Agenda 01/28/2020 Item #16K 3 (Request to Advertise the HEX Ordinance)Proposed Agenda Changes
Board of County Commissioners Meeting
January 28, 2020
Move Item 16K3 to Item 12B: Recommendation to direct the County
Attorney to advertise, and bring back for public hearing, an
amendment to Ordinance No. 2013-25, as amended, the Collier
County Hearing Examiner Ordinance, that would revise the Hearing
Examiner’s powers and duties and establish directives regarding the
Hearing Examiner’s conduct. (Commissioner McDaniel’s request)
Note:
Item 9B: Update Credit Agreement Exhibits: Request to replace the credit agreement exhibits to
the resolution. The credit agreement exhibits in the agenda backup were inadvertently merged with
incorrect exhibits. (Staff’s request)
Time Certain Items:
Items 9A, 9B, 11B and 11C to be heard at 10:00 a.m.
1/28/2020 9:06 AM
01/28/2020
EXECUTIVE SUMMARY
Recommendation to direct the County Attorney to advertise, and bring back for public hearing, an
amendment to Ordinance No. 2013-25, as amended, the Collier County Hearing Examiner
Ordinance, that would revise the Hearing Examiner’s powers and duties and establish directives
regarding the Hearing Examiner’s conduct.
OBJECTIVE: To modify the Hearing Examiner’s powers and duties and create guidelines regarding
conduct.
CONSIDERATIONS: On March 26, 2013, the Board of County Commissioners (Board) adopted
Ordinance No. 2013-25 establishing the Office of the Hearing Examiner. Ordinance No. 2013-59
subsequently amended the Ordinance as it relates to the Hearing Examiner’s duty to hear requests for
minor conditional uses.
After notice of the Hearing Examiner’s approaching resignation, the Board, during its
December 10, 2019 regular meeting, discussed restructuring the position from a full-time employee to an
independent contractor to the Board. The Board also asked the County Attorney to work with
Commissioner Solis on revisions to the powers and duties of the Hearing Examiner for future
consideration.
There are two proposed changes to the ordinance:
The first proposed change is to modify the Powers and Duties of the Hearing Examiner as f ollows:
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 o r 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.
5. The Board of County Commissioners, by majority vote, may remand any advertised public
hearing involving a development order to the Hearing Examiner for the sole purpose of opining on a
legal or technical land use issue raised during the hearing. After reviewing the matter utilizing any
procedure the Hearing Examiner deems appropriate, which may or m ay not include an advertised
public hearing, the Hearing Examiner will issue a non -binding recommendation to the Board with
respect to the issue remanded, which recommendation will become part of the record when the matter
is again heard by the Board.
6. Recusal of Hearing Examiner. The Hearing Examiner shall 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 Heari ng 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 Count y Land Development Code as if there were no Hearing
Examiner.
The second proposed change is to add the following code of conduct to the ordinance:
SECTION NINE: Conduct of Hearing Examiner.
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A Hearing Examiner shall:
a. Avoid impropriety and the appearance of impropriety in all of the Hearing Examiner’s
activities.
b. Perform the duties of the Hearing Examiner impartially and diligently.
c. Regulate outside activities to minimize the risk of conflict with the duties of the Hearing
Examiner.
d. Conduct themselves in a manner that does not give the appearance of influence or
impropriety.
e. Refrain from inappropriate political activity.
FISCAL IMPACT: The estimated cost to advertise the proposed ordinance is $500.00.
GROWTH MANAGEMENT IMPACT: None
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to
form and legality, with majority support required for approval. - JAK
RECOMMENDATION: To direct the County Attorney to advertise, and bring back for public hearing,
an amendment to Ordinance No. 2013-25, as amended, the Collier County Hearing Examiner Ordinance.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
ATTACHMENT(S)
1. Ordinance - HEX Amendment (DOCX)
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01/28/2020
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.3
Doc ID: 11433
Item Summary: Recommendation to direct the County Attorney to advertise, and bring back for
public hearing, an amendment to Ordinance No. 2013-25, as amended, the Collier County Hearing
Examiner Ordinance, that would revise the Hearing Examiner’s powers and duties and establish directives
regarding the Hearing Examiner’s conduct.
Meeting Date: 01/28/2020
Prepared by:
Title: Legal Assistant/Paralegal – County Attorney's Office
Name: Virginia Neet
01/22/2020 11:21 AM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
01/22/2020 11:21 AM
Approved By:
Review:
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 01/22/2020 11:27 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 01/22/2020 12:13 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 01/22/2020 1:23 PM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 01/22/2020 1:27 PM
Board of County Commissioners MaryJo Brock Meeting Pending 01/28/2020 9:00 AM
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ORDINANCE NO. 2020 - ____ 1
AN ORDINANCE BOARD OF COUNTY COMMISSIONERS OF COLLIER 2
COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2013-25, THE 3
COLLIER COUNTY HEARING EXAMINER ORDINANCE, BY 4
AMENDING SECTION FIVE, POWERS AND DUTIES OF THE HEARING 5
EXAMINER, AND ADDING A NEW SECTION NINE, CONDUCT OF 6
HEARING EXAMINER; PROVIDING FOR CONFLICT AND 7
SEVERABILITY, PROVIDING FOR INCLUSION IN THE CODE OF 8
LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE 9
DATE. 10
11
WHEREAS, the 1967 Collier County Special Act (Laws of Fla. ch. 67-1246, as amended 12
by Laws of Fla. ch. 2001-344), specifically authorizes the Board of County Commissioners to 13
implement a county hearing examiner program by county ordinance; and 14
WHEREAS, the Collier County Land Development Code Sec. 8.02.01.C provides that in 15
addition to any authority granted to the Board of County Commissioners by general or special law, 16
the Board of County Commissioners (BCC) shall have the power “to designate and appoint hearing 17
officers to make decisions as the BCC may deem appropriate.” 18
WHEREAS, on March 26, 2013, the Board of County Commissioners adopted Ordinance 19
No. 2013-25, the Collier County Hearing Examiner Ordinance, which established the Office of the 20
Hearing Examiner under the terms and conditions outlined in the Ordinance; and 21
WHEREAS, Ordinance No. 2013-25 was subsequently amended by the adoption of 22
Ordinance No. 2013-59; and 23
WHEREAS, the Board of County Commissioners wishes to further amend Ordinance No. 24
2013-25, as amended, in order to revise the powers and duties of the Hearing Examiner and 25
establish directives regarding the conduct of the Hearing Examiner. 26
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY 27
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: 28
29
SECTION ONE: Amendment to Section Five of Ordinance No. 2013-25, as amended. 30
31
Section Five of Ordinance No. 2013-25, as amended, is hereby amended as follows: 32
33
SECTION FIVE: Powers and Duties of the Hearing Examiner. 34
35
36
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The Hearing Examiner shall have the following powers and duties: 38
39
1. Appeals of Administrative Decision or Interpretation . All type III appeals of 40
administrative decisions or interpretations, as set forth in LDC Section 10.04.04, shall be heard 41
by the Hearing Examiner. All appeals and staff response to such appeals must substantially 42
conform to the Rules of Procedure. In reaching his decision, the Hearing Examiner must 43
consider: 44
45
a. The criteria for the type of application being requested; 46
b. Testimony from the applicant; and 47
c. Testimony from any members of the public. 48
49
2. Variances. The Hearing Examiner will hear and decide all requests for variances from 50
the terms of the regulations or restrictions of the zoning code and such other codes or ordinances 51
as may be assigned to him by the Board of County Commissioners. In reaching his decision, 52
the Hearing Examiner must consider: 53
54
a. The criteria for the type of variance being requested, in particular those set forth in 55
LDC Section 9.04.03; 56
b. Staff recommendations; 57
c. Testimony from the applicant; and 58
d. Testimony from the public. 59
60
Before granting any variance, the Hearing Examiner must make a finding with respect to 61
each of the criteria set forth in LDC Section 9.04.03, and with respect to si gn variances, LDC 62
Section 5.06.08. The Hearing Examiner has the same authority as the Board of Zoning Appeals 63
to grant, deny, or modify any request for a variance from the regulations or restrictions of this 64
Code, or to attach conditions and requirements n ecessary for the protection of the health, safety, 65
comfort, convenience and welfare of the general public. The conditions or requirements must be 66
reasonably related to the variance requested and conform to the requirements of the LDC. 67
68
3. Conditional Uses . The Hearing Examiner will hear and decide all requests for minor 69
conditional uses. For purposes of this section, a minor conditional use is one which does not 70
require Environmental Advisory Council review and which is not a case of great public interest 71
or concern as determined in the discretion of the Hearing Examiner. However, the 72
Commissioner of the District in which the proposed minor conditional use is located may direct 73
that the minor conditional use be heard by the Planning Commiss ion in an advisory capacity 74
and then Board of Zoning Appeals for final action. In reaching his decision, the Hearing 75
Examiner must consider: 76
77
a. The factors and criteria set forth in LDC Subsection 10.08.00.D; 78
b. The relevant matters set forth in an applic ant's written petition; 79
c. The testimony of any applicant or agent; 80
d. The recommendation of staff; and 81
e. The testimony of the public. 82
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83
As part of his decision, the Hearing Examiner must make the findings required by LDC 84
Subsection 10.08.00.D, and may place appropriate conditions and safeguards as set forth in LDC 85
Subsection 10.08.00.E. 86
87
4. Boat Lift Canopies and Dock Facility Extensions . The Hearing Examiner shall hear all 88
petitions for a boat lift canopy and dock facility extensions as provided for in LDC Subsections 89
5.03.06.G and H. 90
91
5. Additional Duties . To the extent his schedule permits, the Hearing Examiner will make 92
his special knowledge and expertise available upon reasonable request of the Board of County 93
Commissioners, any individual Commissioner, the County Manager or the County Attorney, 94
provided that such requests do not in any way involve any matter that is pending, or is likely to 95
come before, the Hearing Examiner. 96
97
5. The Board of County Commissioner s, by majority vote, may remand any advertised 98
public hearing involving a development order to the Hearing Examiner for the sole purpose of 99
opining on a legal or technical land use issue raised during the hearing. After reviewing the 100
matter utilizing any procedure the Hearing Examiner deems appropriate, which may or may not 101
include an advertised public hearing, the Hearing Examiner will issue a non -binding 102
recommendation to the Board with respect to the issue remanded, which recommendation will 103
become part of the record when the matter is again heard by the Board. 104
105
6. Recusal of Hearing Examiner . The Hearing Examiner shall disqualify himself from a 106
particular case when he reasonably perceives that he has a real or perceived conflict of interest, 107
or that the case is one of great public interest or concern. When the Hearing Examiner 108
disqualifies himself, the matter shall be heard by the Collier County Planning Commis sion, the 109
Board of County Commissioners or the Board of Zoning Appeals, as the case may be, following 110
the established procedures set forth in the Collier County Land Development Code as if there 111
were no Hearing Examiner. 112
113
7 6. To the extent authorized by law, by Resolution of the Board of County Commissioners, 114
the Hearing Examiner may be assigned any and all other powers and duties that have previously 115
been granted to the Collier County Planning Commission or the Board of Zoning Appeals, 116
expressly excepting those powers reserved to the Collier County Planning Commission as the 117
local planning agency (LPA), and land development regulation commission as required by F.S. 118
§§ 163.3174 and 163.3194. All powers and duties expressly granted to the Hear ing Examiner, 119
either by this ordinance or through future resolutions, preempt the Collier County Planning 120
Commission, or the Board of Zoning Appeals, as the case may be, with respect to the 121
established procedures set forth in the Collier County Land Develo pment Code. 122
123
124
SECTION TWO: Addition of Section Nine to Ordinance No. 2013-25, as amended. 125
126
The new Section Nine of Ordinance No. 2013-25, as amended, shall read as follows: 127
128
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129
SECTION NINE: Conduct of Hearing Examiner. 130
131
A Hearing Examiner shall: 132
133
a. Avoid impropriety and the appearance of impropriety in all of the Hearing 134
Examiner’s activities. 135
b. Perform the duties of the Hearing Examiner impartially and diligently. 136
c. Regulate outside activities to minimize the risk of conflict with the duties of the 137
Hearing Examiner. 138
d. Conduct themselves in a manner that does not give the appearance of influence or 139
impropriety. 140
e. Refrain from inappropriate political activity. 141
142
SECTION THREE: Conflict and Severability. 143
In the event this Ordinance conflicts with any other ordinance of Collier County or other 144
applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held 145
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a 146
separate, distinct and independent provision and such holding shall not affect the validity of the 147
remaining portion. 148
149
SECTION FOUR: Inclusion in the Code of Laws and Ordinances. 150
The provisions of this Ordinance shall become and be made a part of the Code of Laws and 151
Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or 152
relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or 153
any other appropriate word. 154
155
SECTION FIVE: Effective Date. 156
This Ordinance shall become effective upon receipt of notice from the Secretary of State 157
that this Ordinance has been filed with the Secretary of State. 158
159
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier 160
County, Florida, this _______ day of _____________________, 2020. 161
162
163
164
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ATTEST: BOARD OF COUNTY COMMISSIONERS 165
CRYSTAL K. KINZEL, Clerk COLLIER COUNTY, FLORIDA 166
167
168
By: _____________________________ By: _____________________________ 169
, Deputy Clerk BURT L. SAUNDERS, CHAIRMAN 170
171
172
Approved as to form and legality: 173
174
175
___________________________ 176
Jeffrey A. Klatzkow 177
County Attorney 178
179
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