Agenda 03/12/2013 Item #12A 3/12/2013 12.A.
EXECUTIVE SUMMARY
Recommendation to authorize the County Attorney to advertise an ordinance for future
consideration which would provide for a Hearing Examiner.
OBJECTIVE: That the Board of County Commissioners (Board) authorizes the County
Attorney to advertize an ordinance for future consideration that would establish the position of
Collier County Hearing Examiner..
CONSIDERATIONS: The 1967 Collier County Special Act (Laws of Fla. ch. 67-1246, as
amended by Laws of Fla. ch. 2001-344), specifically authorizes the Board of County
Commissioners to implement a county hearing examiner program by county ordinance. More
specifically, County Land Development Code Sec. 8.02.01.0 provides that "In addition to any
authority granted to the Board of County Commissioners (BCC) by general or special law, the
Board of County Commissioners (BCC) shall have the following powers and duties: To
designate and appoint hearing officers to make decisions as the BCC may deem appropriate. "
At its meeting of February 12, 2013, the Board approved agenda item 10-F, which gave
the following direction:
"That the Board of County Commissioners direct the County Attorney to prepare an
ordinance for board approval providing for a county Hearing Officer who shall be empowered to
hear and rule on limited planning and zoning matters; that any decision of the Hearing Officer
may be appealed to the Board of County Commissioners; that it be further directed that county
staff develop a job description based on the legal definition of the newly created position, obtain
board approval for funding the position, and immediately advertise the position upon board
approval of the ordinance, all so that a Hearing Officer is hired and in place by April 15, 2013
with the intent of promoting administrative efficiency in rendering certain development related
decisions by the county."
In keeping with Board direction, the County Attorney, in consultation with both staff and
the Chairman of the Planning Commission, prepared the attached Ordinance. The Ordinance
creates the Office of Hearing Examiner, and gives the Hearing Examiner the following powers
and duties:
1. Appeals of Administrative Decisions or Interpretations.
2. Variances. The Hearing Examiner will hear and decide all requests for variances from
the terms of the regulations or restrictions of the zoning code and such other codes or ordinances
as may be assigned to him by the Board of County Commissioners.
3. Conditional Uses. The Hearing Examiner will hear and decide all requests for
conditional uses.
4. Boat Lift Canopies and Dock Facility Extensions. The Hearing Examiner shall hear all
petitions for a boat lift canopy and dock facility extensions as provided for in LDC Sections
5.03.06.G and H.
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5. Additional Duties. To the extent his schedule permits, the Hearing Examiner will
make his special knowledge and expertise available upon reasonable request of the Board of
County Commissioners, any individual Commissioner, the County Manager or the County
Attorney, provided that such requests do not in any way involve any matter that is pending, or is
likely to come before,the Hearing Examiner.
6. To the extent authorized by law, by Resolution of the Board of County
Commissioners, the Hearing Examiner may be assigned any and all other powers and duties that
have previously been granted to the Collier County Planning Commission or the Board of
Zoning Appeals, expressly excepting those powers reserved to the Collier County Planning
Commission as the local planning agency (LPA), and land development regulation commission
as required by F.S. §§ 163.3174 and 163.3194.
The Ordinance allows the Hearing Officer to recuse himself from any matter if there is a
conflict of interest or the matter is one of great public importance, and requires the Board to
adopt by Resolution into the Administrative Code a Rules of Procedure to be utilized by the
Hearing Examiner. Decisions of the Hearing Examiner can be appealed to the Board of County
Commissioners or the Board of Zoning Appeals, as the case may be. It is contemplated that this
shall be a compensated position.
It is the County Attorney's opinion that as structured, the Hearing Examiner process will
be found to be both efficient and citizen-friendly, and will be primarily used for routine matters.
FISCAL IMPACT: The purpose of this item is limited to the creation of the position of
Hearing Examiner. The issue of compensation to be paid to the Hearing Examiner will be
brought before the Board for consideration at a later date. The estimated cost to advertise the
proposed ordinance is $400.00.
LEGAL CONSIDERATIONS: The proposed ordinance was drafted by the County Attorney
and is legally sufficient. A majority vote is required for Board approval. —JAK
RECOMMENDATION: That the Board of County Commissioners authorizes the County
Attorney to advertise for future consideration the attached Ordinance which would provide for a
Collier County Hearing Examiner.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 12.12.A.
Item Summary: Recommendation to authorize the County Attorney to advertise an
ordinance for future consideration which would provide for a Hearing Examiner.
Meeting Date: 3/12/2013
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, CMO
3/6/2013 9:41:56 AM
Submitted by
Title: Executive Secretary to County Manager, CMO
Name: BrockMaryJo
3/6/2013 9:41:58 AM
Approved By
Name: OchsLeo
Title: County Manager
Date: 3/6/2013 11:49:54 AM
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ORDINANCE NO. 2013-
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA, PROVIDING FOR THE TITLE AND
CITATION TO THIS ORDINANCE; ESTABLISHING THE OFFICE OF
HEARING EXAMINER; ESTABLISHING THE METHOD AND
CONDITIONS FOR SELECTION, APPOINTMENT AND REMOVAL OF THE
HEARING EXAMINER; PROVIDE FOR THE CONDUCT OF MEETINGS,
REPORTS AND RECORDS; ESTABLISHING THE POWERS AND DUTIES
OF THE HEARING EXAMINER; PROVIDING FOR DECISIONS AND
APPEALS FROM DECISIONS OF THE HEARING EXAMINER; PROVIDING
FUNDING FOR THE OFFICE OF THE HEARING EXAMINER; PROVIDING
FOR STAFF FOR THE HEARING EXAMINER; PROVIDING FOR
CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE
CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Laws of Fla. ch. 67-1246, § 5, provides in relevant part that "The governing
bodies of municipalities and Collier County are hereby authorized to establish one or more
planning commissions for Collier County, to have jurisdiction respectively over certain
geographic areas of Collier County which shall be specifically described by the resolution or
other official action establishing the planning commissions, and appoint members thereto who
reside in the respective districts, and are electors therein. Planning commissions shall have not
less than five, nor more than ten members, and none of such members shall be in the pay of the
county or municipality or elected officer-holders of any of the jurisdictions served," but that
"Members of a planning commission may receive salary and such travel and other expenses
while on official business for the commission as are made available by the governing body for
these purposes; and
WHEREAS, Collier County Land Development Code Sec. 8.02.01.0 provides that "In
addition to any authority granted to the Board of County Commissioners (BCC) by general or
special law, the Board of County Commissioners (BCC) shall have the following powers and
duties: To designate and appoint hearing officers to make decisions as the BCC may deem
appropriate;"and
WHEREAS, Laws of Fla. ch. 2001-344, § 1(31), provides that "The method and
procedures for implementing a county hearing examiner program shall be as set forth by county
ordinance;" and
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WHEREAS, the Board of County Commissioners finds that it is in the public interest to
establish the Office of Hearing Examiner under the terms and conditions set forth herein, and
that it is in the further interest of the public to attract the most qualified people for this position,
that the Hearing Examiner receive compensation for the performance of his enumerated duties,
and that the Hearing Examiner may also simultaneously serve on the Collier County Planning
Commission and still receive appropriate compensation in that the powers and duties of the
Hearing Examiner are substantially equivalent to the powers and duties presently exercised by
the Collier County Planning Commission.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA,that:
SECTION ONE: Title and Citation.
This Ordinance shall be known and may be cited as the "Collier County Hearing
Examiner Ordinance."
SECTION TWO: Establishment of Office of Hearing Examiner.
The Office of Hearing Examiner is hereby established.
SECTION THREE: Method and conditions for selection, appointment and removal of
the Hearing Examiner.
(a) Recruitment for the position of Hearing Examiner shall be in such manner as may
be determined by the Board of County Commissioners.
(b) The Hearing Examiner shall be appointed by an affirmative vote of not less than
three members of the Board of County Commissioners and serve at the will and pleasure of the
Board of County Commissioners. The Board may appoint multiple Hearing Examiners.
Appointment shall be made by written contract negotiated with the Board of County
Commissioners, which contract shall set out the terms and conditions of employment,
compensation and removal, and may specify any additional powers and duties delegated or
assigned to the Hearing Examiner. Simultaneous service on the Collier County Planning
Commission shall not preclude appropriate compensation.
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(c) The Hearing Examiner need not be a resident of the County at the time of
appointment, but during the Hearing Examiner's tenure in office shall reside within the County.
(d) The position of the Hearing Examiner shall be deemed vacant if the incumbent is
removed, resigns, moves his residence from the County or is, by death, illness or other casualty,
unable to continue in office. In the case of vacancy or disability, the matter shall be heard by the
Collier County Planning Commission, the Board of County Commissioners or the Board of
Zoning Appeals, as the case may be, following the established procedures set forth in the Collier
County Land Development Code (hereinafter referred to as the "LDC"), until a successor has
been appointed by the Board of County Commissioners or the Hearing Examiner resumes the
duties of the position.
SECTION FOUR: Conduct of meetings, reports and records.
(a) Rules of Procedure. The Board of County Commissioners shall adopt the Rules
of Procedure for the conduct of all hearings before the Hearing Examiner. Such procedures
shall be made part of the Collier County Administrative Code, with all amendments, additions,
revisions, or modifications made by resolution of the Board of County Commissioners. Copies
of the Rules of Procedures shall be maintained on file in the office of the Zoning Director, and
published on-line for the benefit of the public.
(b) Reports of Decisions. After a public hearing is held, the Hearing Examiner will
make a written report of his decision in accordance with the Rules of Procedure, and provide a
copy of the report of decision to all parties of record, County staff, and the Board of County
Commissioners.
(c) Records. The Hearing Examiner will be provided with a court reporter for all
hearings in the same manner as provided for the Collier County Planning Commission. To assist
the Hearing Examiner in the conduct of all hearings, the County Manager shall assign a staff
person as Secretary to the Hearing Examiner. The Secretary shall keep indexed records of all
meetings, agendas, findings, determinations and reports of decision. Such records shall be public
records.
(e) Attendance at Hearings. The Hearing Examiner may request staff members with
personal knowledge of relevant facts to attend hearings and produce relevant documents.
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SECTION FIVE: Powers and Duties of the Hearing Examiner.
The Hearing Examiner shall have the following powers and duties:
1. Appeals of Administrative Decision or Interpretation. All type III appeals of
administrative decisions or interpretations, as set forth in LDC Sec. 10.04.04, shall be heard by
the Hearing Examiner. All appeals and staff response to such appeals must substantially
conform to the Rules of Procedure. In reaching his decision, the Hearing Examiner must
consider:
a. the criteria for the type of application being requested;
b. testimony from the applicant; and
c. testimony from any members of the public.
2. Variances. The Hearing Examiner will hear and decide all requests for variances
from the terms of the regulations or restrictions of the zoning code and such other codes or
ordinances as may be assigned to him by the Board of County Commissioners. In reaching his
decision, the Hearing Examiner must consider:
a. the criteria for the type of variance being requested, in particular those set
forth in LDC Sec. 9.04.03,
b. staff recommendations;
c. testimony from the applicant; and
d. testimony from the public.
Before granting any variance, the Hearing Examiner must make a finding with respect to
each of the criteria set forth in LDC Sec. 9.04.03, and with respect to sign variances, LDC Sec.
5.06.08. The Hearing Examiner has the same authority as the Board of Zoning Appeals to grant,
deny, or modify any request for a variance from the regulations or restrictions of this Code, or to
attach conditions and requirements necessary for the protection of the health, safety, comfort,
convenience and welfare of the general public. The conditions or requirements must be
reasonably related to the variance requested and conform to the requirements of the LDC.
3. Conditional Uses. The Hearing Examiner will hear and decide all requests for
conditional uses. In reaching his decision, the Hearing Examiner must consider:
a. the factors and criteria set forth in LDC Sec. 10.08.00.D;
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b. relevant matters set forth in an applicant's written petition;
c. testimony of any applicant or agent;
d. the recommendation of staff; and
e. testimony of the public.
As part of his decision, the Hearing Examiner must make the findings required by LDC
Sec. 10.08.00.D, and may place appropriate conditions and safeguards as set forth in LDC Sec.
10.08.00.E.
4. Boat Lift Canopies and Dock Facility Extensions. The Hearing Examiner shall
hear all petitions for a boat lift canopy and dock facility extensions as provided for in LDC
Sections 5.03.06.G and H.
5. Additional Duties. To the extent his schedule permits, the Hearing Examiner
will make his special knowledge and expertise available upon reasonable request of the Board of
County Commissioners, any individual Commissioner, the County Manager or the County
Attorney, provided that such requests do not in any way involve any matter that is pending, or is
likely to come before,the Hearing Examiner.
6. Recusal of Hearing Examiner. The Hearing Examiner may disqualify himself
from a particular case when he reasonably perceives that he has a real or perceived conflict of
interest, or that the case is one of great public interest or concern. When the Hearing Examiner
disqualifies himself, the matter shall be heard by the Collier County Planning Commission, the
Board of County Commissioners or the Board of Zoning Appeals, as the case may be, following
the established procedures set forth in the Collier County Land Development Code as if there
were no Hearing Examiner.
7. To the extent authorized by law, by Resolution of the Board of County
Commissioners, the Hearing Examiner may be assigned any and all other powers and duties that
have previously been granted to the Collier County Planning Commission or the Board of
Zoning Appeals, expressly excepting those powers reserved to the Collier County Planning
Commission as the local planning agency (LPA), and land development regulation commission
as required by F.S. §§ 163.3174 and 163.3194. All powers and duties expressly granted to the
Hearing Examiner, either by this ordinance or through future resolutions, preempt the Collier
County Planning Commission, or the Board of Zoning Appeals, as the case may be, with respect
to the established procedures set forth in the Collier County Land Development Code.
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SECTION SIX. Decisions and Appeals from Decisions of the Hearing Examiner.
All decisions of the Hearing Examiner arising from Section Five will be delivered or
mailed by the Hearing Examiner to all parties of record, the County Attorney, and the County
Manager. Any party, including the County, may appeal the decision to the Board of Zoning
Appeals or the Board of County Commissioners, as the case may be, within the time frame and
in the manner provided by the Rules of Procedure. Failing a timely appeal, the decision of the
Hearing Examiner will be considered final in all respects. Appeals shall be heard de novo by the
reviewing Board in the manner proscribed in the LDC. In reaching its decision, the reviewing
Board may adopt or deny, in whole or in part,the decision of the Hearing Examiner.
SECTION SEVEN: Funding for the Office of the Hearing Examiner.
The Board of County Commissioners shall appropriate funds as necessary from the
general fund or other legally available funds of the County to employ the Hearing Examiner and
provide necessary and reasonable expenses for the operation, management, space, facilities, and
expenses associated with the Office of Hearing Examiner. Such appropriations shall be subject
to periodic review and adjustment in accordance with the budgetary process of the County.
SECTION EIGHT: Staff.
The Community Development Services Division shall be the professional staff of the
Hearing Examiner.
SECTION NINE: Conflict and Severability.
In the event this Ordinance conflicts with any other ordinance of Collier County or other
applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and such holding shall not affect the validity of the
remaining portion.
SECTION TEN: Inclusion in the Code of Laws and Ordinances.
The provisions of this Ordinance shall become and be made a part of the Code of Laws
and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered
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or relettered to accomplish such, and the word "ordinance" may be changed to "section,"
"article," or any other appropriate word.
SECTION ELEVEN: Effective Date.
This Ordinance shall become effective upon receipt of notice from the Secretary of State
that this Ordinance has been filed with the Secretary of State.
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County,Florida,this day of , 2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
By: By:
, Deputy Clerk GEORGIA A. HILLER, ESQ.
CHAIRWOMAN
Approved as to form and
legal sufficiency:
Amok
Jeffrey A. Klatzkow
County Attorney
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