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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. Packet Page-950- 3/12/2013 12.A. 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 Packet Page-951- 3/12/2013 12.A. 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 Packet Page-952- 3/12/2013 12.A. 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 Page 1 of 7 Packet Page-953- 3/12/2013 12.A. 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. Page 2 of 7 Packet Page-954- 3/12/2013 12.A. (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. Page 3 of 7 Packet Page-955- 3/12/2013 12.A. 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; Page 4 of 7 Packet Page-956- 3/12/2013 12.A. 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. Page 5 of 7 Packet Page-957- 3/12/2013 12.A. 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 Page 6 of 7 Packet Page-958- 3/12/2013 12.A. 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 Page 7 of 7 Packet Page-959-