03-05-2013 P & Z - Supporting DocumentsCITY OF CLERMONT
PLANNING AND ZONING COMMISSION AGENDA
7:00 P.M., Tuesday, March 5, 2013
City Hall — 685 W. Montrose Street, Clermont, FL
CALL TO ORDER
INVOCATION AND PLEDGE OF ALLEGIANCE
MINUTES
Approval of the Planning and Zoning Commission Meeting minutes held February 5, 2013.
REPORTS
Planning & Zoning Director, Chairman, Commission Members
NEW BUSINESS
Item 1 — Heart Vascular Institute Request for a Conditional Use Permit to
Conditional Use Permit allow a professional/medical office in the R-
3-A Residential/Professional zoning district
Discussion of Non -Agenda Items
ADJOURN
Any person wishing to appeal any decision made by the Planning and Zoning Commission
at this meeting will need a record of the proceedings. For that purpose, such person may
need to ensure that a verbatim record of the proceedings is made, which record includes
the testimony and evidence upon which the appeal is based.
In accordance with the Americans with Disabilities Act (ADA), if any person with a
disability as defined by the ADA needs special accommodation to participate in this
proceeding, then not later than two (2) business days prior to the proceeding, he or she
should contact the Planning and Zoning Department at 352-241-7302.
Please be advised that if you intend to show any document, picture, video or items to the
Council or Board in support or opposition to any item on the agenda; a copy of the
document, picture, video or item must be provided to the Recording Clerk for the City's
records.
City of Clermont
MINUTES
PLANNING AND ZONING COMMISSION
FEBRUARY 5, 2013
Page 1
The meeting of the Planning & Zoning Commission was called to order Tuesday February 5,
2013 at 7:00 p.m. by Vice -Chair Nick Jones. Other members present were Carlos Solis,
Bernadette Dubuss, Gail Ash, Harry Mason, Judy Proli, and Raymond Loyko. Also in
attendance were Jim Hitt, Planning and Zoning Director, Barbara Hollerand, Assistant to the City
Manager, Dan Mantzaris, City Attorney, and Denise Noak, Deputy City Clerk.
Commissioners introduced themselves.
City Manager Darren Gray introduced himself to the Planning and Zoning Commission.
Bernadette Dubuss moved to nominate Nick Jones as Chairman; seconded by Judy Proli. The
vote was unanimous for Nick Jones as Chairman.
Judy Proli moved to nominate Bernadette Dubuss as Vice -Chair; seconded by Ray Loyko. The
vote was unanimous for Bernadette Dubuss as Vice -Chair.
MINUTES of the Planning and Zoning Commission meeting held January 3, 2013 were
approved.
RFPORTR
Chairman Nick Jones stated that there is a symphony orchestra will be coming the week of
Valentine. He stated that the Lions Club will be having a BBQ at the large pavilion the weekend
prior to the Pig on the Pond.
1. REQUEST FOR COMP PLAN AMENDMENT
REQUEST: Request to amend the Capital Improvements Element of the comprehensive plan.
APPLICANT: City Staff
Planning & Zoning Director Jim Hitt presented the following staff report:
The Capital Improvements Element of the comprehensive plan identifies capital projects needed
to maintain adopted Level of Service (LOS) standards. The element includes policies and
projects to reduce existing LOS deficiencies. In addition, the element outlines a schedule for
construction of necessary improvements and expansions to accommodate new growth. It
includes estimates of the cost of public improvements, and it demonstrates the ability of the City
to finance and construct the improvements.
Local governments are required to adopt annual updates to the Capital Improvements Element.
Statutory requirements provide for an expedited adoption process for CIE amendments with a
single public adoption hearing. A transmittal hearing is no longer required for annual updates.
City of Clermont
MINUTES
PLANNING AND ZONING COMMISSION
FEBRUARY 5, 2013
Page 2
Amendments to the element are required to change a project's scheduled construction date. The
City will also annually update Policy 1.6.2 to identify the current Lake County Schools facilities
master plan and its adoption date.
Commissioner Gail Ash moved to recommend approval of the amendments to the Capital
Improvements Elements; seconded by Commissioner Judy Proli. The vote was unanimous to
recommend approval for the rezoning to City Council.
2. REQUEST FOR LAND DEVELOPMENT CODE AMENDMENT
SUBJECT: Land Development Code — proposed amendments
Ordinance No. 2013-04
APPLICANT: Staff
Planning & Zoning Director Jim Hitt presented the following staff report:
Amendment Summary of the following Sections:
CHAPTER 98 — Parking and Vehicular Use Areas: Sec. 98-16, Bicycle parking space
requirement.
Establishes bicycle parking for Clermont. By promoting bicycle use through bicycle parking
requirements, this amendment helps to facilitate our comprehensive plan for a multi -modal
system (Policy 1.7.11 has the provision for bike parking), which also includes reduction of
greenhouse gas emissions through bicycle use (Policy 1.4.3). This amendment will allow for
use of automobile parking spaces or dedicated locations for bicycle parking spaces.
CHAPTER 102 — Signs: Sec. 102-2 Definitions; Sec. 102-7 Exempt signs; Sec. 102-15
Permitted signs.
Provide new and revised definitions; revises the flag requirements; revises the awning sign
usage; revises the number and size of wall signs (based on previous approved variances);
and clarifies marquee signage language. Allows up to two signs on two walls, within the
established size requirements in the LDC.
CHAPTER 118 Vegetation: Sec. 118-36 Plant material.
Allow for palm trees to be counted toward the canopy or understory tree requirements. This
allows palm trees to be used for up to 20% of the tree requirements.
CHAPTER 122 Zoning:
Division 10, C-1 Light Commercial District: Sec. 122-203 Permitted uses; Sec. 122-204
Conditional uses; Sec. 122-206 Yards.
Division 11, C-2 General Commercial District: Sec. 122-223 Permitted uses; Sec. 122-224
Conditional uses; Sec. 122-226 Yards.
Amends the permitted uses and conditional uses for the C-1 and C-2 to eliminate the
ambiguous requirements for a CUP, based on square footage of a building, number of
City of Clermont
MINUTES
PLANNING AND ZONING COMMISSION
FEBRUARY 5, 2013
Page 3
businesses and provides for an acreage requirement. Provide for permitted uses and
conditional uses changes.
All proposed uses and developments are already required to develop in accordance with the LDC
(district specs, engineering, landscaping, architectural, etc.). The changes proposed would speed
up the approval process by eliminating the CUP requirement for certain uses.
Commissioner Gail Ash stated that the code does not state the bicycle parking for any facility
with less than 50 parking spaces.
Mr. Hitt stated that the interpretation would be businesses are required regardless of the number
of parking spaces.
Commissioner Harry Mason asked if the wording could be changed to make the code clear.
Commissioner Gail Ash moved to recommend approval of the land development code
amendment to City Council with the wording change on number 19 for bicycle racks; seconded
by Commissioner Bernadette Dubuss. The vote was unanimous to recommend approval for the
land development code amendment to City Council.
There being no further business, the meeting was adjourned at 8:33 pm.
Nick Jones, Vice -Chairman
ATTEST:
Rae Chidlow — Administrative Assistant
CITY OF CLERMONT
AGENDA ITEM
Paae 1 of 4
Planning & Zoning Commission
March 5, 2013
I
City Council
March 26, 2013
FROM: Planning & Zoning Department
Requested Action
MOTION TO APPROVE: Resolution No. 2013-05
Heart Vascular Institute — Conditional Use Permit
Staff believes this development is consistent with the uses in the area and recommends approval of the
Conditional Use Permit request for a professional office with the CUP conditions as provided.
Summary Explanation/Background
The applicant is requesting a Conditional Use Permit (CUP) to allow a professional office/medical office
in an R-3-A Residential/Professional District. Office uses and similar uses are designated as requiring a
CUP within the R-3-A district.
The applicant is proposing to construct an 18,000 square foot building for The Heart Vascular Institute.
Four doctors' offices will come together under one roof to provide complete coverage for patients with
heart issues. Cardiology, Endocrinology, Vascular, and Rehabilitation are the studies/services that will
be offered at this location.
The Heart Vascular Institute is not an open heart surgery center, nor will be set up for any overnight
stays. Only outpatient procedures will be performed at this location.
Fiscal Impact
Fund Number and Description
Available Budget Amount
S N/A
Exhibits Attached (copies of original agreements)
Exhibit 1 — Site information & Aerial map of site
Resolution No. 2013-05 (Conditional Use Permit)
\\Cityhall\shares\Planning and Zoning\Developments\CUP's\Heart Vascular Inst.CUP - AGENDA ITEM P&Z3-5, CC3-26-13.doc
DEVELOPMENT NAME:
OWNER/APPLICANT:
REQUESTED ACTION:
SIZE OF PARCEL:
GENERAL LOCATION:
EXISTING ZONING:
EXISTING LAND USE:
FUTURE LAND USE:
Exhibit 1
Heart Vascular Institute
South Lake Hospital, Inc. / John Moore, CEO
A CUP Request to allow a professional office within a R-3-A Residential/
Professional Zoning District
2 +/- acre
Oakley Seaver Drive just North of the Hospital
R-3-A, Residential/ Professional Zoning
Vacant
Residential/ Professional
SURROUNDING _CONDITIONS:
FUTURE LAND USE
ZONING
EXISTING LAND USE
NORTH:
Office
Office
Vacant
SOUTH:
Public Facility
PUD
Hospital
EAST:
Residential /Office
R-3-A
Office
WEST:
Residential /Office
PUD
Office
Road Classification:
Utility Area:
Site Utilities:
Site Visit:
Signs Posted:
Location Map:
Oakley Seaver — Collector
City of Clermont Water / Sewer
City of Clermont Water / Sewer
2-14-13
By applicant
Exhibit 2
CUP CONDITIONS:
Section 1 - General Conditions
The conditions as set forth in this Conditional Use Permit shall be legally binding upon any heirs,
assigns and successors in title or interest.
2. No person, firm, corporation or entity shall erect, construct, enlarge, alter, repair, remove, improve,
move, convert, or demolish any building or structure, or alter the land in any manner within the
boundary of the project without first submitting necessary plans, obtaining necessary approvals,
and obtaining necessary permits in accordance with the City of Clermont Land Development
Regulations and those of other appropriate jurisdictional entities.
3. No business can occupy any portion of a building unless the proposed business has applied for and
obtained a Local Business Tax Receipt from the Planning & Zoning Department.
4. The Conditional Use Permit must be executed and processed throw hg the o(Ace of the City Clerk
within 90 days of its date ofgrant by the City Council or the permit shall become null and void.
5. The Applicant shall record in the Public Records of Lake County within 90 days of its date of
approval by the City Council, a short -form version of this Conditional Use Permit as provided by
the City or a form acceptable to the City, to provide notice to all interested parties, the assigns,
successors and heirs of the developer/applicant and all future owners of the above -referenced
property that the real property described above is subject to the terms and conditions of the
Conditional Use Permit.
6. This permit shall become null and void if substantial construction work has not begun within two
(2) years of the date the Conditional Use Permit is executed and signed by the appropriate parties.
Substantial construction work means the commencement and continuous construction of required
improvements ultimately finalized at completion.
7. The applicant shall be required to submit a formal site plan for review and approval by the City
staff. The project shall be designed in substantial accordance with the site plan at the preliminary
site review meetings and public hearings with the exception of modifications necessary to comply
with final CUP conditions.
8. The structure shall be inspected by the Fire Marshall for life safety requirements. All requirements
must be met prior to any Certificate of Occupancy being issued.
9. The structure shall be inspected by the City Building Inspector and all building code violations
must be corrected prior to a Certificate of Occupancy being issued.
10. The final Certificate of Occupancy shall not be issued until each of the stated conditions has been
met.
11. If any of the stated conditions are violated, the applicant understands and agrees that the City
Council may revoke this Conditional Use Permit by resolution.
Section 2- Land Use
The property is approved for a medical office building as well as permitted uses within the R-3-A
Zoning District.
2. The property shall be developed in substantial accordance with the conceptual site plan dated 1-22-
2013 prepared by McCoy and Associates. Formal construction plans, incorporating all conditions
stated in this permit shall be submitted for review and approval by the Site Review Committee
prior to the issuance of a zoning clearance of other development permits. The conceptual site plans
submitted with the CUP application are not the approved construction plans.
3. In the event that parking at this site proves inadequate the City reserves the right to open the CUP
for further review and additional conditions which may include additional parking requirements
revocation of the Conditional Use Permit.
Section 3 — Site Development
Detailed grading, erosion control, and dust abatement plans for the entire site shall be submitted to
and approved by the Site Review Committee prior to construction plan approval and the initiation
of development activity. The dust abatement plan shall detail measures to be taken to eliminate the
migration of dust particles from the site.
2. All excavated material shall be stored in a location approved by the City Engineer.
3. Geo-technical information regarding the soil characteristics of the site shall be submitted to the
City as part of the final site review process.
4. The permittee/developers shall provide both temporary and permanent grassing including fertilizer
application on all disturbed areas where construction is not immediately intended. Said plan shall
be provided in accordance with an approved ground cover plan acceptable to the City in
accordance with best management practices (BMP) of the U.S.D.A. Soil Conservation Service.
Section 5 — Utilities and Stormwater
The permittee shall be responsible for purchasing, installing, and maintaining fire Hydrants within
the project. They shall be installed according to City Code.
2. The project shall be plumbed for reuse water with purple piping, Until such time as reuse water is
available, irrigation water shall be provided for by well.
Section 7 - Architectural Design Standards
1. All structures shall be designed and constructed in accordance with the Architectural Standards of
the City of Clermont.
2. All fencing within public view shall be ornamental metal or brick, as approved by the Site Review
Committee.
Is
c
DATE: January 30, 2013
CITY OF CLERMONT
CONDITIONAL USE PERMIT (CUP)
APPLICATION
PROJECT NAME (if applicable): Heart Vascular Institute
APPLICANT: Heart Vascular Institute, LLC
CONTACT PERSON: Mark Graff, Managing Partner
Address: 1200 Oakley Seaver Drive, Suite 203
City: Clermont
State: Florida
Phone: (352) 516-1580 Fax:
E-Mail: mgraff@graffholdings.com
FEE: $350.00
Zip: 34711
OWNER: South Lake Hospital, Inc. / John Moore, CEO
Address: c/o Orlando Regional Healthcare, P.O. Box 562008
City: Orlando State: Florida Zip:32856-2008
Phone: (352) 394-4071 Fax:
Address of Subject Property: Oakley Seaver Drive
General Location: NW Corner of Oakley Seaver Drive and Don Wickham Drive
Legal Description (include copy of survey): Lot #5, Hospital View, P.B. 54, Pages 31-32
Land Use (City verification required): Residential/Office
Zoning (City verification required): R-3-A
CITY OF CLERMONT
CONDITIONAL USE PERMIT (CUP)
APPLICATION
Page 2
Detailed Description of request (What are you proposing to do and why is it appropriate
for this location? Attach additional page is necessary.
Construction of an 18,000 sf Office Building on Lot #5 at the NW corner of Oakley Seaver Drive and
Don Wickham Drive.
Mark Graff / Heart Vascular Institute, LLC
Applicant Name (print)
John Moore / South Lake Hospital, Inc. h
Owner Name (print)
******NOTICE******
IF THIS APPLICATION IS SUBMITTED INCOMPLETE OR INACCURATE, IT WILL
BE SUBJECT TO A DELAY ON PROCESSING AND WILL NOT BE SCHEDULED
UNTIL CORRECTIONS ARE MADE.
City of Clermont
Planning & Zoning Department
685 W. Montrose St.
P.O. Box 120219
Clermont, FL. 34712-021 9
(352) 394-4083 Fax: (352) 394-3542
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DE BEAUBIEN, KNIGHT, SIMMONS, MANTZARIS & NEAL, LLP
Attorneys And Counselors At Law
A Partnership Including Professional Associations
Post Office Box 87
332 North Magnolia Avenue
Orlando, Florida 32802-0087
(407) 422-2454
Writer's Telefax (407) 992-3541
Writer's E-Mail: dfm14@dbksmn.com
MEMORANDUM
To: Chairman Jones and Members of the City of Clermont
Planning and Zoning Commission
From: Daniel F. Mantzaris, City Attorney
DATE: February 28, 2013
Re: Procedural/General Matters Work Session
The following is provided to assist you with your service on the Planning and Zoning
Commission, and addresses some of the more important issues, which may arise during your
term. This memorandum is only intended to act as a guide, and is not an exhaustive analysis of
any or all of the issues the Commission may need to address. As City Attorney, I am available to
address any of these issues in greater detail should you deem it necessary.
A. PLANNING AND ZONING COMMISSION IN GENERAL: Clermont City
Code Sec. 2-76, et seq. created the Commission as authorized by the City Charter. As you
aware, in most instances the Commission acts as an advisory body to review petitions, receive
staff and applicant information, hear public comment and make recommendations to the City
Council on zoning related matters.
1. Conditional Use Permits (CUP). Chapter 86, Article II, Division 3,
establishes the process for review and approval of an application for a conditional use permit. A
conditional use is a use that because of its uniqueness or character is not specifically identified as
a permitted use in a particular zoning district, but if regulated as to number, area and location or
relation to the area, will not adversely affect the public health, safety, appearance or general
welfare.
(a) General Criteria for Granting CUP. Upon review and formal
action on an application, the Commission may recommend approval to the Council, and the
Council may approve a CUP, if it is found from the evidence presented that:
r
(1) The granting of the CUP will not adversely affect the
City's Comprehensive Plan;
(2) The use will not be detrimental to the health, safety or
general welfare of persons residing or working in the area;
(3) The use will comply with the regulations and conditions
specified in the City Code for such use; and
(4) The use is considered desirable at the particular location.
(b) Conditions and Safeguards. In granting a conditional use, the
Commission may recommend that the City Council prescribe appropriate conditions and
safeguards to protect the public health, safety and welfare and ensure compliance with the codes.
(c) Notice requirements. For all CUP applications the date, time and
place of the Commission's public hearing, and a concise description of the proposed use must be
included in a notice distributed as follows:
(1) To all owners of real property within 150' feet of the
location of the proposed use;
(2) By publication in a newspaper of general circulation at
least five days before the Commission hearing; and
(3) By a sign posted by the applicant on the subject property.
2. Amendments to Land Development Code or Comprehensive Plan and to
Rezone Land. (Chapter 86, Article II of the City Code.)
(a) Review Criteria. In considering an application for an amendment
to the comprehensive plan or the land development code or a rezoning, the Commission shall
consider the following:
(1) Consistency with the existing comprehensive plan, or for a
comprehensive plan amendment, consistency with the
goals, objectives and policies of the comprehensive plan.
(2) Consistency with applicable sections of the land
development code.
(3) In addition, for rezoning requests:
(a) Whether the rezoning request is justified by
changed or changing conditions.
(b) Whether adequate sites already exist for the
proposed district uses.
(c) Whether requirements of the land development code
are adequate to ensure compatibility with adjoining
property owners.
K,
(b) Commission Action. The Commission shall consider and make a
recommendation to the City Council on every request for rezoning or proposed amendment to
the comprehensive plan or the land development code.
(c) Notice requirements. The date, time and place of the
Commission's public hearing, and a concise description of the proposed action, must be noticed
as follows:
(1) To all owners of real property within 150' feet of the
location of the subject property;
(2) By publication in a newspaper of general circulation at
least five days before the Commission hearing; and
(3) By a sign posted by the applicant on the subject property.
(4) Note: there are additional statutory requirements related to
rezoning applications initiated by the City.
B. GENERAL STANDARD OF REVIEW FOR COMMISSION MATTERS.
1. Quasi-judicial Body. Although the Commission's actions are advisory
recommendations to be heard by the City Council, the Commission makes its determinations
based on information and evidence submitted, and as such the commission essentially acts as a
quasi-judicial body. Therefore, in making a determination, the Commission should base its
recommendation on substantial competent evidence or information.
(a) Substantial Competent Evidence. The general view of the
applicable case law, is that substantial competent evidence necessary to support a decision by the
Commission should be information that is relevant to the matter and that a reasonable mind
would accept as adequate to support the conclusion reached. In addition, the information should
be "competent", i.e.: something more then opinion not backed up by facts. See DeGroot v.
Sheffield. 95 So. 2d 912 (Fla 1957).
(b) Fact -Based Decision. Essentially, the Commission should base its
decision on facts present to it and not solely upon the wishes of those who appear for or against
an application. See Pollard v. Palm Beach, 560 So. 2d 1358 (Fla. 4 DCA 1990
2. Applicant's Burden of Proof. As indicated above the key to all of the
matters that the Commission considers is first and foremost making a determination based on
substantial competent evidence that the action requested is consistent with the City's
comprehensive plan, or in the case of comprehensive plan amendments, consistent with the
goals, policies and objectives of the plan. In all such matters, the applicant has the burden of
proving that the application is consistent with the City's comprehensive plan. If the applicant
sustains this burden and meets the other requirements related to the specific application, then the
application should be approved unless the Commission determines that denying the request
accomplishes a legitimate public purpose. The public purpose must be legitimate however, i.e.:
adverse impact of the established area or injures the public health, safety and welfare. The
denial cannot be arbitrary, discriminatory or unreasonable. See Board of County
Commissioners of Brevard County v. Snyder 627 So. 2d 469 (Fla 1993).
3. Presentation of Cases Before Commission. The standard procedure for the
Commission is for the City staff to provide an overview of the subject matter and the applicant's
request and staffs recommendation. The recommendation is usually submitted as part of a staff
report and becomes part of the case "record". After staff presents its report, the applicant is
given an opportunity to present its case. Since the applicant is entitled to a fair hearing on the
request, the Commission should afford the applicant as much time as possible to present its
reasons for the approval of the relief it is requesting. After the applicant is finished, then the
Commission should receive public comment. It is important to remember that public comment
and the applicant's response, if any, should be directed to the Commission and not become a
direct debate between the groups appearing before the Commission. Pursuant to the discretion
of the Commission through its Chairman, all individuals who appear before the Commission
should be given a fair opportunity to be heard on relevant issues. This, however, does not
necessarily mean that individuals should be allowed to make repetitive comments or be given
several separate opportunities to address the Commission on the same application.
4. Only Relevant Information Should be Considered. It is important that the
Commission only receive information that is relevant to the specific question before it. As a
result, presentations from applicants and other interested parties should be limited to the
specifics of the application submitted. Similarly, Commission members and others should not
ask questions or make comments that are not relevant to the specific issues before the
Commission,
C. GENERAL PROCEDURAL MATTERS
1. Government in the Sunshine.
(a) In General: Section 286.011, Florida Statutes, provides
that any meeting, gathering or other event where two or more members of a local government
board or commission discuss any matters related to, or upon which, foreseeable action may be
taken, must be open to the public. Open to the public means properly noticed and in a location at
which the general public can attend.
(b) Practical Application: Obviously that as Commission
members, you must be careful to avoid any discussion regarding pending matters with other
members prior to or after your meetings. What may not be as obvious is that it is equally
important that during your meeting all of your discussions related to a particular matter be in the
sunshine.
For example: Sidebars. During a meeting members should not be
leaning to the member sitting next to them and softly discussing any case. All discussions, no
matter how trivial, need to be made so that the entire Board and audience can hear.
Recesses. Anytime the Board is in recess all
discussion related to pending cases should cease.
(c) Importance: There are two very important reasons why
the Sunshine law must be complied with. First, any action taken in a meeting outside of the
"sunshine", may be invalidated. Second, an intentional violation of this Law is punishable as a
second-degree misdemeanor.
2. Public Records Law
(a) In General: Chapter 119, Florida Statutes, Florida's
Public Records Law provides that all public records, unless exempt by the statute, must be
retained and produced upon request of a member of the general public. It further provides that
any individual who obtains possession of a public record may be deemed a custodian of that
record and subject to retaining it in accordance with Florida Law. Essentially a document is a
public record and must be retained if it is meant to perpetuate, communicate or formalize
knowledge related to a public matter. This only applies to the original document and not to
unaltered copies utilized for working purposes. It is important to recognize that a -mails and text
message to the extent that they are related to City business may be considered public records.
(b) Practical Application: As members of the Commission you
receive numerous copies of documents, the originals of which are public records. If you utilize
the copies simply to refer to during the meeting and do not alter them by adding information that
is intended to perpetuate, communicate or formalize any knowledge or information, then the
document is likely not to be deemed a public record and does not need to be retained.
For example: Copies of your agenda packages need not be
retained unless you add personal notes with regard to the proceedings. Personal notes that you
take during a meeting are arguably made with the intention to perpetuate knowledge and
therefore, may be deemed a public record. If you do take personal notes, it is suggested that you
retain them so that if the need ever arises, you can produce them.
E-mail and text messages: We strongly suggest that if you
are going to use e-mail to communicate any information related, in any manner, to City business
that you copy the Rae Chidlow, the Clerk to the Commission. If you do this, then your e-mail
will automatically be contained on the City's e-mail server and be available for disclosure in
accordance with the Public Records Law. Obviously, if your e-mail is directed to Ms. Chidlow
or to another City employee, then it will be on the City server and no additional copy is needed.
Similarly, since our office has set up a system to retain e-mails, you may always e-mail me and
not be concerned about retention of the e-mail. With regard to text messages, as you are
probably aware, the retention and ability to retrieve text messages can be difficult. Therefore, to
avoid any issues with the Public Records Law, it is our view that members of the Commission
should not send text messages with regard to City business.
(c) Importance: A violation of this act could subject you to a
noncriminal infraction, including a fine not to exceed $500. If you are deemed to be a custodian
of that record and you do not produce it when requested, you may also be responsible for
attorney fees, if you are sued for failure to provide public records.
3. Ex Parte Communications
(a) In General: The Commission is essentially a "quasi-
judicial" body because it makes decisions, applicable to individuals and entities, after hearing
testimony and/or receiving evidence. As such, members of the Commission should avoid
participating in ex parte communications. Ex parte means that information has been received or
communicated to a member of the quasi-judicial body by one parry without notice to the other
parry and without the other party being present.
(b) Practical Application: As Commission members we believe
you should refrain, whenever possible, from discussing any matter that may be before the
Commission or could be brought before the Commission. In your cases, individuals that may try
to discuss matters with you are usually the applicant or an interested citizen. The general
guideline is that as members, you should avoid receiving information directly related to any case
unless the information has been provided to you at the public hearing.
Receiving information not part of presentation. Essentially
any information received by a Commission member that is not part of the presentation at the
public hearing or is not presented to the Commission as a group and the parties involved, can be
determined to be an ex parte communication. As discussed above, conversations with parties
can be deemed ex parte communications. Additionally, reviewing documents, pictures or other
information that is not presented to the entire Commission can be determined ex parte
communication. This later category, could include independent research by a Commission
member, whether done prior to the meeting or at the meeting, for example, by using a smart
phone. Therefore, it is our suggestion that Commission members avoid doing research on their
own as to the issues that may come before them and avoid using a smart phone during the
meeting to obtain information related to the matter.
(c) Importance: If you are contacted by a party or interested
citizen and participate in an ex parte communication, you have not violated any law. Any action
taken, however, could be deemed invalid if it is determined that there was improper ex parte
information received or obtained by a Commission member. If such a situation occurs, you
should at the public meeting, disclose to the entire Commission and all of the parties what was
discussed. To the extent that the ex parte communication involved information such as
documents or internet research, in our view, it will be necessary that you have that information
available to disclose to the Commission at the meeting.
4. Voting Requirements.
(a) In General: As a Commission member you must vote on
every matter brought before you at the meeting unless you have a conflict of interest. Pursuant
to Section 112.3143, Florida Statutes, a conflict of interest involves a matter which could inure
to your "special private gain or loss" or any person or entity you are related to, or associated
with.
(b) Practical Application: Unless you have a conflict you must
vote. You cannot abstain from a vote simply because you know one of the parties involved or
because you disagree with the issue before you. General rule: abstain if you have in the past, or
could in the future, benefit financially from your relationship with the matter or the parties
involved. If not, then you have to vote. If you abstain from any matter, you must do the
following:
disclose your interest to the Commission as soon as
you discover the conflict;
2. refrain from voting on the matter and
3. file the appropriate disclosure form as provided by
Chapter 112, Florida Statutes. The form should be available from the Clerk to the Commission.
(c) Importance: A violation of this act could subject you to a
noncriminal infraction, including a fine not to exceed $500.
5. Decorum.
(a) Avoid the Appearance of Impropriety: In all
Commission matters, it is essential that members utilize common sense and that you avoid
acting, reacting, making statements or commenting in any manner that may give the impression
that you are acting unfairly. Remember that it is important that fundamental fairness be afforded
to all parties that come before the Commission. One way to ensure fundamental fairness is to
limit comments, questions and discussion to the specific issues related to the matter before the
Commission.
(b) Practical Application: Very often, the Commission is
meeting as an impartial body to make a recommendation on a matter that involves a disputed
issue. As such, you should work to avoid all appearances of favoritism or support of either party
before you. Therefore, we suggest that when practical you should avoid speaking to the parties
and others during the hearings except to address issues before the Commission. Additionally,
you may want to consider avoiding the use of first names of the representatives when speaking to
them during the hearing. Finally, Commission members should avoid addressing issues that are
not directly related to the application before the Commission.
6. Parliamentary Procedure
(a) In General: The City Code provides that Roberts Rules
of Order should be utilized as much as possible to ensure that the meeting is handled
appropriately.
(b) Practical Application: Over the course of our involvement
with local government boards, we have noticed that the following areas could be better
addressed from a parliamentary procedural standpoint.
(1) Chairman Recognition to Speak. It is important that
all Commission members be recognized by the Chairman prior to speaking. As you know, the
meetings are electronically recorded and, sometimes there is a court reporter present. As a
result, the tape or record of the proceedings could be extremely difficult to understand if
members are talking over one another.
(2) Making of Motions. Sometimes, as a member is
making a motion, another Commission, the applicant, the City staff or an interested citizen will
interrupt the member to address a point in the motion. In all cases, the Chairman should request
that the member making the motion not be interrupted and that the matter not be discussed until
the motion has been seconded.
(3) Discussion of Motions. When a motion has
been made and seconded, it is subject to discussion among the Commission members and the
Commission's Legal Counsel, only. This means that the parties to the matter should not be
permitted, or, in most cases, requested, to participate.
Thank you for taking the time to review this memorandum, we hope that it has provided
you with information that will assist you as you serve the City of Clermont. As always, if you
have any questions, or wish to discuss any of these matters further, please do not hesitate to
contact me.
cc: Mayor and City Council Members
Darren Gray, City Manager
Scott Blankenship, Assistant City Manager
Barbara Hollerland, Planning & Zoning Director
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