EAC Agenda 12/06/2000 ENVIRONMENTAL ADVISORY COUNCIL
AGENDA
December 6, 2000
9:00 a.m.
Commission Boardroom
W. Harmon Turner Building (Building"F")—Third Floor
I. Roll Call
H. Approval of Agenda
III. Approval of October 6, 2000 Meeting Minutes
IV. Growth Management Update
V. Land Use Petitions
A. Planned Unit Development PUD-00-16
"Collier Blvd. Mixed-Use Commerce Center PUD"
Section 34, Township 49 South,Range 26 East
B. Planned Unit Development PUD-99-28
"Cocohatchee Bay PUD"
Sections 8,16,17 and 20 Township 48 South, Range 25 East
C. Planned Unit Development PUD-00-17
"Collier Blvd. Commercial Center PUD"
Section 3, Township 50 South,Range 26 East
D. Planned Unit Development PUD-2000-14
"Brittany Bay PUD"
Section 27, Township 48 South,Range 26 East
E. Conditional Use Petition CU-00-14
"Townsend Lake Excavation"
Section 18, Township 51 South,Range 27 East
F. Commercial Excavation 59.755
"Longan Lakes 2, Commercial Excavation
Section 25,Township 47 South,Range 27 East
Environmental Advisory Council Agenda
December 6, 2000
Page 2
VI. Old Business
Discussion regarding Wetland Workshop
Public input regarding workshop
.
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VIII. Subcommittee Report
A. Growth Management Subcommittee
IX. Council Member Comments
X. Public Comments
XI. Adjournment
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Council Members:Notify the Community Development and Environmental Services Division Administrative
staff no later than 5:00 p.m. on December 1, 2000 if you cannot attend this meeting or if you have a conflict
and will abstain from voting on a particular petition(403-2370).
General Public: Any person who decides to appeal a decision of this Board will need a record of the
proceedings pertaining thereto; and therefore may need to ensure that a verbatim record of proceedings is
made,which record includes the testimony and evidence upon which the appeal is to be based.
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Memorandum
To:
Rural Fringe Area Assessment Committee
Rural Lands Area Assessment Committee
Environmental Advisory Council
From: William D. Lorenz,Jr.,P.E.,Natural Resources Director
Bob Mulhere, AICP,Planning Services Director
Date: November 7,2000
Subject: Proposed Minimum County-wide Policies for Wetlands,Vegetative Communities and
Wildlife Protection
P'"` The purpose of this memo is to transmit the subject Objective and Policies for your review and comment.
Staff has developed this proposal in response to the Governor and Cabinet's Final Order. We have also
worked with our outside attorney, Nancy Lannan, to ensure we have a proposal that will meet the
requirements of the Department of Community Affairs(DCA). Her analysis is also attached.
Staff proposes that these Objectives and Policies are the minimum requirements to address wetlands,
vegetative communities and wildlife protection within Collier County. The Rural Fringe and Rural Lands
Committees may add additional protection mechanisms within their areas as they complete their
respective tasks.
Staff requests that each committee set aside some time to receive public input on this proposal and
provide staff with a committee recommendation by January 15, 2001. The County must address these
minimum requests as part of any phasing of Growth Management Plan amendments that we transmit to
DCA.
Please give either of us a call if you have any questions(Bill Lorenz,732-2505; Bob Mulhere,403-2400).
/gmm
Enclosure
C: Nancy Linnan,Attorney at Law, Carlton Fields
Marjorie Student,Assistant County Attorney
John Dunnuck Acting Administrator, Community Development&Environmental Services
Natural Resources Department
Community Development & Environmental Services Division
� t
Growth Management Plan
Objectives and Policies
Addressing
Countywide Minimum Standards for
Wetlands, Habitats
and Wildlife Protection
_ Advisory Committee Public Input Draft
November 8, 2000
Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
I. Wetlands Protection
OBJECTIVE I.1:
The County shall protect and conserve wetlands and the natural functions of wetlands.
Policy I.1.1
Wetlands and the natural functions of wetlands shall be protected and conserved through 1
a comprehensive process that includes consideration of the types, values, functions, sizes,
conditions and locations of wetlands. Higher intensity land uses have greater adverse
impacts on wetlands and wetland functions than do lower intensity land uses and thus are
more incompatible with wetlands. Incompatible land uses are directed away from
wetlands by the following mechanisms:
(1) Conservation Designation(Future Land Use Element)
The overall purpose of the Conservation Designation is to conserve and maintain the
natural resources of Collier County and their associated environmental, and
recreational and economic benefits. The allowed land uses specified in the FLUE's
Conservation Designation will accommodate limited residential development and
future non-residential development. These limitations help direct many higher
intensity land uses from wetlands contained in this Future Land Use Designation.
(Reference FLUE)
(2) Big Cypress Area of Critical State Concern Overlay(ACSC)
The land development regulations contained in the ACSC Overlay District on the
Future Land Use Map provide standards that facilitate the goal of directing higher
intensity land uses away from wetland systems. (Reference FLUE.)
(3) Natural Resource Protection Areas (NRPAs)
Major wetland systems and regional flow-ways were used as criteria to map Natural
Resource Protection Areas (NRPAs) as shown on the Future Land Use Map. These
areas identify the highest functioning wetland systems in the County. Within these
areas, only agriculture and directly related uses and one single family dwelling unit
per parcel or lot created prior to June 22, 1999 shall be allowed. These limitations
have been adopted as interim development standards pursuant to Administration
Commission Final Order AC-99-002 dated June 22, 1999. These limitations also
direct higher intensity land uses away from these wetland systems. (Reference the
FLUE for the specific land use restrictions.)
(4) Vegetation preservation requirements specified in Policy 11.1.1
(5) All other policies supporting Objective I.1 and Objective I.2.
Policy I.1.2
Wetlands shall be defined pursuant to Section 373.019 Florida Statutes. The location of
jurisdictional wetland boundaries are further described by the delineation methodology in
Section 373.421 Florida Statutes, as the statutes exist on July 1,2000.
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R A-F-T(11-8-00)
Policy I.1.3
As required by 9J5-5.006(1)(b), wetlands identified by the 1994-95 SFWMD land use
and cover inventory are mapped on the Future Land Use Map series. These areas shall be
verified by a jurisdictional field delineation, subject to Policy I.1.2, at the time of project
permitting to determine the exact location of wetland boundaries.
Policy I.1.4
Past development has altered Collier County wetlands causing wetland systems to lose
some degree of functionality. The County, therefore, has used type of wetland and
degree of functionality to classify County wetlands. Functional descriptions rely upon
measurements that indicate hydrologic impacts. Wetlands are classified as Class I, Class
II, or Class III. Class I wetlands are judged to have the highest value and thus receive the
highest degree of protection. Collier County wetlands are thus classified as follows:
Functional Descriptions
Greater
Absence of a than 10%
Greater than Hydrologic Upland
Wetland Type Wetland Classification 75%Melaleuca Connection Vegetation
Any natural surface Class I unless any one of the
water body and functional descriptions are
adjacent wetland present and then Class II Class II Class II Class II
Class I unless any one of the
functional descriptions are
Flow way wetlands present and then Class II Class II Class II Class II
Class III unless anyone of the
Wetlands connected functional descriptions are
to Flow way wetlands present then Class III Class III N.A. Class III
Class I unless anyone of the
functional descriptions are
Isolated wetlands 5 present and then the
acres or more in size Classification is as noted Class III N.A. Class II
Isolated wetlands
greater than 0.5 acres Class II unless any one of the
but less than 5 acres functional descriptions are
in size present and then Class III Class III N.A. Class III
Isolated wetlands less
than or equal to 0.5
acres in size Class III Class III N.A. Class III
1. Flow-way wetlands typically include slough wetlands as well as other wetland types when those
wetlands serve to provide both storage and conveyance of seasonal water flows.
2. The 10%Upland Vegetation criterion shall mean upland vegetation as defined by the State's wetland
delineation methodology present within the wetland jurisdictional boundary. This is not intended to
include areas of uplands within the delineation boundary.
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
n Policy I.1.5
Collier County shall direct land uses away from wetlands by limiting direct impacts
within wetlands and by specifying buffering requirements of preserved wetlands to
separate them from higher intensity land uses.
(1) Collier County shall not permit development in wetlands or wetland buffers except as
follows. A direct impact is hereby defined as a dredging or filling of a wetland.
(a) Class I Wetlands - A de minimus impact, hereby defined as no more than 5% of
direct impact to Class I wetlands, is allowed under the following conditions:
1. Where the applicant demonstrates that the direct impact is necessary for the
minimal reasonable use of the property;
2. Where the applicant demonstrates that the direct impact is necessary for
access and no reasonable upland alternative exists;
3. Where an overriding public benefit is determined, this 5% direct impact may
be increased. An overriding public benefit is defined as those actions required
by local, state, or federal government necessary for the promotion of public
safety, health, or general welfare such as stormwater management activities,
or the provision of water and waste water facilities.
4. For single family lots, a direct impact of greater than 5% is allowed to provide
for no more than one boat dock, subject to the standards found in Policy I.2.1
and Policy I.2.2.
5. Direct impacts allowed pursuant to this policy shall be mitigated according to
the requirements of Policy I.1.6.
6. Approval for any direct impact to Class I wetlands shall require a variance
granted by the County Commission in a public hearing process.
(b) Class II Wetlands - Up to 25% of a Class H wetland is allowed to be directly
impacted if the applicant demonstrates that all reasonable effort was made to
avoid impacts and then to minimize impacts that are unavoidable. The following
criteria shall be used to make this determination:
1. Where the applicant demonstrates that the direct impact is necessary for the
minimal reasonable use of the property;
2. Where the applicant demonstrates that the direct impact is necessary for
access and no reasonable upland alternative exists;
3. Where an overriding public benefit is determined, this direct impact may be
increased. An overriding public benefit is defined as those actions required by
local, state, or federal government necessary for the promotion of public
safety, health, or general welfare such as stormwater management activities,
or the provision of water and waste water facilities.
4. Direct impacts allowed pursuant to this policy shall be mitigated according to
the requirements of Policy I.1.6
5. Approval for any direct impact to Class II wetlands shall require a variance
granted by the County Commission in a public hearing process.
(c) Class III Wetlands - Up to 50% of a Class III wetland is allowed to be directly
impacted if the applicant demonstrates that all reasonable effort was made to
avoid impacts and then to minimize impacts that are unavoidable. The following
r-� criteria shall be used to make this determination:
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
1. Where the applicant demonstrates that the direct impact is necessary for the
minimal reasonable use of the property;
2. Where the applicant demonstrates that the direct impact is necessary for
access and no reasonable upland alternative exists;
3. Where an overriding public benefit is determined, this impact may be
increased. An overriding public benefit is defined as those actions required by
local, state, or federal government necessary for the promotion of public
safety, health, or general welfare such as stormwater management activities,
or the provision of water and waste water facilities.
4. Up to 100% of Class III wetlands may be impacted if the property owner
preserves selected upland vegetative communities in an amount that is greater
than that specified as the required buffer in Policy I.1.5(2) and specified as
native vegetative communities in Policy 11.1.1. Upland vegetative
communities must be preserved on a 1:1 basis for each acre of Class III
wetlands impacted. The resulting upland preserves shall be placed in a
conservation easement subject to the requirements of Policy I.1.5(3). For the
purpose of this provision, selected native upland plant communities shall
mean those uplands having less than 50%exotic plant species.
5. Direct impacts of Class III wetlands allowed pursuant to this policy shall be
mitigated according to the requirements of Policy I.1.6, except for the selected
upland vegetation communities preserved pursuant to Policy I.5(1)(c)4 where
these areas shall serve as appropriate mitigation credits.
6. Approval for impacts of greater than 50%to Class III wetlands shall require a
variance granted by the County Commission in a public hearing process. This
requirement shall be waived if the applicant preserves native upland
vegetative communities subject to the provisions of I.5(1)(c)4.
(2) The County shall require a minimum 50 foot buffer between the unimpacted wetland
boundaries and new development. A structural buffer shall be required adjacent to
wetlands where direct impacts are allowed. Wetland buffers shall conform to the
following standards:
(a) The buffer shall be measured landward from the approved jurisdictional line.
(b) The buffer zone shall consist of preserved native vegetation. Where native
vegetation does not exist, native vegetation compatible with the existing soils and
expected hydrologic conditions shall be planted.
(c) The buffer shall be maintained free of Category I invasive exotic plants, as
defined by the Florida Exotic Pest Plant Council.
(d) The following land uses are considered to be compatible with wetland functions
and are allowed within the buffer:
1. Passive recreational areas,boardwalks and recreational shelters;
2. Nature trails, excluding asphalt paved surfaces;
3. Water management structures;
4. Mitigation areas;
5. Any other conservation and related open space activity or use which is
comparable in nature with the foregoing uses.
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 7.3 of the CCME.
•
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
(3) Wetland preservation, buffer areas, and mitigation areas shall be dedicated as
conservation and common areas in the deed restrictions/conservation easements and
shall be platted. The conservation easement shall provide for maintaining these areas
free from trash and debris and of Category I invasive exotic plants, as defined by the
Florida Exotic Pest Plant Council. Land uses allowed in the conservation easements
shall be limited to those listed in Policy I.1.5(2)(d) and shall not include any other
activities that are detrimental to drainage, flood control, water conservation, erosion
control or fish and wildlife habitat conservation and preservation.
Policy I.1.6
Mitigation shall be required for direct impacts of Class I, Class II, or Class III wetlands
subject to the following conditions:
(1) Mitigation shall be provided for at a minimum of a one to one ratio for wetland
acreage directly impacted. Allowable mitigation includes purchase of wetlands for
preservation or the creation of wetlands either on or off site. The preservation of
upland vegetative communities may serve as mitigation to Class III wetlands subject
to the requirements of Policy I.1.5(1)(c)4. No credit shall be given for exotic removal
as mitigation for impacts to wetlands.
(2) Loss of storage or conveyance volume resulting in a direct impact to flowway
wetlands shall be compensated for by providing an equal amount of volume on site
and within or adjacent to the impacted flowway wetland.
(3) Protection shall be provided over wetlands or upland vegetative communities offered
as mitigation by placing a conservation easement over the land in perpetuity,
providing for initial removal of Class I invasive exotic plants defined by the Florida
Exotic Pest Plant Council and continuing exotic plant maintenance.
(4) The County's NRPA areas are the preferred location for off-site and "out of the flow
way" mitigation.
(5) All mitigation shall occur in Collier County
Policy I.1.7
All property owners shall have the right to transfer density to the upland area of the site
subject to the requirements of other applicable Growth Management Plan policies.
Policy I.1.8
Collier County shall require identification of Class I, Class II, and Class III wetlands as
part of the County's EIS requirements. The EIS will identify any proposed impacts to
these wetlands,the proposed mitigation strategies and all buffering requirements.
Policy I.1.9
All non-agricultural development projects and individual single family residential
building permits in Southern Golden Gate Estates and the Area of Critical State Concern
shall obtain the appropriate federal and state wetland-related permits before Collier
County issues its building permit.
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 7.3 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
Policy I.1.10
Collier County shall inform applicants for individual single family building permits
which are not part of an approved development project (e.g. North Golden Gate Estates)
that federal and state wetland permits may be required prior to construction. The County
shall notify the applicable federal and state agencies of single family building permits
applications in these areas.
Policy I.1.11
These policies shall not be construed to prevent timbering operations when timbering
operations utilize best management practices to minimize the effects on the wetlands.
Policy I.1.12
This objective and its attendant policies are not intended to duplicate federal, state or
regional agency regulatory wetland permitting programs.
Policy I.1.13
These policies are considered interim and may be modified as future Growth
Management Plan amendments are proposed during the completion of the Collier County
Rural and Agricultural Assessment, as allowed by the Administration Commission's
Final Order AC-99-002 dated June 22, 1999.
OBJECTIVE I.2
The County shall protect submerged marine habitats.
Policy I.2.1
The amount of permitted wet slips for marinas shall be no more than 18 boat slips for
every 100 feet of shoreline where seagrass impacts are less than 100 square feet. When
more than 100 square feet of sea grasses are impacted, then no more than 10 boatslips for
every 100 feet of shoreline are allowed.
Policy I.2.2
Impacts to sea grass beds shall be minimized by locating boatdocks more than 10 feet
from existing seagrass beds. Where this is not possible, boatdocks shall be sited to
impact the smallest areas of seagrasses possible,be no lower than 3.5 feet NGVD, have a
terminal platform no greater than 160 square feet, and have the access dock be no wider
than 4 feet.
Policy I.2.3
The protection of sea grass beds shall be a factor in establishing new or revising the
existing boundaries for speed zones to regulate boat traffic.
I
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 7.3 of the CCME.
Page-7
Proposed Countywide Policies
•
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
II. Protection of Native Vegetative Communities
OBJECTIVE 11.1
The County shall protect native vegetative communities through the application of
minimum preservation requirements. The following policies provide criteria to make this
objective measurable.
Policy 11.1.
For the County's Urban Designated Area, the percentage of native vegetation preserved
on site shall be as follows unless the development occurs within the Area of Critical State
concern where the standards referenced in the Future Land Use Element apply:
Coastal High Hazard Area Non-Coastal High Hazard Area
Residential and Less than 2.5 ac. 10% Less than 5 ac. 10%
Mixed Use Equal to or>than 2.5 ac. 25% 5 and 20 ac. 15%
Development Equal to or>than 20 ac. 25%
Golf Course 15% 15%
Development
Commercial and <than 5 ac. 10% <than 5 ac. 10%
Industrial Equal to or>than 5 ac. 15% Equal to or>than 5 ac. 15%
Development
The following criteria apply to the above preservation requirements:
(1) The preservation requirements are calculated on the amount of naturally functioning
native vegetation found on-site. Vegetative communities having less than 75% or
less canopy coverage of melalueca shall be defined as naturally functioning since
prohibited exotics can be removed to provide the vegetative community with a
sufficient degree of functionality for the purpose of these criteria.
(2) The preservation of the native vegetation shall include both the understory and the
ground cover emphasizing the largest contiguous area possible.
(3) When different native plant communities exist on site, the development plans will
reasonably attempt to preserve examples of all of them.
(4) When listed plant and animal species are identified on site, priority shall be given to
preserving these habitats first, as a part of the retained native vegetation requirement.
(5) For parcels containing gopher tortoises, priority shall be given to protecting the
largest most contiguous gopher tortoise habitat with the greatest number of active
burrows, and for providing a connection to off site adjacent gopher tortoise
preserves.
(6) Where a project has included open space, recreational amenities, or preserved
wetlands that meet or exceed the minimum open space criteria of Collier County,this
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
policy shall not be construed to require a larger percentage of open space set aside to
meet the native vegetation requirements.
(7) Exceptions, by means of mitigation in the form of increased landscape requirements
shall be granted for parcels that can not reasonably accommodate both the
preservation area and the proposed activity. Criteria for allowing these exceptions
include:
(a) Where site elevations or conditions requires placement of fill thereby harming or
reducing the survivability of the native vegetation in its existing locations;
(b) Where the existing vegetation required by this policy is located where proposed
site improvements are to be located and such improvements can not be relocated
as to protect the existing native vegetation;
(c) Where native preservation requirements are not accommodated, the landscape
plan shall re-create a native plant community in all three strata (ground covers,
shrubs and trees), utilizing larger plant materials so as to more quickly re-create
the lost mature vegetation.
(8) Parcels that were cleared of native vegetation prior to January 1989 shall be exempt
from this requirement.
(9) This policy shall not be interpreted to allow development in wetlands, should the
wetlands alone constitute more than the portion of the site required to be preserved.
(10)This Policy shall apply to the Urban Designated areas. The County anticipates that
this Policy will be modified for other Future Land Use Designations as future Growth
Management Plan amendments are proposed during the completion of the Collier
County Rural and Agricultural Assessment, as allowed by the Administration
Commission's Final Order AC-99-002 dated June 22, 1999.
Policy II.1.2
Prohibited invasive exotic vegetation shall be removed from all new non-agricultural
developments.
(1) Applicants for development permits_shall submit and implement plans for invasive
exotic plant removal and long-term control.
(2) Maintenance plans shall describe specific techniques to prevent re-invasion by
prohibited exotic vegetation of the site in perpetuity.
(3) The County shall maintain a list of prohibited invasive exotic vegetation in the Land
Development Code and update it as necessary.
Policy II.1.3
Agriculture shall be exempt from the above preservation requirements contained in
Policy 11.1.1 provided that any new clearing of land for agriculture shall not be converted
to non-agricultural development for at least ten years. For any such conversions in less
than ten years, the requirements of Policy 11.1.1 shall be applied to the site at the time of
the conversion. Within the Urban Designated Areas, the percentage of naturally
functioning native vegetation preserved shall be calculated on the amount of vegetation
occurring at the time of the agricultural clearing, and if found to be deficient, a native
plant community shall be restored as outlined in Policy 11.1.1 (8).
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
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Proposed Countywide Policies
P �
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
OBJECTIVE 112
The County shall require native vegetation be incorporated into landscape designs in
order to promote the preservation of native plant communities and to encourage water
conservation through native vegetation.
Policy II.2.1:
At least 75% of landscaped trees and 50% of landscaped shrubs shall be native Southern
Floridian species, unless the site is north and east of Route 41 where the shrub
requirement is a minimum of 35%. For proposed projects on coastal shorelines and/or
undeveloped and developed coastal barrier islands, landscaping requirements shall be
comprised of 100%native Southern Floridian species. (Reference CCME Policy 10.6.1.)
Policy II.2.2:
For residential and commercial wet detention ponds,ten percent of the finished lake
banks shall be planted with native aquatic vegetation on a littoral shelf.
•
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R A-F-T(11-8-00)
III. Wildlife Protection .-.
OBJECTIVE I11.1
The County shall direct incompatible land uses away from listed animal species and their
habitats.
Policy III.1.1
Incompatible land uses are directed away from listed species and their habitats by the
following mechanisms:
(1) Conservation Designation on the Future Land Use Map
The overall purpose of the Conservation Designation is to conserve and maintain the
natural resources of Collier County and their associated environmental, and
recreational and economic benefits. The allowed land uses specified in the FLUE's
Conservation Designation will accommodate limited residential development and
future non-residential development. These limitations help direct many incompatible
land uses from listed species and their habitats contained in this Future Land Use
Designation. (Reference FLUE.)
(2) Big Cypress Area of Critical State Concern Overlay(ACSC)
The land development regulations contained in the ACSC Overlay district provide
standards that facilitate the goal of directing incompatible land uses away from listed
species and their habitats. (Reference FLUE.)
(3) Natural Resource Protection Areas (NRPAs)
The purpose of Natural Resource Protection Areas (NRPAs) is to assist State and
Federal agencies' efforts to protect endangered or potentially endangered species and
their habitats (Reference CCME Objective 1.3). These areas describe large, intact and
relatively unfragmented habitats important for many listed species. Within these
areas, only agriculture and directly related uses and one single family dwelling unit
per parcel or lot created prior to June 22, 1999 shall be allowed. These limitations
have been adopted as interim development standards pursuant to Administration
Commission Final Order AC-99-002 dated June 22, 1999. (Reference the FLUE for
the specific requirements.) These restrictions also direct incompatible land uses from
listed species and their habitats.
(4) All other policies supporting Objective III.1.
Policy 111.1.2
Non-agricultural development, excluding individual single family residences, shall be
directed away from listed species and their habitats by complying with the following
guidelines and standards:
(1) A species survey to include listed species that are known to inhabit biological
communities similar to those existing on site shall be required for developments
greater than 10 acres as part of the County's Environmental Impact Statement review
process. The survey shall be conducted in accordance with the requirements of the
Florida Fish and Wildlife Conservation Commission. The County shall notify the
(Rural Fringe and Rural Land areas will likely have additional policies and objectives)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 7.3 of the CCME.
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Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
Florida Fish and Wildlife Conservation Commission of the existence of any listed
species that may be discovered. The EIS requirement may be waived subject to the
following criteria:
(a) A single family or duplex use on a single lot or parcel;
(b) Bona fide agricultural uses;
(c) Any land or parcel of land that after inspection by County staff and filing of a
written report exhibits the following characteristics:
1. The proposed use of the site will not further degrade the environmental quality
of the site or surrounding areas beyond the existing conditions;
2. The major flora and fauna have been altered or removed to such an extent as
to preclude their reasonable regeneration or useful ecological purpose;
3. The surface and/or natural drainage or recharge capacity of the site has been
altered such that it will not be further degraded by the proposed activity;
4. The use or development of the site will improve and correct existing
ecological deficiencies;
5. The use or development of the site will utilize existing buildings or structures
and will not require any major alteration of the existing landforms, drainage,
or flora and fauna elements of the property.
(2) Habitat and management plans for listed species shall be submitted for County
approval. These plans shall describe how the project design minimizes impacts on
listed species.
(a) Management plans shall incorporate the following guidelines to protect listed
species and their habitats:
1. Utilize required open space requirements to maintain buffer areas between
important wildlife habitat areas and areas dominated by human activities.
2. Facilitate wildlife movement along natural trails by preserving appropriate
areas and by utilizing fencing and walls that encourage wildlife to use natural
corridors.
3. Locate roads away from identified and potential natural travel corridors used
by wildlife.
4. Utilize appropriate roadway crossing and signage when it is unavoidable for
roadways to cross wildlife trails.
5. Provide for the appropriate use of fences, walls or other obstructions to
encourage wildlife to use natural corridors or to separate wildlife corridors
from areas of human activity.
6. The following references shall be used as appropriate to prepare the required
management plans;
a. South Florida Multi-species Recovery Plan,USFWS, 1999.
b. Habitat Management Guidelines for the Bald Eagle in the Southeast
Region,USFWS, 1987.
c. Ecology and Habitat Protection Needs of Gopher Tortoise (Gopherus
polyphemus) Populations found on Lands Slated for Large Scale
Development in Florida, Technical Report No. 4, Florida Game and Fresh
Water Fish Commission, 1987.
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
Page-12-
Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
d. Ecology and Development-Related Habitat Requirements of the Florida
Scrub Jay (Aphelocoma coerulescens), Technical Report No. 8, Florida
Game and Fresh Water Fish Commission, 1991.
(b) When listed species are identified on site, priority shall be given to preserving the
listed species habitats first, as a part of the retained native vegetation requirement
contained in CCME Policy ILL
(c)In order to protect the West Indian Manatee (Trichechus manatus) and its habitat,
a marina siting rating system shall be used to limit wet-slip densities for all multi-
slip docking facilities with ten(10) slips or more and for all marina facilities. The
rating system shall be applied as follows:
1. Sites shall be rated as Preferred, Moderate and Protected based on water
depth,native marine habitat and manatee abundance;
2. New or expanded wet slip marinas and multi-family facilities shall be allowed
at a density of up to:
a. 18 boat slips for every 100 feet of shoreline for preferred sites,
b. 10 boat slips for every 100 feet of shoreline for moderate sites, and
c. 1 boat slips for every 100 feet of shoreline for protected sites.
All multi-slip docking facilities with ten slips or more and all marina facilities
shall adopt and implement a Manatee Awareness and Protection Plan to include a
Education and Public awareness program and the posting and maintaining of
Manatee awareness signs.
(d) In order to protect loggerhead (Caretta caretta) and other listed sea turtles that
nest along Collier County beaches,projects within 300 feet of the MHW line shall
minimize outdoor lighting to that necessary for security and safety. Floodlights
and landscape or accent lighting shall be prohibited.
(e) For parcels containing gopher tortoises (Gopherus polyphemus), priority shall be
given to protecting the largest most contiguous gopher tortoise habitat with the
greatest number of active burrows, and for providing a connection to off site
adjacent gopher tortoise preserves. (Reference II.1.1 c.)
(f) Habitat preservation for the Florida scrub jay (Aphelocoma coerulescens) shall
conform to the guidelines contained in Technical Report No. 8. The required
management plan shall also provide for a maintenance program and specify an
appropriate fire or mechanical set of protocols to maintain the natural scrub
community. The plan shall also outline a public awareness program to educate
residents about the on-site preserve and the need to maintain the scrub vegetation.
(g) For the bald eagle (Haliaeetus leucocephalus), the required habitat management
plans shall establish protective zones around the eagle nest restricting certain
activities. The plans shall also address restricting certain types of activities during
the nesting season.
(h) For the red-cockaded woodpecker (Picoides borealis), the required habitat
protection plan shall outline measures to avoid adverse impacts to active clusters.
Where adverse effects can not be avoided, measures shall be taken to minimize
on-site disturbance and compensate or mitigate for impacts that remain.
a. On-site minimization measures can include relocating portions of a project to
conserve the most suitable areas for red-cockaded woodpeckers, connecting
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
Page-13-
Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
portions of project areas to preserves, and establishing preserves similar in
size to the amount of suitable habitat affected by a particular project.
b. Habitat compensation results in the protection and management of suitable
red-cockaded habitat in another area. Areas used as habitat compensation
shall be located in the vicinity of the affected habitat, where appropriate, to
avoid further fragmentation and isolation of existing habitat.
(i) In areas where the Florida black bear (Ursus americanus floridanus) may be
present, the management plans shall provide a system where garbage can be
placed in bear-proof containers,preferably at a central location. The management
plan shall also identify methods to inform local residents of the potential problems
of black bears what should be done to avoid attracting black bears into the project.
(j) For projects located in Priority I and Priority II Panther Habitat areas, the
management plan shall attempt to avoid the destruction of undisturbed, native
habitats that are preferred by the Florida panther (Felis concolorcoryi) by
directing intensive land uses to currently disturbed areas. Preferred habitats
include pine flatwoods and hardwood hammocks. In turn, these areas shall be
buffered from the most intense land uses of the project by using low intensity land
uses (e.g.,parks,passive recreational areas golf courses). The management plans
shall also address the opportunity to utilize prescribed fire to maintain fire-
adapted preserved vegetative communities and provide browse for white-tailed
deer.
(k) The Management Plans shall contain a monitoring program and provide for
annual reports to the County.
(3) The County may consider and utilize recommendations and letters of technical
assistance from the Florida Fish and Wildlife Conservation Commission and
recommendations from the US Fish and Wildlife Service in issuing development
orders on property containing listed species.
(4) Non-agricultural developments shall comply with all applicable federal and state
permitting requirements dealing with listed species protection.
OBJECTIVE I11.2
Historical data from 1990-1996 shows that the average number of manatee deaths in
Collier County due to incidents with watercraft is approximately 3.2 per year per 10,000
boats. Through the following policies, the County's objective is to minimize the number
of manatee deaths due to boat related incidents.
Policy III.2.1
The County shall apply the marina siting criteria contained in Policy III.1.2 (c)in order to
direct increased boat traffic away from sensitive manatee habitats.
Policy 111.2.2
Seagrass beds shall be protected through the application of Policy I.2.2.
Policy 111.2.3
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6S and 7.1 through 73 of the CCME.
Page-14-
Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
The County shall maintain the manatee protection speed zones that were adopted in the .-.
Collier County Manatee Protection Plan and make revisions as needed.
Policy 111.2.4
The County shall continue to work with appropriate State and Federal agencies to
identify areas where propeller driven boats or speed zones may need to be restricted or
changed.
OBJECTIVE III.3
Historical data from 1996-1999 shows that the average number of sea turtle
disorientations is 5% of total nests. Through the following policies, the County's
objective is to minimize the number sea turtle disorientations
Policy 111.3.1
The County shall apply the lighting criteria contained in Policy II1.1.2 (2)(d)in order to
protect sea turtle hatchlings from adverse lighting conditions.
Policy III.3.2:
County staff shall conduct nightly inspections to ensure coastal properties comply with
proper lighting conditions during sea turtle season(May 1 through October 30).
Policy I11.3.3:
The County shall update the public awareness materials designed to inform coastal •�
residents how they can protect sea turtles.
OBJECTIVE 111.4
The County shall improve marine fisheries productivity by building additional artificial
reefs.
Policy 111.4.1:
The County shall continue to apply for reef construction grants and annually place more
materials on the existing permitted sites.
Policy 111.4.2:
The County will coordinate its activities with the Florida Department of, Environmental
Protection, the Marine Extension Office and other appropriate agencies.
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
Page-15-
• •
r I
Proposed Countywide Policies
Wetlands,Habitat and Wildlife Issues D-R-A-F-T(11-8-00)
IV. Protection of Natural Reservations(*)
OBJECTIVE IV.1
The County shall protect existing natural reservations identified in the Recreation and
Open Space Element and ecological communities shared with or tangential to State and
Federal lands and other local governments.
Policy IV.1.1
The County shall coordinate with adjacent counties, State and Federal agencies, other
owners of lands held in the public trust, and the Southwest Florida Regional Planning
Council to protect unique ecological communities located along the County's border.
Policy IV.1.2
The County shall meet with the appropriate counties as necessary to discuss upcoming
land development projects that would have an impact on ecological communities in both
Counties.
Policy IV.1.3
All requests for land development within 1000 feet of natural reservations shall be
reviewed as part of the County's development review process. The projects shall buffer
the natural reservations by locating the least intensive land uses adjacent to the natural
reservation.
(*) means areas designated for conservation purposes, 9-J-5.003(77)
(Rural Fringe and Rural Land areas will likely have additional policies and objectives.)
These Objectives and Policies are proposed to replace the Objectives 6.1 through 6.8 and 7.1 through 73 of the CCME.
Page-16-
!� 1
Ji,
� I
CARLTON FIELDS
ATTORNEYS AT LAW
215 SOUTH MONROE STREET.SUITE 500 MAILING ADORES$:
iiiYYY TALLAHASSEE.FLORIDA 32304-1866 POST OFFICE DRAWER I%
TEL 1550)224-1585 MX 1*3W 222-0.595 TALLAHASSEE.n32302-0190
1
November 8,2000
1
# ' Robert Mulhere,Director VIA FACSIh .E (941)643-6869
Collier County Government
Community Development&Environmental
• Services Division
2800 North Horseshoe Drive
Naples,Florida 34104
Bill Lorenz VIA FACSIMILE (941)774-8282
Collier County Government
3301 E.Tamiami Trail
Building H,3rd Floor
` Naples,Florida 34112
Re: Review of Draft Goals,Objectives and Policies on Wetlands,Native Vegatative
Communities and Listed Species
I
. Dear Bob and Bill:
This letter will confirm that we have reviewed the initial draft policies Bill provided on
wetlands,native vegetative communities and listed species. After considerable discussion
amongst ourselves(with planners Jack Sullivan and Richard Winters)as well as telephone
conversations with both of you,Marjorie Student,Patrick White and a lengthy discussion with
Bob Cambric,we have recommended additional attention be directed at the wetlands portion of
those initial draft policies. I will explain below.
The Final Order required the wetlands policy"direct development away flout wetlands
and upland habitat to protect water quality,quantity and natural water regime and to protect
listed species and habitat" After all,the crux of the litigation was that the County did not have
comprehensive policies dealing with natural resource protection,including wetlands. The
original draft that Bill provided reflected the County's past decisions to avoid regulatory
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Robert Mulhere,Director
November 8,2000
Page 2
programs in addition to existing ones. That language indicated that the natural functions of
wetlands would be protected and policies then went on to say that one should stay out of
wetlands. However,there were no standards that would meet the requirements of Chapter 9J-5,
F.A.C.,as I'll explain below. Accordingly,we felt these policies needed to be strengthened to
emphasize development was indeed being directed away from wetlands and that the values listed
would be protected.
Additionally,I would point out that,historically,the county-wide policies that protect
wetlands consisted primarily of Natural Resource Protection Areas(NRPA's),the Arca of
Critical State Concern(ACSC)designation and designated Conservation areas on the Future
Land Use Map(FLUM).I have been amongst those who have questioned the use of NRPA's as a
mechanism and have suggested in their place comprehensive natural resource protection policies.
However,I have come to recognize that doing away with NRPA's at this point would be
problematic from a number of standpoints. And,in any event, since the NRPA's themselves are
largely wetlands,probably it makes little difference whether one keeps the NRPA concept or '^
does away with it and implements more comprehensive policies. But,even with NRPA's,we
will still need comprehensive policies outside of the NRPA's and designated ACSC and
' Conservation areas as required by the Final Order.
Subsequent conversations with you,Bill Lorenz,Marjorie Student and Patrick White,
indicate that data analysis that Bill Lorenz has been able to develop shows that 75-80%of the
wetlands in the County are located within the NRPA's. If these areas are designated for special
construction and restrict development sufficiently to protect both the natural functions of the
wetlands as well as the habitat,we believe that the primary requirements of the Final Order will
be met. However,as indicated above,there is also a need to provide policies for county-wide
protection of the remaining 20-25%of the wetlands since almost all parcels of land in the County
will have some wetlands on them. Although the Final Order does not give much guidance on
specific measures to protect and serve natural wetlands functions,it is clear from 9J-5.01(3),
F.A C.,that the`function"of the wetland shall be conserved. Consequently,it is imperative the
County staff determine from supporting data and analysis(which could be done during the
pluming and development process)the actual types,values,functions,sizes,conditions and
locations of wetlands on a parcel in order to meet this requirement. After all,if these wetlands
are proposed to be impacted,the Army Corps of Engineers(and South Florida Water
Management District)will require such an analysis,so the applicant is not being asked to provide
anything in addition to that which they are doing now,although the timing may be moved up
slightly'.
' I
Secondly,9J-5.013(3),P.A.C.,provides some guidance as to how incompatible land uses
can be directed away from wetlands. The rule provides:
TAL1515578.01
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•
Robert Muihere,Director
November 8,2000
Page 3
;
The type,intensity or density,extent,distribution and location of allowable land
uses and the types,values,functions,sizes,conditions and locations of wetlands
are land use factors which shall be considered when directing incompatible land
•
uses away from wetlands. Land uses shall be distributed in a manner that
minimizes the effect and impact on wetlands.
•
Clearly,what is intended is a planning process that would allow a balancing of future
development with protection of wetland functions. This protection must be quantifiable based on
listed factors. Note,however,that the process and the language do not call for total protection
but rather a minimization of impacts. Some parcels may require very little adjustment of the
development,plans to minimize impacts and protect wetland functions. Other parcels may
• require significant alteration to development plans to minimi?e impacts and protect wetland
functions. Frankly,it depends upon the"types,values,functions,sizes,conditions and locations
of wetlands".
Many of the comprehensive plans around the State provide language which would
indicate if something is a high quality,non-degraded or unaltered wetland—all terms used in
various plans—then an applicant may not impact it except up to X%(usually 5-10%)of the
resource or some other de minimous amount. Even then,inpact is usually approved through a
commission variance if one can show that the function will not be adversely affected and that the
applicant has made all reasonable attempts to avoid impacting that wetland. Reasonable in this
case is not a scientific term but rather a matter usually within the discretion of the decision
makers because it may include engineering,legal,biological,etc.,factors. In short,it's a balance
up to an impact cap depending an the overall quality of the resource. Similarly,where wetlands
arc in more urban areas and are therefore more likely to be impacted,the County may allow a
much greater impact to those wetlands precisely because they would:be altered,degraded or
otherwise already impacted in some fashion.
In any event,the process I described above,including limitation of development and
•
NRPA's,ACSC's and Conservation areas,does not duplicate established regulatory programs of
Federal,State or regional agencies with jurisdiction of the wetlands. This process directs
development through the planning process rather than merely reacting as a regulatory agency to
specific development proposals. Additionally,we have had some limited discussion that,in
addition to NRPA's and Conservation areas,you mightconsider classifying wetlands based on
their functions. During the piarnoing process,activities within a project area would be redirected,
mitigated or limited to some degree sufficient to maintain designated functions including
wetlands on site. I believe that,if we adhere to the concepts I have laid out,we will meet the
required standards in the Final Order and in Chapter 91-5.,F.A.C.
I hope this clarifies our mutual understanding of the policies needed to strengthen the
wetlands section of the Comprehensive Plan. It is really up to the policy makers at the County as
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•
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Robert Mulhere,Director
• November 8,2000
. Page 4
to how they want to get there and I could recommend a number of ways based on plan language
from other counties. Still,the most recent draft that staff is proposing would meet those criteria.
If you have any questions regarding our comments,please don't hesitate to contact me.
Sincerely,
Nancy G_Lmnan
NCL:zucj
cc: Marjorie Student,Esq. •
Patrick White,Esq. •
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Memorandum
To: Collier County PlanninG Commission
Collier County Environmental Advisory Council
Collier County Development Services Advisory Committee
From: Bob Mulhere,AICP, Planning Services Director
Date: November 7,2000
Subject: Proposed Hearing Examiner Program: Implications on Roles o f Advisory
Committees and the Development Review Process
n Attached to this memorandum is a copy of the BCC agenda item wherein staff presented and the
_ Board approved the implementation of a hearing examiner program for Quasi-judicial land use
hearings. The executive summary and attachments provide a full explanation of the rationale
and the merits of such a program. I will be attending the next Planning Commission,
Environmental Advisory Council&Development Services Advisory Council meetings to
discuss this matter further with each committee and to answer any questions that you may have.
Enclosure
C: David C. Weigel, County Attorney
Patrick G. White,Assistant County Attorney
Marjorie Student,Assistant County Attorney
John Dunnuck Acting Administrator,
Community Development&Environmental Services
Planning Services Department
Community Development & Environmental Services Division
•
•
110/"N EXECUTIVE SUMMARY
DISCUSSION OF IMPLEMENTATION OF A HEARING EXAMINER
PROGRAM FOR QUASI-JUDICIAL LAND USE HEARINGS.
OBJECTIVE: The objective of this executive summary is to have the Board of County
Commissioners consider the implementation of a hearing examiner program for quasi-
judicial land use hearings. A hearing examiner process, if implemented, will result in
greater opportunities for the Board and various advisory committees, particularly the
Collier County Planning Commission (CCPC) and the Environmental Advisory Council
(EAC) to devote more time to policy matters as they relate to growth management, land
use, development standards and environmental protection measures. Additionally, as
recommended, the program will require the development of better-defined procedures
dealing with ex-parte communication.
CONSIDERATIONS: Staff is providing a rationale for utilizing a hearing examiner in
Collier County for quasi-judicial land use petitions requests under the current regulatory
framework. An analysis of the pros and cons of, and fiscal impacts associated with,
establishing a hearing examiner program for quasi-judicial land is offered in order to
facilitate a policy discussion by the Board.
110e"N Pros & Cons of Hearing Officer Program in Collier County (versus the Status Quo)
Pros:
1) Utilization of a hearing officer program will allow additional time for BCC focus and
deliberation on important management level policy making issues. Many land use
petitions, even relatively minor requests, such as some variances,require significant
time commitments on the part of the Board, both collectively in a pubic hearing
setting, and individually in meeting with applicants and concerned constituents. As is
the case in Lee County, with the hearing officer program, the Bo and still has the
opportunity to consider the more wide ranging zoning cases while functioning more
as an appellate body. As such, the BCC renders a decision "on appeal" that is based
strictly on the record presented by all interested parties at the hearing examiner
hearing level. Participation in the "appeal process" is limited to parties of record and
their representatives presenting their most compelling arguments as supported by the
evidence they have entered into the record.
2) As an "appellate body," the Board can prohibit ex-parte communications by the
participants because the "appellate decision" will be made ina public hearing and
based strictly on the record established at the hearing examiner level. By prohibiting
(or strictly regulating) ex-parte communications, a level playing field is ensured for
all participants in the application review and hearing process.In order to avoid the` y
concerns of tnatters not being presented in public view for all participants'to'coirimerit • - %
bn, ex parte communications with the hearing examiner=should also.be prohibifed. • •
An explicit rationale for precluding ex-parte'communications in Lee-,County is set
AGENDA ITEM
No. O (T/G?
OCT 4 2000
forth in the attached (Exhibit "C) June 9`h memorandum from Attorney Jones to the
Lee BCC.
3) The time between submission of an application and receipt of a final decision can be
expedited with the hearing examiner process because scheduling of multiple advisory
board hearings and advertising for such hearings will no longer be necessary.Note:
The fact that these advisory boards will no longer review quasi-judicial petitions or
make recommendations to the Board on such matters should not be construed as
lessening the value or importance of such advisory bodies. In fact,the EAC and the
CCPC could, under a hearing examiner program, utilize the newfound time to focus
on making recommendations to the Board on important policy issues as they relate to
natural resource protection and growth management issues.
4) Implementing a hearing officer program reduces the likelihood of successful
challenges to local land use decisions. This occurs because of a more consistent
application of existing regulations through a standard hearing process that results in
the development of a detailed factual record that supports those coriclusions with
expressly stated findings leading to a written recommendation.
Cons:
1) There may be a perception on the part of applicants and constituents that elected
officials are not as accessible if pre-hearing, ex-parte communication is prohibited.
To address this concern, an alternative could be to require complete and specific
10°' disclosure of any pre-hearing ex-parte communication with an elected official through
a more formalized process wherein the names, contact information, and the exact
nature of the ex-parte communication with elected officials is tracked and disclosed at
the public hearing. [While this disclosure of pre-hearing contacts is currently
required by County law, a more formalized process should be implemented to avoid
the appearance of or potential for prejudice.]
FISCAL IMPACT: Total annual operating costs are predicted to be approximately
$212,000. One time start up costs are predicted to be approximately$42,00)0.00.
Appropriations for rent will be necessary , at least on a temporary basis until the
anticipated addition to the Development Services Center is completed in 2002.
GROWTH MANAGEMENT IMPACT: The utilization of a hearing officer for quasi-
judicial hearings (and other fact driven determinations) is fully consistent with Florida's
Growth Management Act. Where the Collier County Growth Management Plan,as well
as the Collier County Land Development Code, make reference to powers and duties of
various advisory boards (particularly the EAC and the CCPC) and to the powers and
duties of the BZA, it will be necessary to amend those references and to provide for the
establishment,powers, and duties of the hearing examiner.
RECOMMENDATION: Staff recommends the Board endorse.the establishment of a.-
Hearing
.Hearing Examiner Program for quasi-judicial land use hearings. . It is further
• AGENDA ITEMM
OCT 2 4 2000
2
014
recommended that staff (County Attorney and Community Development &.
Environmental Services)be directed to:
1. Draft necessary amendments to the Collier County Special Act and to coordinate with
Collier County Legislative Delegation to initiate legislative action to=mend that Act
as necessary to provide for implementation of the hearing examinerprocess;
2. Prepare an ordinance creating the Collier County Hearing Examiner Program,to be
timed as necessary with amendments to the Special Act, the Collie County Growth
Management Plan and Land Development Code;
3. Include within the enabling hearing examiner ordinance, a prohibition on ex-parte
communication for quasi-judicial hearing matters with the hearing examiner;
4. Include within the enabling hearing examiner ordinance, a prohibition on ex-parte
communication for quasi-judicial hearing matters with the Board(or=stablish a more
standardized process for detailed disclosure of pre-hearing ex-parte communication
with the Board);
5. Establish the Board of Zoning Appeals (or the Board of County Cor mnissioners) as
the final approval authority for all rezoning requests (including PUD rezones)and all
conditional uses, with an initial recommendation being prepared by the hearing
examiner;
- 6. Establish the Hearing Examiner as the final authority on all other less- broad-reaching
quasi-judicial land use petitions, such as variances, with appeals from. those decisions
going either directly to the circuit court,or the BZA;
7. Review & revise the roles of the EAC and CCPC, specifically .expanding their
respective roles to proactively review and advise the BCC on legislative & policy
94
matters related to natural resource protection policies and growth management goals,
polices, and objectives, and land development regulations.
8. Target the implementation of the Hearing Examiner Program for June 2001.
PREPARED BYDate: /6
Robert J.Mulhere,AICP
Planning Services Director
� vpicb6
REVIEWED BY: 1 7►, �VDate: )� _
Patrick G. 'te,Assistant County Attome
REVIEWED BY: Date:
David C.Weigel, County Attorney
APPROVED BY: r _• ._ t ✓KA,' Date: /0'-1/'0 0
J• 4 M.Dunnuck,Interim Administrator _- - '' •
Community Development&Environmental Serwices
.• - . . 'AGENDA 1
Na
OCT 2 4 2000
3
111/e•' Utilization of a Hearing Examiner Program for Quasi-Judicial Land
Use Hearings.
Detailed back-up Report to BCC:
Historical Perspective
Hearing examiners have long been used to implement many federal administrative
processes. As the federal and state administrative functions developed,the use of hearing
examiners evolved as an efficient, expeditious process for performing several functions.
These functions include holding fair and impartial fact finding hearings, preparing
intelligible reports or recommendations, and writing legally binding orders, all of which
are solely based upon evidence produced during, or submitted as part of, the particular
administrative hearing. A. Daniel Lauber states, "the hearing examiner makes initial
findings of fact based upon the evidence and ensures the orderly, clear development of
the case both during the hearing and in the initial or recommended decision...." 1
For a number of years, Florida's local governments have relied on hearing examiners or
special masters to make recommendations, or to rule, on selected local land use matters
and code enforcement cases.In 1993, however,the Florida Supreme Court decided a case
which recognized that certain local government land use cases were more quasi-judicial
than legislative in nature.2 This case, and subsequent lower court opinions, have caused
local governments to reconsider the process by which land use decisions are approved. In
Snyder, the Supreme Court of Florida held that local comprehensive plans provide courts
with a meaningful standard of review for land use decision-making.As one commentator
put it, the court "acknowledged that historically local governments have enjoyed broad
discretion over zoning decisions because they were considered legislative actions.... The
advent of[statewide] comprehensive plans, the court opined, changed that." 3 The court
held that as a result of comprehensive plans providing a policy-level framework for
reviewing specific parcel rezoning requests, zoning decisions were more quasi-judicial
than traditional legislative policy-making.
As stated by the Florida Supreme Court, a legislative action"results in the formulation of
a general rule of policy, whereas judicial action results in application of a general rule of
•
1 Lauber, Daniel (1975, September). The Hearing Examiner in Zoning
Administration. Planning Advisory Service,Report#312.
2 Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469
(Fla. 1993). . • . _
3 Dawson, Mary (1996)The Best Laid Plans;The Rise and Fall of Growth
Management in Florida. Journal of Land Use &Environmental Law.. AGENDA ritiA
No_ g
OCT- 12 4 2000
policy."4 Under the Florida Supreme Court's ruling, it is"the character of tlhe hearing that 0
determines whether or not board action is legislative or quasi judicial.'5 Quoting the
lower court,the Florida Supreme Court reaffirmed the distinction of legislative vs. quasi-
judicial as it relates to local land use determinations:
[I]t is evident that comprehensive rezonings affecting a large portion of
the public are legislative in nature. However, ... [r]ezoning actions which
have an impact on a limited number of persons or property writers, on
identifiable parties and interests,where the decision is contingent om a fact
or facts arrived at from distinct alternatives presented.at a hearing, and
where the decisions can be functionally viewed as policy appl ication,
rather than policy setting, are in the nature of... quasi-judicial action'....6
Thus, prior to Snyder, a local government's land use decisions enjoyed a "legislative"
presumption of correctness when challenged. Snyder now requires "stri ct scrutiny for
quasi-judicial decisions and reallocates the burden of proof used by lower courts in
evaluating cases. The Snyder ruling lays out two basic concepts: first, that a property
owner's right to own and use his property is constitutionally protected;and second, the
local government is bound to strictly comply with the adopted comprehensive plan."7
Under Snyder, the government must "demonstrate that maintaining the existing zoning
classification[denying the requested rezone] accomplishes a legitimate pablic purpose ...
[and that] the refusal to rezone the property is not arbitrary, discriminatory, or
unreasonable.s8 Most significantly, the local government's decision,whether to approve,
010
but especially in order to deny a request, must be supported by substantial competent
evidence. In plain terms this means that, once an applicant has demonstrated that a
request for approval of a land use petition,-such as a rezoning action,is consistent with
the Comprehensive Plan, then the burden shifts to the local government to demonstrate,
through substantial competent evidence, that the proposal is, in specific ways, not
consistent with the adopted plan in order to deny the applicant's request.
Local Government Strategies for Dealing with Quasi-judicial Hearings
Following Snyder, local governments have been compelled to deal with significant
procedural challenges wrought by such hearings being considered quasi-judicial in
character. A case in point is the adoption by the BCC of detailed rules and procedures for
quasi-judicial hearings (attached as Exhibit"A"). These procedures are intended to ensure
4 Snyder, 627 So.2d at 474(emphasis in original).
5 Snyder, 627 So. 2d at 474.
6 Snyder, 627 So.2d at 474(quoting from the lower court,595 So.2d 65,78).
7 Dawson,Mary(1996)The Best Laid Plans: The Rise and Fall of Growth
Management in Florida. Journal of Land Use &Environmental Law. .w iT
• FSnyder, 627 So.'2d of 476 : •- " " ' • -- No. `'�
OCT 2 4 2000
2
that the Board's decisions in quasi-judicial land use hearings will not be overturned by the
110/-• courts for failure to provide adequate procedural due process. The County's current
procedural requirements apply to such matters as: pre-hearing submittals; stafflagency
recommendations; written presentations; public hearing guidelines; time limitation
guidelines;expert witness testimony; proponents or opponent testimony;order and subject
of appearance; sworn testimony; maintaining the public record; restrictions on testimony
or presentation of evidence;and custodial responsibilities for records.
The current structure for review of quasi-judicial land use matters requires a public
hearing before, and recommendation by, various advisory boards. In particular, the EAC
and CCPC render recommendations with the final decision being rendered by the BCC -
sitting as the Board of Zoning Appeals (BZA). Current problems/difficulties with this
process are:
1) It does not easily facilitate adherence to the.County's procedural rules and
guidelines for quasi-judicial hearings;
• 2) It does not easily replicate the quasi-judicial process by which a sustainable
record is consistently produced; and
3) In the case of quasi—judicial matters, these rules and procedures should be
applied in any advisory board hearing wherein a recommendation on a quasi—
judicial matter is rendered by the advisory body to the Board; i.e., a written
recommendation with appropriate references to the record presented at the
_ public hearing should be available for the BCC to consider in making its final
110P.**\ decision.
Other counties and municipalities have chosen to implement local administrative hearing
processes where quasi-judicial land use petitions are heard by a hearing examiner who
renders written findings of fact and conclusions of law. Fully one-half of the 22 counties
in.the State with populations exceeding 200,000 have implemented a hearing examiner
process to review quasi-judicial land use petitions. A number of those counties are
utilizing a hearing examiner to also review code enforcement cases and appeals of
administrative decisions and approvals. Interestingly, in 1989 (pre-Snyder), Lee County
initiated a hearing examiner program modeled after those then being used in the
Northwestern United States.
Attached (Exhibit "B") to this executive summary. is a report (without referenced
appendices) prepared by Lee County Assistant County Attorney Timothy Jones. The
report summarizes the procedures in place in Lee County prior to 1989, and the impetus
for the adoption of a hearing examiner program. The report further highlights the goals,
basic elements, significant features, practical problems, and ethical i ssues that are
characteristics of the Lee County. Hearing examiner program. The Lee County . -
information is provided merely to illustrate a long-standing and functioning program that
is currently in place and which can be used for comparison purposes.
•
Many of the same reasons for considering adoption of a hearing examiner process exist
today in-Collier County. Although Lee.County's-process. is a:useful-model, '-Ce} A-
pn"
No. .e4:01,05;1
0CT3 2 4 2000
•
•
0110
County desired to implement a hearing examiner program for considering= quasi-judicial
land use petitions (or for any other appropriate determinations), the program would need
to be tailored to meet Collier County's specific needs.
Pros & Cons of Hearing Examiner Program in Collier County(vs.the Status Quo)
Pros:
1) Utilization of a hearing program will allow additional time for B CC focus and
deliberation on important management level policy making issues.Many land use
petitions, even relatively minor requests, such as some variances,require significant
time commitments on the part of the Board, both collectively in a pubic hearing
setting, and individually in meeting with applicants and concerned constituents. As is
the case in Lee County, with-the hearing examiner program, the Boa_rd still has the
opportunity to consider the more wide ranging zoning cases while functioning more
as an appellate body. As such, the BCC renders a decision "on appeal" that is based
strictly on the record presented by all interested parties at the hearing examiner
hearing level. Participation in the"appeal process"is limited to participants of record
or their representatives. All present who appear to offer their most compelling
arguments as supported by the relevant evidence they have entered into the record.
• 2) As an "appellate body," the Board can prohibit ex-parte communications by the
•
participants because the "appellate decision" will be made in a pubic hearing and
based strictly on the record established at the hearing examiner level. By prohibiting0114/
(or strictly regulating) ex-parte communications, a level playing field is ensured for
all participants in the application review and hearing process. In order to avoid the
concerns of matters not being presented in public view for all participants to comment
on, ex parte communications with the hearing examiner should also. be prohibited.
An explicit rationale for precluding ex-parte communications in Lee County is set
. forth in the attached (Exhibit "C) June 9th memorandum from Attorrstey Jones to the
Lee County BCC.
3) The time between submission of an application and rendering of a final decision can
be expedited with the hearing examiner process because scheduling of multiple
advisory board hearings and advertising for such hearings will no longer be
necessary. Note: The fact that these advisory boards will no longer review quasi-
judicial petitions or make recommendations to the Board on such matters should not
be construed as lessening the value or importance of such advisorybo•dies. In fact, the
EAC and the CCPC could, under a hearing examiner program,utiliz=e the newfound
time to focus on making recommendations to the Board on important policy issues as
they relate to natural resource protection and growth management issues.
4) Implementing a hearing officer program reduces the likelihood of successful
challenges to local land use decisions. This occurs because of a more consistent
application of existing regulations through a standard hearing process that results in
the development of a detailed factual record that supports those conclusions with
expressly stated findings leading to a written recommendation. .: w• •
Cons: _ •
Z .
- A ITEJ
NoI�u���)
OC4T242000
Pg. V
•
e 1) There may be a perception on the part of applicants or constituents that elected
officials are not as accessible if pre-hearing, ex-parte communication is prohibited_
To address this concern, an alternative could be to require complete and specific
disclosure of any pre-hearing ex-parte communication with an elected official through
a more formalized process wherein the name contact information, and the exact
nature of the ex-parte communication with elec ' officials is tracked and disclosed at
the public hearing. V file this disclosure of pre ,earing contacts is currently required
by County law, a r: ore formalized process Miould be implemented to avoid the -
appearance of,or potential fo ,prejudice or bias.
Other Uses For A Hearing Examiner Pr cess - -
Code Enforcement: The Hearing:Examine3 )rc.zram may be further :paraded to function
as an alternative to the hearings before he Code Enforcement 1.pard. Many local
governments utilize a hearing officer cr a special master in this role to expedite
processing of these cases. This executive summary does not address;as role of a hearing
examiner in this capacity, nor does it provide an estimate of the fisci impacts associated
with that role. Lee County has successfully implemented such z process for over a
decade.
Additionally, a hearing examiner process may be used for other tv es o f exceptions or
deviations from the Land Development Code or from other free standing ordinances
where a finding of fact is required to determine that the request mee;. established criteria
IVfor approval of such exceptions. One practical example is for proc: sing requests for an
alternative impact fee calculation methodology.
Implications of the Special Act for Collier County(67-1246)
An initial review of Chapter 67-1246, Laws of Florida (House Bill 3022), known as the
•
"Special Act" for Collier County indicates that an amendment to said Act may be
necessary. Certain duties and responsibilities prescribed to the Planning Commission and
the Board of Zoning Appeals likely would have to be repealed. Also, authority for a
hearing examiner program would have to be provided.
FISCAL IMPACT: -
If limited to the role of hearing quasi-judicial land use hearings and reviewing
applications,---staff estimates the fiscal impact for start up and ongoing personnel and
operating costs of a hearing examiner program as follows:
•
i - •• . . . - - AGEND ITEM -
S'' Nom
OCT P 4 2000
5
• 01114
Item Quantity One Time Personnel Costs Anon Total
Cost (Salary& Openiiuig
(Capital) Benefits) Cede
Hearing Officer (1) $108,000.00 $108,000.00
(Licensed Attorney)
Administrative (1) $43,200.00 $43,200.00
Assistant
Secretary (1) $32,400.00 $32,400.00
Furniture (3) $9,000.00 $9,000.00
Vehicle (1) $16,000.00 $800.00 $16,800.00
Computers (3) $6,000.00 $500.00. $6,500.00
Rent/office space 1000 sq.ft. $15,00.-0 $15,000.00
Office move/set up f $9,000.00 $9,000.00
Office Supplies $2,000.00 $2,000.00* $4,000.00
Travel $1,500.00* $1,500.00
Continuing $1,500.001, $1,500.00
Ed./Professional
Development
Printing,Binding, $1,200.00 $1,200.00
Copying
Lease Copier $3,000.00 $3,000.00
Other Contractual $2,000.00 $2,000.00
Services 's
Memberships $1000.00* $1000.00
Total $42,000.00 $183,600.00 $28,500.00 $254,100.0001‘
Total annual operating costs are predicted to be approximately $212,000— One time start
up costs are predicted to be approximately $42,000.00. Appropriations for rent will be
necessary, at least on a temporary basis until the anticipated addition to time Development
Services Center is completed in 2002.
The above numbers do not reflect costs for petition advertising or court recording fees, as
these fees are currently paid for through the Planning Services budget arid no new costs
are anticipated for these functions as a result of implementation of a hearing examiner
program. While the Lee County Hearing Examiner Program is funded entirely through ad
valorem tax revenue, to the extent that a hearing examiner is responsib le for rendering
findings on land use petitions and any other matters,the revenue to covem- the anticipated
costs of the program may be generated in all or in part through lana use and other
application fees (113-revenue fund).
Prepared by : Robert J. Mulhere, AICP, Planning Services Director
. .. . •
- AGENDA
No.
OCT 2 4 2000
6
PIL__q______
r
RESOLUTION 98- 167
'^
A RESOLUTION ESTABLISHING PROCEDURES FOR
PRESENTATIONS AND PUBLIC COMMENT BEFORE
THE BOARD OF COUNTY COMMISSIONERS AND
THE COLLIER COUNTY PLANNING COMMISSION.
WHEREAS, the Collier County Board of Commissioners (Board), as the duly
elected governing body for Collier County,holds regularly scheduled public hearings to
discuss, review and act upon items of concern to and affecting the residents of Collier
County;and
WHEREAS, the Collier County Planning Commission (CCPC), serving as the
local planning agency and the land development regulation commission as required by
F.S. §§ 163.3174 and 163.3194, holds regularly scheduled public hearings to discuss,
review, act upon and make recommendations to the Board relative to items of concern to
and affecting the residents of Collier County;and
' ~ WHEREAS, included in these items may be advertised public hearings of a quasi-
judicial or legislative nature;and
WHEREAS, the public may wish to comment on these items scheduled for
consideration before the Board or the CCPC;and
WHEREAS, in order to maintain, equity, decorum and order at these regularly
scheduled public hearings, it is necessary to establish standard procedures for
presentations and public comment before the Board and the CCPC;and
WHEREAS, the Board has prepared these rules in an attempt to encourage public
participation during advertised public hearings, including quasi-judicial hearings, in a
manner consistent with the requirements of law.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY,FLORIDA that:
The Board of County Comelissioners & latea.that- the proceduresi-fit..forth, --
attached hereto, and incorporated by reference herein•a,1 Exhibit'A, '1ablfe :to the
s app AGEWtJ
ICkIF
w two.
OCT 24 2000
' t eg. Jt
Board and the Collier County Planning Commission as shad in said Exhibit,are fair and
reasonable,sod are hereby adopted 0
BE IT FURTHER RESOLVED that this Resolution relating to procedures for
Board and CCPC presentations and public comment be seconded in the minutes of this
Board.
This Resolution adopted after motion,second and majority vote favoring same.
Done this /9 day of 1998
ATTEST BOARD OFCC L NTY COMMISSIONERS
•.:-•Dwight E.Brock,Clerk COLLIER COUNTY,FLORIDA
. .; • e ,EkaL
Barbara B.Berry, Chairman
"'Apprm•
ved as to form and legal
sufficiency;
9144
David C.Weigel,Co Attorney
I
.
- • R _ . AGENDA I
(V0.
A b,+- ti'a OCT 2 4 2000
2
lg. 1//
Exhibit "A"
r1 Procedures for Presentations before the Collier County' Board of
Commissioners and as Applicable to the Collier County Planning
Commission
A. Public Comment on General Topics: Members of the public may register to speak
on general topics under the Public Comment portion of the Board of County
Commissioner's (Board) agenda. The number of speakers permitted to register
under public comment on any given agenda shall be limited to a maximum of
five, unless the chairman recognizes additional speakers.
I. Speaker Registration: Individuals wishing to speak to the Board under public
comment at any regularly scheduled meeting of the Board of County
Commissioners shall register to speak in writing on the forran provided by the
County prior to the public comment portion of the agenda being called by the
Chairman.
II. Time Limits:
a) Public Comment:
1. Maximum 5 minutes per speaker.
B. Public Petitions: Public Petitions are limited to a single speaker. In general, the
Board will not take action on public petition items on the day the petition is
presented, but may direct staff to take action, or bring back the item to the Board
at a future date for consideration. The County Administrator may defer scheduling
- a public petition for a reasonable period of time in order to allow sufficient time
for staff to review the content and thus prepare for questions from the Board.
I. Registration: Individuals wishing to make a public petition' to the Board of
County Commissioners shall present such a request in writing to the County
Administrator a minimum of 13 days prior to the Board meeting date on which
the public petition is requested to be heard. The written request shall include the
name(s) and address(es) of all petitioners, including a primary contact name,
address and telephone number,and shall state the nature of the petition,including
any exhibits and/or back up material which may be pertinent to the petition.
II. Time Limits:Maximum 10 minutes per speaker.
C. Advertised Public Hearings: For procedural purposes, advertised public hearings
fall into.two _categories : those which are quasi-judicial in nature; and other types
- of advertised public bear•ings, including those which,are legislative in nature. -
L Ouasi-JudicialJublic Hearinmg: r. _
AGENDA ITEM
X 1^i 61+-"A OCT 2 t 2000
1
4
a) Purpose and Intent: The_$oard has prepared these rules nn an attempt to •
encourage public participation during quasi-judicial hearirsgs in a manner
consistent with the requirements of law. As part of that efc rt and within the
confines of the law, the Board intends its hearings to bee informal while
recognizing the need for certain structure to maintain orderly hearings.
Notwithstanding the procedures established by resolution,the'Board may modify
these procedures to effectuate the effective presentation of evidence.
b) Applicability of these Procedures:
(1) Ouasi-Judicial Proceedings. These procedures apply too all quasi-judicial
proceedings heard by the Board and the CCPC regardl ess of the capacity
in which the Board is sitting. Quasi-Judicial acttions concern the
implementation of policy, which has already been set, and affording the
' Board, and-in some instances the CCPC, limited discretion in deciding
whether to approve or deny a land use permit.Thecae include land use
actions which have an impact on a limited number of persons or property
• owners on identifiable parties and interests, wher-e the decision is
contingent on a fact or facts arrived at from distinct alternatives
presented at a hearing. Examples of quasi-judicial proceedings include
but are not limited to: site specific rezonings(provided they involve
policy implementation); development of regionil impact hearings;
conditional use permits; variances; boat dock extension petitions; and
administrative appeals.
(2) Legislative Proceedings.Utilization of these procedures by the Board or
the CCPC when sitting in a legislative capacity domes not change the
character of the legislative proceeding nor does it co-nfer any additional
rights or remedies upon any person or party.
C) Pre-Hearing Submittals:
(1) Application. An applicant (as defined in the Co Hier County Land
Development Code) shall make application as provided in the procedures
established for the individual decision being requestee3.
(2) Staff/Agency Recommendation. To the extent tlxat the applicable
procedure requires a staff review and written recamrnmendation to be
presented to the Board, such written recommendation shall be completed
and available for public inspection no later than ten calendar days prior to
the hearing before the Board.
(3) Written Presentation.No later than one week pricy to- the scheduled public
hearing before the Board, any applicant, proponaat, or opponent may
submit any written arguments, evidence, explannatiaons, studies, reports,
petitions mother documentation to staff for intendedi consideration by the
. Board„in support of or in.opposition to the applieration. In order towbc;
k eluded in a Board or CCPC Agenda packet,anter written arguments,
evidence, explanation$4udies, reports, petition or other documentatia
�` must be submitted-toL the appropriate staff no later tbran three w pcdg1DA I
" the Cehednierl f1PA.,, - 1,eff, 1sry l• A
x tiI. 614-1W :t fog. -:q. .--, .F. . OCT 2 4 2000
2
a 1?
submissions, not-including pictorial displays (maps,graphs and the like)
e-N must be on 8-1/2 x 11-inch paper. No written materials will be accepted
by the Board at its hearing unless,at a oard's a on, accep ce is
necessary to decide the issue. Written comments submi s be
considered and entered into the record of the meeting in accordance with •
subsection C.I.dx4)below.
d)._ public Hearings before the Board or the CCPC: _
1) General. It is the expectation that the hearing will be informal. All
members of the public who address the Board or the CCPC shall utilize
the speaker's podium to allow their comments to- be recorded. Each
speaker shall state his or her name and address for the record.
Additionally, speakers shall indicate whether they arc speaking on behalf
of themselves or others.
(a) Time Limitation Guidelines. It is expected that presentations will
be organized and efficiently presented. As a guideline to
presentations, in addition to the written comments submitted as
part of the preliminary record, it is expected that persons of the
following status will prepare their discussions and comments to
be completed within the prescribed time limits:
• X 1. Staff shall be responsible for presenting the case on
• behalf' of Collier county and shall limit their
presentations to twenty(20)minutes.
X 2. The applicant shall present his or her entire case in twenty
(20)minutes.
3. Expert witnesses shall be limited to ten (10) minutes
each.
)( 4. Persons who have been authorized to represent an
organization with five (5)or more members ora group of
five(5) or more persons should limit their presentation to
ten (10) minutes. It is expected that others in the
organization or group waive their tinge.
5. All other persons may speak fora maximum of five (5)
minutes each.
6: •No speaker may give his or her time to any other speaker.
At the discretion of the Chairman, the time aflc wed fog
any speaker may be ex ded.
(b) Registration'of Speakers.Persons who desire to speak on item
shall, prior to the itetn being called to be heard by the Chairman,
�„1 {,register with the-County Administrator on _.the forms provided.
r Five (5) or more persons deemed by the board to beeseastECA t
TEM
(x kt t':4h OCT` 2 4 200
3
at /6
proponents or opponents on any item may berms uested to select a
_-_- - —spokesperson
(2) Order and Subject of Appearance: To the extent possible, the following
shall be the order of the proceeding:
(a) Preliminary Statement. The Chairman shall -read a preliminary
statement once at the beginning of the quasi-judicial hearing
- portion of the agenda outlining the procure, which shall be
followed.
(b) Sworn Testimony. The applicant, stag and all witnesses
requesting to speak shall be collectively sworn_
Agreement with Staff's Recommendation. If the applicant or
agent of the applicant agrees with staffs temcommendation and
wishes to waive his or her right to present additional evidence,
and if no commissioner or anyone from die audience wishes to
speak for or against the quasi-judicial agenda item, the Board may
vote on the item based upon staffs presentation and the materials
in the agenda back-up.
(d) Initial Presentation by Staff. County staff small make the initial
presentation to the Board regarding any item sunder consideration.
After completion of the staff pjesentation,ti-le Board may make 014
inquiries of staff at this time. An applicant car appellant may ask
questions of, or seek clarification from,staffr' by request through
the Chairman at the time that party makes its initial presentation
to the Board.
X (e) Applicant's Presentation.After staff presentation, the applicant(s)
shall be allowed to make a presentation to the Board based on the
time limitation guidelines outlined in the preceding subsection (d)
(1) (a), above. During and after the applxaaats' presentation, the
Board shall have an opportunity to comment or ask questions of
or seek clarification from the applicant The Board may also
allow staff to comment, ask questions or seek clarification from
the applicant(s)at this time.
X (f) Speakers. After Board and staff inquiry of thae applicant, speakers
shall be allowed to speak based on the time limitation guidelines
outlined in the preceding subsection(d)(1)(aa), above.During and
after a speaker's presentation,the Board shall have an opportunity
to comment or ask questions of or seek clarification from such
speaker. The Board may also allow stab to comment, ask
questions of or seek clarification from spealcmrss.
(g) Staff Response and Summary. The staff' .shall be allowed an
opportunity for.response to the. preseniataosas by the applicant,
' proponents and opponents and a =maw with any A
position after consideration of relevantsnMi•c comment. Propci tie)
•
Ikks 611-11A 4 OCT 2 4 2000
-and opponents who believe that the staff response includes errors of
• fact or law may ask for and may be allowed an opportunity to point
out such errors of fact or law.
(h) Applicant's Rebuttal Presentation.
1. Applicant's rebuttal shall be allowed only on items where
• there is an applicant other than the Board or Board staff.
After staff response, the applicant shall be allowed an
opportunity for rebuttal Rebuttal shall be limited to five
(5) minutes unless otherwise set by the Board. Rebuttal
shall only address previous comments.
2. Staff, who believe that the rebuttal presentation includes
an error of fact or law, may ask for and may be allowed
an opportunity to point out such error of fact or law.
(i) Board and Staff Incquirv. After all presentations have been made
as outlined above, the Board `shall have a final opportunity to
comment or ask questions. The Board may allow staff to respond
to comments previously made at this time.
(j) Limit on Presentations. No person who has made a presentation
for or against an item at a given meeting shall be allowed to make
' - additional comments,unless requested to do so by the Board.
(k) Closing of Public Comment In those matters on which public
comment is heard by the Board, the Chairman shall close the
} public comment portion of the meeting (on that item) upon the
conclusion of the last speaker's comments or, in the Board's
discretion, if no new relevant information is being presented_ No
additional public comments shall be allowed, except in specific
response to questions by members of the Board.
(3) Miscellaneous Items:
(a) Continuin a Record /Speakers Oualificatioos. The Clerk to the
Board("Clerk") shall maintain a file with the most recent copies
of resumes previously filed with the Clerk by county staff
presenters. All other persons testifying on issues requiring
educational, occupational and other experience who wish tcs be •
- qualified as experts shall subniit their qualifications in written
• form for the Board's approval to speak as expert witnesses.
(b) Organizational or Group Speakers. Prior tai-presenting his/her
case, any person representing an organization or other persons
• shall indicate, in writisig, the orgagiratioa' .or group::beishe
represents and how he/she received authorization to speak on
_ - is_:f of suck organization or group gf perso The Board may - ..
•
make further inquiry into the represented authority suchkQeti7EM
if neces.5a No- /0
int ;g '' S OCT 2 4 2000
pa_ -/L
(c) Restrictions on Testimony or Presentti•on of Evidence. 011/
Notwithstanding any provisions herein, any Board member may
interrupt any presentation that contains matters which need not be
considered in deciding the matter then before the Board for
consideration. At any Board proceeding,the Chairman, unless
overruled by majority of the Board members present,may restrict
or terminate presentations which in the chairman's judgment are
frivolous, unduly repetitive or out of order.
(d) Public Officials. Notwithstanding other p- visions hereof, the
Board may allow any elected or appointed public official, or
representative thereof, to appear and main presentations at any
time with regard to matters under consideratiox.
0 Continued Public Hearings.In any matterwhe=re it is known that a
scheduled public hearing will be continued to a future date
certain, the staff report may be abbreviated and public comment
may be limited to those persons who state bait they believe they
can not be available to speak on the date to which the public
hearing is being continued. Such personas may make their
comments at the current meeting; provided, however, that upon
making their comments, such.persons shall waive the right to
repeat or make substantially j the same presentation at any
subsequent meeting on the same subject This waiver shall not ‘11‘
preclude such persons from making different presentations based
on new information or from offering response to other persons'
presentation,if otherwise allowable,at any subsequent meeting.
(4) The Record
(a) Automatically Included in the Record:The following documents
shall automatically be included in the record of the hearing before
the Board:
•
(1) The record from any preliminary Bearing, the agenda
packet, the staff report, and the tem-script of the hearing
before the Board;
(2) Written comments and documentspr eviously entered into.
the record at a prior Board meting on the particular
•
matter.
(b) Items Which Shall Be Placed in the Record. Any additional
documents, exhibits,diagrams,petitions,ktners or other materials
presented in support q or in opposition_ to,_ an item to be
t considered by the Board shall be entered mto the record/AS loitg' ' .
- as it'ma's received by.the Board's Clerk._ttaie applicable -Collier
- - - -• C8unity department seven(7)days pr ortoda* date d me Ikignag47DA l'�"j
N -
o. �//
Zink, L.4--‘IA 'I 6 z: �.. ,t :x OCT 2 4 2000
Pg.-I. �f
' /'N (c) . Additional Evidence. Except pursuant to subsection C)(3)above,
Written Presentation, any additional written or documentary
evidence filed within seven (7) days of the date of the hearing
shall not become part of the record.
(d) Custodian. The Clerk shall be the official custodian of the regord. #
(e) Exhibits. Unless an oversized exhibit is absolutely essential,
documentary paper or photographic exhibits should not exd 24
inches by 36 inches and, if mounted on a backboard, s - 1 be
removable therefrom. All documentary evidence should be
capable of being folded and filed. .. :•
ri. Other Public Hearings: The following rules apply to advertised public heafizigs
other than those which are quasi-judicial in nature, including those advertised M
public hearings which are legislative in nature.
• a) Pre-Hearing Submittals: ,�
(1) Application. An applicant (as defined in the Collier County Land
Development Code) shall make application as provided in the procedures
established for the individual decision being requested. •
i
(2) Staff/Agencv Recommendation. To the extent that the applicable
r-\ procedure requires a staff review and; written recommendation to be ,:
presented to the Board, that written recommendation shall be completed
and available for public inspection no later than tea calendar days prior
to the hearing before the Board.
(3) Written Presentation.No later than one week prior to the scheduled public
hearing before the .Board, any applicant, proponent, or opponent may
submit, in support of or in opposition to the issue which is the subject of
the advertised public hearing, any written arguments, evidence,
explanations,studies,reports,petitions or other documentation to staff for .
• intended consideration by the Board. All written submission* not fi
including pictorial displays(maps,graphs and the lase) must be on 8`=1/2 x
11-inch paper.
e
b) Public Hearing: -- 1-
(L) General. All members,of the public who address tie Board shall utilize
the speaker's.podium to allow their comments to be recorded, ani shall
identify themselves by name and local.addresses, if applicable. Further,
any speaker speaking on behalf of an organization or group of individuals . -
(exceeding five) shall indicate such and shall cite the source o . such
authority whether by request,petition,vote,or other-wise.
• -(a) Time Limitation Guidelines: It is expected- that presentations will
or-- - ;. be organized.4nd efficiently presented= As a guideline 40, -
\ presentations, in addition to.the written comments subrnf
rpr1 Or $hr rrFlir:-^^' .o,-v.rr' f....,,..'•e•." Or't f,e -7*' '0,fO .
ii""£ -. 4" OCT 2 4 2000
Pa- ./e
following status will prepare their discussions and comments to011/
be completed within the prescribed time limits:
1. Staff shall be responsible for summa-izing the item for
the Board and shall limit such prescnta*tion to a maximum
of twenty(20)minutes.
2. For advertised public hearing items (other than thoSe
which are quasi-judicial in nature), where there is an
applicant other than the Board of Comity Commissioners
or staff, following the staff summacy of the item the
applicant will have an opportunity to make a maximum
(1 O)minute presentation. •
•
•
3. Persons who have been authoriuuad to represent an
organization with five(5) or mon members or a group of
five (5) or more persons should limit'their presentation to
ten (10) minutes. It is expected that others in the
organization or group waive their time.
4. All other persons may sPeak for a is maximum of five (5)
minutes each.
5. No speaker may give his or her time Ito any other speaker.
At the discretion of the Chairman,the time allowed for
any speaker may be extended
(b) Speaker Registration. Persons, other than:miff and the applicant
(where applicable), wishing to speak on san advertised public
hearing item shall,prior to the item being h=ard, register with the
County Administrator on the forms provided. Five (5) or more
persons deemed by the Board to be associated together or
otherwise represent a common point of view, as proponents or
opponents on any item may be requested to s=elect a spokesperson.
(2) Miscellaneous Items:
(a) Organizational or Group Speakers. Moor to making his/her
comments, any person representing an organization or other
persons shall indicate who he/she represents and how he/she
received authorization to speak on behalf off such organization or
group of persons. The Board may make fiurther inquiry into the
represented authority of such person if necessary.
(b) Restrictions on Comments Deemed Not 'Germane to the Item,
Notwithstanding any provisions herein,am Board member may
. • interrupt and/or stop any presentation.ibat-discusses matters pot
need not be considered in deciding the nanatter then before the
. Board for_consideratign. At any Board proceeding,the Chairmse,
unless overruled by majority of the Board members
' GEN AI
No, vk,
OCT 2 q 2000
•8
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•
•
•
restrict or _.teerminate presentations whicbin the chairman's
judgment are frivolous,unduly repetitive or out of order.
(c) Public Officials. Notwithstanding other provisions hereof, the .
Board may allow any elected or appointed public official or
representative thereof, to appear and make presentations at any
time with regard to matters under considerations.
(d) Continued Public Hearings.In any matter where it is known that a
scheduled public hearing will be continued to a future date
certain, the staff report may be abbreviated and public comment
may be limited to those persons who state that.they believe they
cannot be available to speak on the date to which the public
hearing is being continued. Such persons may make their
comments at the current meeting; provided, however, that upon
making their comments, such persons shall waive the right to
repeat or make substantially the same presentation at any
subsequent meeting on the same subject.
D. Other Agenda Items Before the Board: In addition to public hearing, public
comment and public petition items, with the approval of the Board, members of
the public may speak on other Board agenda items.
•
I. Registration: Persons wishing to speak on agenda items other than advertised
public hearing,items,public comment on general topics and public petition items,
shall register to speak on the form provided by the County prior to the item being
called by the Chairman to be heard.
II Time Limits: Where the Board has requested or otherwise authorized public
input on agenda items other than public hearing, public comment on general
topic, or public petitions items, speakers will be limited to a maximum "al' 5
minutes.
•
•
•
•
AGENDA ITEM
)( 4-"A"
OCT 2 4 2000
9
_ 4q—
Ilk
LOCAL AD HEARINGS:
A VIABLE RESPONSE TO SNYDER
Timothy Jones
Fort Myers
•
Initially there was a great deal of wailing and gnashing of teeth overttie perceived
In y has abated
burdens that the Snyder decision created for local government. This out-cry One such
life after Snyder-"
somewhat in favor of a search for practical.solutions tter, ,has been used actively in Lee
so-
lution, local administrative hearings for am will not work for every localgovernment, but
County for almost six years. This program
certain elements of the program may be attractive enough to adapt toir d Somelineeds
ee County's experience and, hopefully,provid 1
This outline.:will describetf local governments.
that can be used by
. -R• .� , . :,,
I.
epOPTION public)andtlhe were
A. Late in 1987 the Board of CountyCommissioners
ttraditional systemOforCev'ewing and deciding
frustrated by the problems inherent in t
requests for reionings, variances, special exceptions and appea�o#administrative staff
tine staff
decisions. The county was riding the crest of a strong wave of sustained high growth.
This growth resulted in a large volume of zoning cases industrial develop trstned to keep up
with the demand for residential, commercial and
of
on-
B. At that time, the review process for variances, special exceptions and appeals
administrative decisions provided for a Board of Zoning Adjustments(BZA) made up of
a
citizens a pointed by the BOCC. The BZA held public CourtReon ng Bequests we e
red final deci-
sions. Appeals of BZA decisions were directly to Circuit
Zoni
ornmission
reviewed b another appointed citizen board, the Planning& Zonablic hearings and made nonbinding igCo to the BOCC.
ions
The members of (PZC).
The PZC held ofpthis board also sa as the Local Planning Agency(I.P.A).
C. The BZA and the PZC met once a month. The BOCC met twice a month to con-
siderrezonin requests. Due to the volume of cases and fewrestrictions s nowt unusualforthem
9 applicant and the public,or quality of-input received from the app'
s to last from 9:30 a.m. until late in the evening and, too often , into the early
meetings Except for the Clerk's audio recording of al IBOCC meetings.
morning of the next day. Speakers were not
no official record was kept unless a participant allowed. ired a However, a speaker voiced a question,
sworn and cross-examination was not party or staff member-
the board would try to obtain an answer from the appropriate
D. Decisions of the BZA were often contradictory and never predictable,evell`when. '
identical facts presented.in different cases onthe%ame day. The
based on virtually AGENDA 1
No.
* OCT 2 4 2000
Ilk . s 4
C. SIGNIF I CANT FEATURES:
1. The Hearing Examiner reports directly to, and serves at the pleasure of, the
BOCC. t
2. The Hearing Examiner must be a licensed attorney with significant direct e
perience in land use law, but is not required to be a member of the Florida Bar.
3. The Hearing Examiner may not maintain a private law practice and may only •
engage in any outside employment after approval by the BOCC. :r-
4. Ex parte communication with the Hearing Examiner is prohibited. In Septem-
ber of 1992, after the decisions in Jennings v. Dade County, 589 So.2d 1337 (3d DCA
1991), rev. denied, 598 So. 2d 75 (Fla. 1992), and Snyder v. Brevard County, 627 So r
2d 469 (Fla. 1993), county regulations were amended to prohibit ex parte communica-
tion with county commissioners. County administrative staff and county attorney staff f
are also forbidden to discuss substantive issues of pending cases with commissioners ,
but not with the public or applicants.
5. Intentional violation of the prohibition against ex parte communication is a
criminal act, punishable by a fine not to exceed $500; or imprisonment for a term not ex-
ceeding 60 days; or both.
1 '-•
6. All cases receive a specific date and time for the hearing held by the Hearing
Examiner. Rezoning cases are heard every Tuesday; variances, special exceptions and
appeals of administrative staff decisions are heard every Thursday;and Fridays are re-
served for continued hearings. The BOCC holds zoning also scheduled on Wednesday
s on the first and third '
Monday of every month and non-controversial cases
mornings before the regular weekly BOCC meeting. .
7. Hearings are informal proceedings - rules of evidence do not apply and there
is no provision for sworn testimony or cross examination of witnesses.
8. me county pays for the Official Court Reporter's office to record all hearings
conducted by the Hearing Examiner. Hearings are not routinely transcribed but tran-
scripts may be obtained by any interested person at their own expense- i
9. The Hearing Examiner must provide a written decision or recommendation •
that includes findings of fact, conclusions of law and a written summary of the testimony
and other evidence submitted for the record. The re on orecommendation latins provide cific criteria on
are provided which decisions must be based. Copies of the de
to all parties of record.
"parties of record'' may part'icipatelh the final hearing. held by the ;..-: ... .
f 10.OnIYP
of record oneVA - : •_must participate at the hearing exanTi- ,
BOCC. M order to become a party ' •
AGENDA
'
I% I #46-__ge.).,7
f X►.t 6.0j- B OCT 2 4 2000
pa- t
4. Controlling Speakers
The Hearing Examiner must maintain firm controa ! in
goal is for all parties to
the hearing
from degenerating into name-calling and other irrelenkles
leave the hearing with the feeling that they have been treated fairly and that their opin-
ions and statements were seriously received and will be considered.
Keeping speakers focused at the BOCC hearing ' more difficult
be-
cause of the restrictions on what may be discussed. Most a difficult
un
der-
standunderstanding the restrictions and many will ignore n active role nes process or the
them. The Chairman of the BOCC must take
integrity of the hearing will suffer.
•
5. What is the role of the County Attorney?
Assistant county attorneys from the Land Use Sectiono� of thefor County
staff Atpot r—
nney's office attend all hearing examiner hearings, not as adv
but to provide assistance to the staff and the Hearing state law are needed.r when These attorneys also
legal interpreta-
tions or opinions of county regulations or
work closely with the staff prior to the hearings in ffective)order to help present matte rsl to the Hear-
issues and
to help the staff understand how to properly and Y
ing Examiner.
At BOCC hearings, the County Attorney answers legal questions for commis-
0114
sioners and assists the Chairman in following the proper procedures and keeping speak-
ers on the right track.
•
6. Who, if anyone, represents the Hearing Examiner in appeals?
Unfortunately, the examiners are in a similar position to trial judges. They are
not directly represented. If there is an appeal, the hearing examiners decision is treated
as it it is a decision of the BOCC and the County Attorney fends the decision. If ges t,then hopefully the
decision is favorable to an applicant and a party hallen
applicant (being the party
with the most interest in the case) will hire an attorney to vig-
orously defend the decision.
7. Ex parte communications
Many ways of handling this problem have been proposed by other
writersa method
even by the Legislature. However, in this writer's opinion, the only tru a calls eis to forbid all such communication. This will require screening of phone
ers s and o
corre-
spondence by BOCC and hearing examiner staffs. Appropriate communications
e
developed for advising persons who innocentlersttempt such and and acce�the necessity oft orders to
prevent future attempts. Most people will and
•
restriction, but a few will not.
�x c,t. w . •t— 13 OCT 2 4 2000
• Pli•_GC----
Ilk
•
n tion will be: who, if anyone, is willing to incur the cost of this litigation?
Ill. ETHICAL ISSU
A. Non-lawyers representing applicants and other interested parties_
Lee County's program is designed to provide access to the applicant and the
public without the necessity of retaining an attorney. Most issues are planning matters
and the County Attorney can provide answers to most legal questions. There is a long
tradition of citizen handling of zoning matters. However, legal issues do arise and par-
ticipants without legal counsel should be advised to seek counsel whenever appropriate_ -
B. Assisting the unrepresented applicant.
Zoning hearings are not true adversary proceedings. The county commissioners
want the staff to help applicants negotiate what is often a confusing path through the
regulations to reach their goals. So long as the application is consistent with the com-
prehensive plan and land development code, there is no reason not to provide as much
help as possible. However, one must still be careful not to give legal advice or provide
information that might be adverse to the interests of the county.
C. Who does the County Attorney represent?
Most citizens who oppose a zoning request assume that the County Attorney
represents them and should help them fight the applicant. However,in most counties,
the County Attorney's client is the Board of County Commissioners. This can be a diffi—
cult concept to explain to an irate citizen.
I.V. A CODE ENFORCEMENT HEARING EXAMINER PROGRAM
A. Authorized by Chapter 162 Florida Statutes as an alternative to an appointed
Code Enforcement Board.
B. Efficient, predictable,and sustainable decisions.
C. Hearings similar to Traffic Court; non-criminal infractions;witnesses are sworn
and cross examination is allowed.
D. County Attorney acts as prosecutor.
E. One of many potential additional uses for the hearing examiner program.
V. CONCLU.SJ.Q!
The Lee County Cothmission is very happy with the hearing examirner. program. It ., : •
.has significantly reduced the length of final hearings required by the BOCC and the time
• _ • 4WEADA ITEM
. 1
No.
` OCT 2 4 2000
Pa- M
0
APPENDIX A
EXCERPTS FROM THE LEE COUNTY LAND DEVELOPMENT CODE
AND
APPLICABLE LEE COUNTY ADMINISTRATIVE CODES
} - % • AGENDA OEM
t ft
t '3 OCT 2 4 2000
Pg.
r
1
i
APPENDIX B
LEE COUNTY HEARING EXAMINER PROGRAM
BUDGET &CASE INFORMATION
I. BUDGET:
Fiscal Year: 1988-89 1990-91' 1992-93 1993-94 _ 1994-95
(10/1-9/30)
Salary/Fringe: $ 86,355 $238,289 $288,379 $285,191 $305,966
Operating: $114.283 5119.851 $ 94.424 5152.675 $145.344
$200,638 $358,140* $382,803 $437,866 $451,310
1
(3 Staff) (5 Staff)' (6 Staff) (projected)
' Reflects addition of one Hearing Examiner position and one secretarial position to
accommodate creation of Code Enforcement Hearing Examiner Program.
0 (..-N II. ZONING CASES:
Year $Z 1988-89 1992-93 1993-94
Cases: 349 315 • 278 241
III. CODE ENFORCEMENT CASES: Annual Average (since 1990): 720
This represents only 60% of cases noticed for hearing. The rest of the cases are
either withdrawn or abated prior to hearing.
IV. AVERAGE -FIfNAL HEARING TO ISSUANCE OF DECISION,12 days
V. AVERAGE -FINAL HEARING TO ISSUANCE OF RECOMMENDATION: .14.2 days
. . , ,;
•
Dr. r - . . c • . - AGE-NDA ITEM --
` OCT 2 4 2000
(Kki Lid I .B //
Pg.- .P6
MEMORANDUM •
FROM THE
W4V OFFICE OF COUNTY ATTORNEY
DATE: June 9, 2000
To: Board of County Commissioners FROM:
Timothy Jon- -
Assistant.Cou ty' Attorney
RE: Ex Parte Communications
Commissioner Judah asked me to provide an explanation of the reasons why Lee County
has adopted regulations prohibiting ex parte communication with Commissioners regarding zoning
matters. The principal reason for the prohibition is the County's duty to provide for fundamental
fairness in the zoning process.
This duty is placed on local governments by the U.S. Constitiution and the Florida
Constitution. Florida courts have held that the act of rezoning propertyisa quasi-judicial decision 04
making process. Both constitutions require that the government providedue process of law to all
persons who participate in the quasi-judicial decision making process. Simjly put,due process of
law means fundamental fairness in all aspects of decision making. The courts have held that this
includes notice and an opportunity to be heard before an unbiased decision' maker. Florida courts
have further held that procedural due process requires sworn testimony, cross examination of
witnesses and a decision based on competent, substantial evidence.
The Florida Supreme Court has specifically held that ex partecornmunications with the
decision maker are presumptively prejudicial. This.means a communication with the decision
maker outside the public forum creates a presumption that the decision maker will be biased at the
time a final decision must be made. Such bias taints the entire process and is fundamentally unfair
to the other participants. Evidence of ex parte communication will inevll L ly result in the courts
overturning the decision at issue unless it be proven that the ex partecormmunicatiot did not, in
fact, bias the decision maker. Allowing for unfettered contact with electedorficials outside a public
forum on matters pertaining to pending rezonings has the very real potential of resulting in
numerous lawsuits alleging denial of due process and the inevitable public impression that the
zoning process is inherently unfair and possibly corrupt.
The prohibition of ex parte communications enhances the opportunity for all interested
persons to have a full and fair chance to provide input to the decision mal-cer by giving everyone
an equal opportunity to present theirviews in a public forum. If all coritactwiith the dediiion maker
on a pending rezoning is limited to a public forum, no one will have to spear late about agreements
made behind closed doors. The prohibition against ex parte com-muhicati-ons d ,
Ma.jr,g1h2A‘d°
S:W TJITJMEMOEEx parte Communications2-BOCC.wpa — OCT 2 4 2000
t. I.
' Board of County Commissioners
p+rne 9,2000
,ge 2
Re: Ex Parte Communications
a citizen from informin g the Commissioners of their concerns and information relevant to the
proposal. The County regulations establish a framework under which this information may be
presented to the Commission in a manner consistent with the constitutional mandates to provide
due process of law to all participants in the zoning process. No one is excluded from participating
or voicing their concerns under the County regulations. If the Commissioners were to en gage in
private meetings with interested persons, be they developers or private citizens, these in eetings
will not meet the thresh old requirement for sworn testimony and cross examination of witnesses.
Based on Florida case law, the courts have held that this alone corrupts the process and denies
fundamental fairness to all participants.
To summarize, the County regulations do not deny the rights of citizens to speak with their
elected officials. The citizenry must address their elected officials in a public forum. The County's
prohibition against ex parte communication enhances and protects the rights of citizens with regard
to the zoning process because it applies to all participants equally. The goal is a level playing field
where all opinions, in favor and against, may be aired and debated in the sunshine.
Please feel free to contact me if you need further information on this subject.
TJ/amp
•
Distribution: Commissioner John E. Manning, District #1
Commissioner Douglas R. St. Cemy, District#2
Commissioner Ray Judah, District#3
Commissioner Andrew W. Coy, District #4
Commissioner John E. Albion, District #5
James G. Yaeger, County Attorney
•
•
AGENCPAJTEM
No. ,e-2,9).A
OCT 2 4 2000
S:\L.UITJITJMEMOAEx parte Communications2-BOCC.wpd
I/ P
L�1Cl,tC,Lfi a
attorney's fees and costs, may be recovered by the District in a civil
action.
SECTION ELEVEN: Expansion; Contraction; Merger; Dissolution.
Only the Board of County Commissioners of Collier County, by non-emergency
ordinance, can contract or expand the boundaries and jurisdiction of this Di strict,merge it
with any other governmental entity under control of the County or and dissolve the
District. In no event shall the District merge any other unit of government without the
prior consent of the Board of County Commissioners of Collier County. If this District is
dissolved and its charter revoked-by non-emergency ordinance by the Board of County
Commissioners of Collier County which is the unilateral right of the Board of County
Commissioners of Collier County, such action dissolving the District shall occur only at
such time as (a) legal and equitable rights, powers and interests of each and every
landholder are maintained and inviolate and are expected reasonably to remain inviolate
so long as they exist in law and equity and (b) a dissolution plan is noticed and adopted
by the Board and incorporation in the dissolution ordinance. Dissolution of the District
shall transfer automatically to Collier County, in the Board of County Commissioners,
title to all property leased or signed to the District along with all other property and
interest in property otherwise acquired by the District. Collier County shall assume all
indebtedness of the District unless provided otherwise in the dissolution plan adopted by
the Board of County Commissioners of Collier County attached to it and incorporated in
the ordinance of dissolution.
SECTION TWELVE: Conflict and Severability.
In the event that this ordinance conflicts with any other ordinance of Collier
County, the more restrictive ordinance shall apply except as provided specifically herein,
or as provided specifically in the administrative code with regard to the Collier County
purchasing policy and or the Collier County human resources policies and procedures. If
any section,phrase, sentence or portion of this Ordinance is for any reason held invalid or
Unconstitutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and such holdings shall not affect the
validity of the remaining portions thereof. -
SECTION THIRTEEN: Effective Date. •
- This Ordinance shall become effective upon.receipt of acknowledgment from the
Secretary of State that this Ordinance has been filed with the Secretary of State of
Florida. AGEND ITEM
No.
OCT �
2 4 2000
P Q ��
Passed and adopted duly by the Board of County Commissioners of Collier
County, Florida, this day of 2000.
ATTEST BOARD OF COUNTY •
COMMISSIONERS
Collier County,Florida
, CLERK
By:
Chairman
Approved as to form and
legal sufficiency:
David Weigel, Esquire
County Attorney
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
2000 by
Signature of Notary Public-State of Florida
Notary Stamp
Personally Known OR Produced Identification •
Type of Identification Produced
F:\USERS\ICFOLDEN\Pelican Bay.wpd
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