall be the responsibility of r such public official to disclose the subject of the communication and the identity of the person, group or entity with whom the communication took place and said information shall be made a part of the record before final action on the matter. B. A local public official may read a written communication from any person, however, any written communication that relates to a quasi- judicial action pending before a local public official shall be made part of the record before final action on the matter. C. Local public officials may conduct investigations and site visits and may receive expert opinions regarding quasi-judicial action pending before them, however, the existence of the investigation, site visit, or expert opinion shall be made a part of the record before final action on the matter. D. Disclosure made pursuant to paragraphs A, B and C 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 2 opportunity to refute or respond to the communication. Section 3 . This Resolution shall become effective immediately upon passage. THE FOREGOING RESOLUTION was offered by Councilmember William E . Burckart , who moved its adoption. The Resolution was seconded by Councilmember Elizabeth A. Schauer and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION Carl Hansen Ron T . Mackail William E . Burckart Elizabeth A. Schauer The Mayor thereupon declared the Resolution duly passed and adopted this 27th day of July , 1995. MAYOR OF TEQUESTA ,4, J. ' Ron T. Mackail ATTEST: Vi lage Clerk JCR\13153-01\RESOLUTI.EXP 3 JONES, FOSTER, JOHNSTON & STUBBS, P. A. ATTORNEYS AND COUNSELORS Villa¢ FLAGLER CENTER TOWER be Of Tequesta 505 SOUTH FLAGLER DRIVE ELEVENTH FLOOR JAN CARRY B.ALEXANDER MICHAEL T KRANZ WEST PALM BEACH.FLORIDA 33401 • JA N 2 9 19 E R'FBI;LIE THAL CARL ANGELOFF JOHN GLAIR McCRACKEN J STEPHEN J.AUCAMP SCOTT L.MCMULLEN HARK ALLISON .HN9TON TRACEY BIAGIOTTI DAVID PRATT P.O. BOX 3475 1895-1.., CLAYC BROOKER JOHN C RANDOLPH Village n a JOYCE A.CONWAY STEVEN J.ROTHMAN WEST PALM BEACH,FLORIDA 33402-3475 a Ma I CE J.HER MARGARET L COOPER PETER A.SACHS p u_, .EDWARD DIAZ D.CULVER SMITH M (407)859-3000 - ber S (� REBECCA G.DOANE SIDNEY A.STUBBS FAX:(407)832-1454 • FE CHRISTOPHER S.DUKE ALLEN R.TOMLINSON I933.19 1 SCOTT G.HAWKINS JOHN S.TRIMPER THORNTON M.HENRY MICHAEL P WALSH RETIRED PETER S.HOLTON BRIAN K.WAXMAN WILLIAM A.FOSTER MARK B.KLEINFELD M.ADAMS WEAVER WRITER'S DIRECT UNE: OF COUNSEL L.MARTIN FLANAGAN January .25, 1996 • Mr. Thomas G. Bradford Village Manager Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469-0273 RE: Village of Tequesta Quasi-judicial Hearings • Our File No. 13153 . 1 Dear Tom: This is in response to your letter of January 18, 1996, regarding the above referenced subject. I enclose herewith a copy of the Resolution adopted by the Village relating to procedures involving ex-parte communications. First, in regard to quasi-judicial hearings, there are certain procedures which should be followed. Quasi-judicial hearings include hearings pertaining to variances, special exceptions, site plan reviews and any other hearings wherein the Village Council or any board or commission of the Village is sitting to determine • whether or not certain. criteria set forth within the Village's ordinances have been met. In essence, the Village Council or the Village board is sitting as a judge to determine whether those . criteria have been met and is thereby acting in a quasi-judicial capacity. When acting in a quasi-judicial capacity, the Council and/or the board should be acting only upon evidence which is presented at a duly noticed public hearing. It should not base its opinion on anything other than the evidence heard at that hearing. That is why ex-parte communications have .been discouraged by the courts as it was felt that such communications might unduly influence a quasi-judicial body. t Mr. Thomas G. Bradford January 25, 1996 Page 2 At a quasi-judicial hearing, although it is not necessary for witnesses to be sworn, I have found that it is a good idea as it establishes the nature of the hearing at the outset. Therefore, I would recommend that witnesses who will testify in regard to matters coming before the Council or before a board sitting in a quasi-judicial capacity be sworn in. In addition, at a quasi- judicial hearing persons have an opportunity to cross examine witnesses and it should be announced that that opportunity exists. Also, a record should be kept of the proceedings, as is already done. Any motion made at a quasi-judicial hearing should contain findings of fact so that a person reviewing the action taken can make a determination as to whether or not the ruling ultimately made is based upon competent substantial evidence. Indeed, in the event an action of the quasi-judicial body is appealed, the court will review the action to determine whether or not it can be supported by competent substantial evidence. The court will not substitute its opinion for the opinion of the quasi-judicial body, but it will overrule the quasi-judicial body if it is found that its opinion is not supported by competent substantial evidence. You should know that opinions of neighbors or residents do not normally qualify, under the law, as competent substantial evidence. Usually expert testimony is necessary in this regard. Expert testimony may include a zoning administrator, a planner, a landscape architect, a noise expert or any other number of persons who might be qualified to comment in regard to whether or not criteria have been met. As to ex-parte communications, please note that in the event there have been ex-parte communications, it shall be the responsibility of the public official who had the ex-parte communication to disclose the subject of the communication and the identity of the person, group or entity with whom the communication took place. Said information shall be made a part of the record before final action of the matter. These disclosures should be made before a vote is taken on any matter 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. It is my recommendation, in regard to ex-parte communications, that each person voting on the matter announce at the hearing whether or not they have had any ex-parte communications and if they had, they should disclose the subject of the communication and the identity of the person, group or entity with whom the communication took place. That person should also make a statement as to whether or not the ex-parte communication would in any way influence their decision and whether they would be guided in their decision solely by the evidence obtained at the public hearing. Obviously, a J O N E S , FOSTER , JOHNSTON & S T U B B S , P.A . Mr. Thomas G. Bradford January 25, 1996 Page 3 person acting in a quasi-judicial capacity should not allow his or her decision to be influenced by ex-parte communications, but should make their determination based upon the information received at the quasi-judicial hearing. Finally, in regard to your question regarding whether there are any special notice requirements relating to quasi-judicial hearings, I call your attention only to that language, which I believe you already use, set forth in Florida Statute 286.0105 which indicates that: "If a person decides to appeal any decision made by the board, agency or commission with respect to any matter considered at such meeting or hearing, he will need a record of the proceedings, and that for such purpose, he may need to insure that a verbatim record of the proceeding is made, which record includes the testimony and evidence upon which the appeal is to be based. " Please advise if you are in need of any other information in regard to this matter. Sincerely, JONES, OSTER, JOHNSTON & STUBBS, P.A. ohn C. Randolph JCR\ssm Enclosure • JONES , FOSTER , JOHNSTON & STUBBS , P . A . JONES, FOSTER, JOHNSTON & STUBBS, P. A. ATTORNEYS AND COUNSELORS FLAGLER CENTER TOWER 505 SOUTH FLAGLER DRIVE LARRY B ALEXANDER RI CHAEL T KRANZ ELEVENTH FLOOR CARL ANGELOFF JOHN BLAIR McCRACKEN WEST PALM BEACH,FLORIDA 33401 HENRY F LILIENTHAL STEPHEN J AUCAMP SCOTT L.MCMULLEN TRACEY BIAGIOTT1 DAVID PRATT P.O. BOX 3475 1904-19� CLAY C.BROOKER JOHN C.RANDOLPH HARRY ALLISON JOHNSTON JOYCE A CONWAY STEVEN J.ROTHMAN WEST PALM BEACH,FLORIDA 33402-3475 1895.UC 19°7 MARGARET L COOPER PETER A.SACHS ECwARD DIAZ D.CULVER SMITH III (407)858-3000 R BRE JONES REBECCA G.DOANE SIDNEY A.STUBBS '901.1988 CHRISTOPHER S.DUKE ALLEN R. TOMLINSON FAX:(407)832.1454 PAUL C.WOLFE SCOFF G.HAWKINS JOHN S. TAIMPER 1977799/ THORNTON M.HENRY MICHAEL P.WALSH PETER S.HOLTON H.ADAMS WEAVER RE TIaF MARK B KLEINFELD WILLIAM A FOSTER WRITER'S DIRECT LINE: • OF COUNSEL L MARTIN FLANAGAN June 13, 1995 • Mr. Thomas G. Bradford Village Manager Village of Tequesta Post Office Box 3273 Tequesta, Florida 33469 RE: Village of Tequesta Ex-parte Communications/Quasi-Judicial Bodies Our File No. 13153 . 1 Dear Tom: Enclosed for consideration by the Village Council is a proposed Resolution adopting House Bill 5 allowing ex-parte communications in regard to quasi-judicial matters. Please call me if you have any questions. Sincerely, JONES, STER, JOHNSTON & STUBBS, P.A. ohn . Randolph JCR/ssm Enclosure RESOLUTION NO. A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AUTHORIZING EX-PARTE COMMUNICATIONS IN QUASI-JUDICIAL MATTERS RELATING TO THE VILLAGE OF TEQUESTA COUNCIL, ITS COMMISSIONS AND BOARDS, PURSUANT TO HOUSE BILL 5 ATTACHED HERETO; PROVIDING FOR DISCLOSURE REQUIREMENTS; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Florida legislature, pursuant to House Bill 5, copy attached hereto, has authorized ex-parte communications in quasi-judicial matters pursuant to certain disclosure requirements contained herein; and WHEREAS, the Village Council of the Village of Tequesta wishes to adopt the disclosure requirements contained within House Bill 5 in order to take advantage of the ability of the Village Council, its commissions and boards, being allowed to engage in ex-parte communication. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, as follows: Section 1 . The Village hereby adopts the provisions of House Bill 5, thereby allowing ex-parte communications in regard to quasi-judicial matters and so as to provide that said communications shall not be presumed prejudicial. Section 2 . The Village hereby adopts the following disclosure requirements: A. In the event of any ex-parte communication with a local public official which relates to quasi-judicial action pending before the official, it shall be the responsibility of such public official to disclose the subject of the communication and the identity of the person, group or entity with whom the communication took place and said information shall be made a part of the record before final action on the matter. B. A local public official may read a written communication from any person, however, any written communication that relates to a quasi- judicial action pending before a local public official shall be made part of the record before final action on the matter. C. Local public officials may conduct investigations and site visits and may receive expert opinions regarding quasi-judicial action pending before them, 'however, the existence of the investigation, site visit, or expert opinion shall be made a part of the record before final action on the matter. D. Disclosure made pursuant to paragraphs A, B and C 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 2 opportunity to refute or respond to the communication. Section 3 . This Resolution shall become effective immediately upon passage. THE FOREGOING RESOLUTION was offered by Councilmember who moved its adoption. The Resolution was seconded by Councilmember and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION The Mayor thereupon declared the Resolution duly passed and adopted this day of , 1995. MAYOR OF TEQUESTA Ron T. Mackail ATTEST: Village Clerk JCR\13153-01\RESOLUTI.EXP 3 Memorandum To: Village Council From: Thomas G. Bradford, Village Manage ? Date: 04/05/1996 Subject: Quasi-judicial Hearings, Agenda Format Appearing below, please find a sample of the way we would propose for your agenda item to appear whenever you have a quasi-judicial hearing. The example provided is using the Sterling House appeal of the CAB decision on the question of roof materials that was decided at your meeting on March 7, 1996. • SAMPLE - SAMPLE - SAMPLE - SAMPLE - SAMPLE - SAMPLE - SAMPLE - SAMPLE - VII. DEVELOPMENT MATTERS A) An Appeal for Relief to the Village Council by Virtue of a Decision Made by the Community Appearance Board at their Meeting on February 28, 1996, per Section 7-4 (c) of the Village Code of Ordinances. Sterling House, SDR Development. Joeph Capra, P.E. , Creech Engineering. ( A QUASI-JUDICIAL HEARING ) 1) Swearing-In of Witnesses , if Required. 2) Testimony of Witnesses and Cross Examination, if any. 3) Disclosure of Ex-Parte Communications 4) Finding of Fact Based upon Competent Substantial Evidence: a) Motion to Affirm the Actions of the CAB b) Motion to Affirm the Actions of the CAB, with Modifications • c) Motion to Reverse the Actions of the CAB