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04-04-2006 WorkshopCity of Clermont MINUTES PLANNING AND ZONING COMMISSION WORKSHOP April 4, 2006 Page -1 - The meeting of the Planning & Zoning Commission workshop was called to order Tuesday, April 4, 2006 at 6:00 p.m. Members present were Elwood Treadwell, Stephen Berlinsky, Nick Jones and Bill Banzhaf. Roger Pierce, Sy Ho{zman, David Pape, David Outlaw and Peter Geigel were absent. Also in attendance were Jim Hitt, Planning Director, Daniel Mantzaris, City Attorney and Jane McAllister, Planning and Zoning Secretary. City Attorney Dan Mantzaris convened the meeting at 6:10 p.m . He informed the Commission members of what would be expected of them and went on to explain the use of a Conditional Use Permit, Variance, and Rezoning. Mr. Mantzaris stressed the fact that all applications to the Commission must be consistent with the city's Comprehensive Plan. Mr. Mantzaris explained ex-parte communication and the fact that if a Commissioner visits a site prior to that item coming before the Commission, it should be announced at the meeting that they visited the site. , Jim Hitt, Planning Director gave a synopsis of what occurs at the Commission meetings. Mr. Mantzaris went over the Sunshine law and parliamentary procedure. He handed out a memorandum containing useful information. A copy is attached to these minutes. There being no further business the meeting was adjourned. ATTEST: Secretary ~?-.Q~~ ~~at,~ Ji Hitt, Director of Planning __ Y DE BEAUBIEN, KNIGHT, SIIVIl~ZONS, MANTZ;ARIS & NEAL, LLP Attorneys And Counselors At Law A Partnership Including Professional Associations Post Office Bog 87 332 North Magnolia Avenue Orlando, Florida 32802-0087 (407) 422-2454 Writer's Telefag (407) 992-3541 Writer's E-Mail: dmantzaris(~dbksmn.com MEMORANDUM To: Planning and Zoning Commission Members, City of Clermont From: Daniel F. Mantzaris, City Attorney DATE: March 1, 2005 Re: ProceduraUGeneral 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. PT.ANNTNCT ANT) 7.(~NTN('T ('.(~MMTR~T(~N TN ('TFNFRAT • Clermont City Code Sec. 2-76, et seq. created the Commission as authorized by the City Charter. As you aware, in m:~~t uistances uhe 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). A conditional use (special exception) 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: (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 welfaze of persons residing or working in the azea; (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 Safeguazds. In granting a conditional use, the Commission may recommend that the City Council prescribe appropriate conditions and safeguazds 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. (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 "pith 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 aze adequate to ensure compatibility with adjoining property owners. (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 aze additional statutory requirements related to rezoning applications initiated by the City. B. (~TF.NF.RAT, ~TAT~TT)ART) nF RF.VTF.W FnR ('nMMT4CT(1N ,rerrvr~i2e 1. Quasi judicial Body. Although the Commission's actions are advisory recommendations to be heazd 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 T)eC,rnnt v_ ~h~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 a~~Ylic:~?ic~1. See Pollard v_ Palm Reach, 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 azea or injures the public health, safety and welfare. The denial cannot be arbitrary, discriminatory or unreasonable. See R~ard of (~rnmty (~nmmis~inner~ ~f Rrevard (:nimty v wd~.r 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 staff's 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. As we have discussed in the past, unless requested by the applicant and only as it applies to certain individuals, individuals that appear before the Commission do not have to be placed under oath and are not subject to cross-examination by an opposing group or individual. Pursuant to the discretion of the Commission through its Chairman, all individuals who appeaz before the Commission should be given a fair opportunity to be heazd on relevant issues. This, however, does not necessarily mean that individuals should be allowed to make repetitive comments or be given several sepazate opportunities to address the Commission on the same application. C. (TFNF.R AT. PR()(':F.T)T TR AT, MATTER 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 boazd 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 cazeful to avoid any discussion regarding pending matters with other rnembe~s 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 Boazd 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. (b) Practical Application: As members of the Commission you receive numerous copies of documents, the originals of which aze 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 aze 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. (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 aze sued for failure to provide public records. 3. Ex Pane 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 party without notice to the other party and without the other parry 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 5 unless the information has been provided to you at the public hearing. (c) Importance: If you aze contacted by a pazry or interested citizen and participate in an ex parte communication, you have not violated any law. You should, however, at the hearing, disclose to the entire Commission and all of the parties what was discussed. 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: you discover the conflict; 1. disclose your interest to the Commission as soon as 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. S. Deconun. (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. (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 appeazances of favoritism or support of either parry 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 r r them during the hearing. 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 boazds, we have noticed that the following azeas could be better addressed from a pazliamentary 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 dill cult 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 Wayne Saunders, City Manager Darren Gray, Assistant City Manager