03-01-2005 WorkshopCity of Clermont
MINUTES
PLANNING AND ZONING COMMISSION
WORKSHOP
March 1, 2005
The meeting of the Planning & Zoning Commission was called to order Tuesday,
March 1, 2005, at 6:00 p.m. by Chairman David Pape. Members present were Sy
Holzman, Carolyn Mathieson, Henry Rhee, Roger Pierce, David Outlaw, Elwood
Treadwell, Peter Geigel and Maggie Miller. Also in attendance were Darren
Gray, Assistant City Manager, Curt Henschel, Planner, Barbara Hollerand,
Planner, Daniel Mantzaris, City Attorney and Jane McAllister, Planning and
Zoning Clerk.
City Attorney Daniel Mantzaris presented a program about Procedural and
General Matters that involve the Planning and Zoning Commission.
The topics covered were General Criteria for granting Conditional Use Permits.
Conditions and safeguards, notice requirements and review criteria.
Government in the Sunshine Law was discussed along with Public Records Law
and
Ex-Parte Communications.
The memorandum distributed to the Planning and Zoning Commissioners is
attached and becomes part of these minutes.
There being no further business the meeting was adjourned.
DavidP~. C airman
ATTEST:
t' , ~
e C. McAlli:
G
~~'~ _
r -Planning Technician II
•
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: dmantzaris(a,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 ANNTNC} ANT) 7ONTNC', (:nMM1~STnN TN ('TF.NF.RAT,: 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). 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 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.
(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.
(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. C'TFT`TFR AT ~TANT)ART) (~F RFVTFVV FnR ('.nMMTS~inN MATTF.RS_
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 T)eCTr~nt v_
X95 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 Reach, 560 50.2d 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 Rc,ard of (',rnmtT (~nmmissi~ners of
• Rrevard ('.nunty v_ ~n~der 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 staffls 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 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:
C. C}F.NF.RAT. PRnCF.T)TTRAT MATTFR4
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
4
• 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 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.
(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 party without notice to the other
party 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
5
• unless the information has been provided to you at the public hearing.
(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. 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:
1. 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.
(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
6
• 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 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
Wayne Saunders, City Manager
Darren Gray, Assistant City Manager
•