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Agenda 02/11/2020 Item #12A (Amending the Hearing Examiner Ordinance 2013-25)02/11/2020 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 wo rk 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 follows: 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. 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 may 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 Hear ing 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 Coun ty 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: 12.A Packet Pg. 46 02/11/2020 SECTION NINE: Conduct of Hearing Examiner. 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. Deputy Department HEX document (DOCX) 2. Ordinance - HEX Amendment (DOCX) 12.A Packet Pg. 47 02/11/2020 COLLIER COUNTY Board of County Commissioners Item Number: 12.A Doc ID: 11557 Item Summary: *** This item was continued from the January 28, 2020 BCC meeting. *** 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: 02/11/2020 Prepared by: Title: Manager - Technical Systems Operations – Administrative Services Department Name: Michael Cox 02/04/2020 1:23 PM Submitted by: Title: County Attorney – County Attorney's Office Name: Jeffrey A. Klatzkow 02/04/2020 1:23 PM Approved By: Review: County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 02/04/2020 2:05 PM Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 02/04/2020 2:21 PM Budget and Management Office Mark Isackson Additional Reviewer Completed 02/04/2020 2:25 PM County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 02/05/2020 3:44 PM Board of County Commissioners MaryJo Brock Meeting Pending 02/11/2020 9:00 AM 12.A Packet Pg. 48 To: Leo Ochs, County Manager Nick Casalanguida, Deputy County Manager Through: Thaddeus Cohen, Department Head, Growth Management Department From: James French, Deputy Department Head, Growth Management Department Date: February 5, 2020 In reference to the role the Hearing Examiner (HEX) performs in the land development petition determination process, please note the following analysis provided by staff. Benefits of the HEX Office: The procedures established for the Collier County HEX Office provides for a more streamlined and efficient review of land use petitions which benefit both the staff of the Planning and Zoning Division and our customers. The primary benefits are as follows: • Time Savings: Those land use petitions that require two public hearings (CCPC, and BZA or BCC) can be reviewed and approved with only one public meeting held by the HEX. This results in a time savings for each applicant. • Scheduling: Those land use petitions sent to the HEX has freed up the CCPC and BCC agendas to hear more complicated petitions such as GMP Amendments, PUD Rezones, SRA Designations, LDC Amendments and other land use studies. • Cost Savings: Because the HEX process only requires one public hearing, the applicant only pays the advertising of the HEX meeting as opposed to paying the additional advertising costs of the BZA or BCC hearing. This is a savings of approximately $600 - $800 in advertising costs per application, paid for by the applicant/property owner. • Efficiency: County staff can be more efficient in the review and processing of those land use petitions that are presented to the HEX since extra time is not needed to prepare executive summaries and attend additional BZA or BCC meetings. Typical Hearing Examiner Duties: The following petitions are currently assigned to the HEX. If the HEX Office were eliminated, amendments to the Land Development Code (LDC) and Administrative Code would be required to modify the delegation of these petitions and make procedural changes, as necessary. 1) Administrative Type III Appeal 2) Alcohol Distance Waiver 12.A.1 Packet Pg. 49 Attachment: Deputy Department HEX document (11557 : HEX Ordinance Amendment) 3) Appeal of an Official Interpretation of the LDC 4) Automobile Service Station Waiver 5) Boat Dock Facility Extension, including Boat Lift Canopy Deviations 6) Minor Conditional Use 7) Minor Conditional Use Re-Review 8) Minor Conditional Use Extension 9) Non-Conforming Use Change and Non-Conforming Use Alteration 10) Parking Exemption with a Public Hearing 11) Post Take Plan, if applicable 12) PUD Extension 13) PUD Insubstantial Changes, including Minor Text Changes 14) PUD Minor Change to Remove Affordable Housing Contribution 15) Sign Variance 16) Site Plan with Deviations for Redevelopment Projects 17) Stewardship Receiving Area (SRA) Insubstantial Changes, including Minor Text Changes 18) Variance 19) Zoning Verification Letter – PUD Comparable Use Determination Potential CCPC and BCC Workload Change: There is an average of 2.6 HEX agenda items per month, however, many meetings have four or more items but there are limited meetings during the holidays. Below is a breakdown of the number of agenda items heard by both the HEX and CCPC in 2018 and 2019. If the HEX Office is eliminated, and all HEX agenda items are transferred to the CCPC, the number of CCPC agenda items could potentially increase significantly. HEX CCPC Increase in number of CCPC agenda items 2018 30 76 39.5% 2019 35 44 79.5% Land Development Industry Review: In a meeting with County staff on February 4, 2020, the land development industry representatives indicated that the HEX Office has benefited the development community and expressed a desire to maintain the HEX Office. Staff Recommendation: Based on the benefits of the HEX Office and the potential impacts to the CCPC and BCC workload, Growth Management Department staff believes that a qualified HEX will provide a significant benefit to the community and therefore recommends maintaining the HEX Office. 12.A.1 Packet Pg. 50 Attachment: Deputy Department HEX document (11557 : HEX Ordinance Amendment) Words Underlined are added; Words Struck-Through are deleted. Page 1 of 5 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 12.A.2 Packet Pg. 51 Attachment: Ordinance - HEX Amendment (11557 : HEX Ordinance Amendment) Words Underlined are added; Words Struck-Through are deleted. Page 2 of 5 37 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 12.A.2 Packet Pg. 52 Attachment: Ordinance - HEX Amendment (11557 : HEX Ordinance Amendment) Words Underlined are added; Words Struck-Through are deleted. Page 3 of 5 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 12.A.2 Packet Pg. 53 Attachment: Ordinance - HEX Amendment (11557 : HEX Ordinance Amendment) Words Underlined are added; Words Struck-Through are deleted. Page 4 of 5 129 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 12.A.2 Packet Pg. 54 Attachment: Ordinance - HEX Amendment (11557 : HEX Ordinance Amendment) Words Underlined are added; Words Struck-Through are deleted. Page 5 of 5 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 12.A.2 Packet Pg. 55 Attachment: Ordinance - HEX Amendment (11557 : HEX Ordinance Amendment)