Agenda 02/25/2020 Item #17B (Amending the HEX Ordinance)02/25/2020
EXECUTIVE SUMMARY
Recommendation to adopt 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 De cember 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 follows:
5. Additional Duties . To the extent his schedule permits, t he 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 purp ose 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 wil l 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 hi mself 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.
The second proposed change is to add the following code of conduct to the ordinance:
SECTION NINE: Conduct of Hearing Examiner.
A Hearing Examiner shall:
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02/25/2020
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.
f. Not simultaneously serve on any Collier County advisory committee that reviews and
makes recommendations on matters related to land use, zoning, or permitting of
construction.
At its February 11, 2020 regular meeting (Item 12-A), the Board directed the County Attorney to
advertise the proposed amendment for future consideration. Please note that Section 9(f), which prohibits
serving on certain advisory boards, was inadvertently omitted from the February 11th draft ordinance,
which clause among other things in addition to meeting conflict concerns, helps reduces potential conflict
with the Dual Office Holder prohibition of the Florida Constitution.
FISCAL IMPACT: The cost to advertise the proposed ordinance was $455.00.
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 adopt the attached ordinance amending Ordinance No. 2013-25, as
amended, the Collier County Hearing Examiner Ordinance.
ATTACHMENT(S)
1. Deputy Department HEX Document (DOCX)
2. HEX Ordinance Amendment (DOCX)
3. Legal ad - Hearing Examiner Ordinance (PDF)
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02/25/2020
COLLIER COUNTY
Board of County Commissioners
Item Number: 17.B
Doc ID: 11688
Item Summary: Recommendation to adopt 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: 02/25/2020
Prepared by:
Title: Legal Assistant/Paralegal – County Attorney's Office
Name: Virginia Neet
02/13/2020 9:40 AM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
02/13/2020 9:40 AM
Approved By:
Review:
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 02/13/2020 10:30 AM
Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review Completed 02/13/2020 10:48 AM
Budget and Management Office Mark Isackson Additional Reviewer Completed 02/13/2020 11:25 AM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 02/13/2020 12:17 PM
Board of County Commissioners MaryJo Brock Meeting Pending 02/25/2020 9:00 AM
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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
17.B.1
Packet Pg. 2697 Attachment: Deputy Department HEX Document (11688 : Amendment to Hearing Examiner's Ordinance)
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.
17.B.1
Packet Pg. 2698 Attachment: Deputy Department HEX Document (11688 : Amendment to Hearing Examiner's Ordinance)
Words Underlined are added; Words Struck-Through are deleted.
Page 1 of 5
ORDINANCE NO. 2020 - ____ 1
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF 2
COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2013-25, 3
AS AMENDED, THE COLLIER COUNTY HEARING EXAMINER 4
ORDINANCE, BY AMENDING SECTION FIVE, POWERS AND DUTIES 5
OF THE HEARING EXAMINER, AND ADDING A NEW SECTION NINE, 6
CONDUCT OF HEARING EXAMINER; PROVIDING FOR CONFLICT 7
AND 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
17.B.2
Packet Pg. 2699 Attachment: HEX Ordinance Amendment (11688 : Amendment to Hearing Examiner's Ordinance)
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 ordinance s 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 sign 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 necessary 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 Commission 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 applicant's written petit ion; 79
c. The testimony of any applicant or agent; 80
d. The recommendation of staff; and 81
e. The testimony of the public. 82
17.B.2
Packet Pg. 2700 Attachment: HEX Ordinance Amendment (11688 : Amendment to Hearing Examiner's Ordinance)
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
17.B.2
Packet Pg. 2701 Attachment: HEX Ordinance Amendment (11688 : Amendment to Hearing Examiner's Ordinance)
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
f. Not simultaneously serve on any Collier County advisory committee that reviews 142
and makes recommendations on matters related to land use, zoning, or permitting 143
of construction. 144
145
SECTION THREE: Conflict and Severability. 146
In the event this Ordinance conflicts with any other ordinance of Collier County or other 147
applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held 148
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a 149
separate, distinct and independent provision and such holding shall not affect the validity of the 150
remaining portion. 151
152
SECTION FOUR: Inclusion in the Code of Laws and Ordinances. 153
The provisions of this Ordinance shall become and be made a part of the Code of Laws and 154
Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or 155
relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or 156
any other appropriate word. 157
158
SECTION FIVE: Effective Date. 159
This Ordinance shall become effective upon receipt of notice from the Secretary of State 160
that this Ordinance has been filed with the Secretary of State. 161
162
PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier 163
County, Florida, this _______ day of _____________________, 2020. 164
165
17.B.2
Packet Pg. 2702 Attachment: HEX Ordinance Amendment (11688 : Amendment to Hearing Examiner's Ordinance)
Words Underlined are added; Words Struck-Through are deleted.
Page 5 of 5
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ATTEST: BOARD OF COUNTY COMMISSIONERS 168
CRYSTAL K. KINZEL, Clerk COLLIER COUNTY, FLORIDA 169
170
171
By: _____________________________ By: _____________________________ 172
, Deputy Clerk BURT L. SAUNDERS, CHAIRMAN 173
174
175
Approved as to form and legality: 176
177
178
___________________________ 179
Jeffrey A. Klatzkow 180
County Attorney 181
182
17.B.2
Packet Pg. 2703 Attachment: HEX Ordinance Amendment (11688 : Amendment to Hearing Examiner's Ordinance)
17.B.3
Packet Pg. 2704 Attachment: Legal ad - Hearing Examiner Ordinance (11688 : Amendment to Hearing Examiner's Ordinance)