(a) Intent. Pursuant to § 286.0115(1), Fla. Stat., it is the intent of the Town Commission that this section is intended to remove the presumption of prejudice from ex parte communications with Town officials and to permit site visits, the receipt of expert opinion, and the review of mail and other communications relating to certain quasi-judicial proceedings by said officials. No permission pursuant to § 286.0115, Fla. Stat., to engage in ex parte communications or to conduct site visits, receive expert opinion at other than an advertised public hearing, or to review mail and other communications is authorized by the Town Commission pursuant to this section, except for the quasi-judicial matters set forth herein and only to the extent set forth below.
(b) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
EX PARTE COMMUNICATION. A communication involving a Town official and a member of the public, applicant or applicant’s representative regarding a pending quasi-judicial permit application, appeal, or code enforcement matter, such that the Town official may be exposed to only one perspective or part of the evidence with regard to a quasi-judicial matter pending before the Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board.
MEMBER OF THE PUBLIC. Any person interested in a quasi- judicial permit application, appeal, or code enforcement matter, including but not limited to a permit applicant, an appellant from the Building Official or other Town administrator's decision, an officer or member of a homeowners' association, an officer or member of an environmental, homebuilding/ development, or concerned citizens' organization, an official or employee of a governmental entity other than the Town, a developer, a property owner, or any other interested citizen, or a representative or attorney for any of the foregoing.
QUASI-JUDICIAL. A land use, zoning or building related permit or appeal, code enforcement issue, or the opening, diverting, narrowing, straightening, widening or vacating of any roadway, alley, easement, public highway, street or right-of-way, as set forth below, in which Town officials give notice and an opportunity to be heard to certain substantially affected persons, investigate facts, ascertain the existence of facts, hold hearings, weigh evidence, draw conclusions from the facts, and apply the law to the facts, as the basis for their decision. The following are the only quasi- judicial matters subject to this section:
(A) Variances granted by the Board of Adjustment or Town Commission;
(B) Site specific rezonings of land pursuant to § 7A-101 of this code, which rezoning will have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application rather than policy setting;
(D) Applications for plat approval (preliminary and final) pursuant to Chapter 6A of this code or subdivision variance;
(E) Appeals heard by the Town Commission from a determination of the Building Official, pursuant to § 3A-7 of this code, with regard to concurrency, Chapter 3A of this code;
(F) Applications for the opening, diverting, narrowing, straightening, vacation, or widening of any alley, street, public highway, right-of-way, roadway or easement (preliminary and final) pursuant to this code or Chapters 166 or 177, Fla. Stat., or other provisions of law;
(G) Special exceptions heard by the Board of Adjustments;
(H) Approvals or variances for flood control pursuant to Chapter 4A of this code;
(I) Coastal construction variances granted by the Board of Adjustment pursuant to Chapter 5A of this code;
(J) Appeals from determinations by the Building Official or the Zoning Official to the Board of Adjustment or other person or body; and
(K) Outdoor display special permits.
SITE VISIT. An inspection of real property subject to an application for any quasi-judicial permit or appeal conducted by a Town official. The mere act of driving by a site in the daily course of driving to a particular location, such as work or a particular store, which act is not undertaken for the purpose of inspecting a particular parcel of real property, is not a site visit for the purposes of this section.
TOWN OFFICIAL. A member of Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board.
(c) Ex parte communications between Town officials and members of the public.
(1) A member of the public not otherwise prohibited by statute, charter provision or ordinance, may have an ex parte communication with any Town official regarding any quasi- judicial matter on which action may be taken by the Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board; provided, that the Town official adheres to the disclosure requirements set forth in the sub-section (c)(3) below.
(2) Except as otherwise provided by statute, charter provision, or ordinance, any Town official may have an ex parte communication with any expert witness or consultant regarding any quasi-judicial matter on which action may be taken by the Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board; provided, that the Town official adheres to the disclosure requirements set for in sub-section (c) (3) below.
(3) Disclosure.
(A) The Town official shall disclose the occurrence of all ex parte communications involving said Town official which relate to the quasi-judicial application pending before the Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board.
(B) Disclosure of an ex parte communication. Disclosure shall occur by no later than the commencement of the final public hearing on the quasi-judicial application, or, if no formal public hearing is held, then at the commencement of any hearing at which the final decision regarding the quasi-judicial matter is made. The Town official shall disclose the ex parte communication verbally or by memorandum. Any such memorandum disclosing the occurrence of the ex parte communication shall be placed in the official file regarding the pending quasi-judicial matter which file shall be maintained in Town Hall. By no later than the commencement of the final hearing leading to a final decision on the pending quasi-judicial matter by the Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board, the memorandum shall be considered to be a part of the record.
(C) At the time of disclosure, the Town official shall identify the person group or entity with whom the ex parte communication took place, the substance of the ex parte communication, and any matters discussed which are material to said Town official's decision in the pending quasi-judicial matter.
(d) Oral or written communications between Town staff and Town officials. Town officials may discuss quasi-judicial matters pending before the Town Commission with Town staff.
(e) Site visits by Town officials. Any Town official may conduct a site visit of any property related to a quasi-judicial matter pending before the Town official’s board or commission; provided, that the Town official adheres to the disclosure requirements set forth in sub-section (c)(3) above. Any disclosure of a site visit pursuant to sub-section (c)(3) shall disclose the existence of the site visit, and any information obtained by virtue of the site visit considered by the Town official to be material to said official's decision regarding the pending quasi-judicial matter.
(f) Review of mail, correspondence and written communications by town officials. Any Town official may review mail, correspondence, or written communications, related to a quasi-judicial matter pending before the Town official’s board or commission. Promptly after review of the mail, correspondence, or written communication, the document shall be placed in the official file regarding the pending quasi-judicial matter and maintained at Town Hall.
(g) Planning and zoning department file. All correspondence, mail, or written communications reviewed by the Town officials prior to the final hearing on a pending quasi- judicial matter shall be placed in the official file regarding said matter and maintained at Town Hall. Said correspondence, mail, or written communications reviewed by Town officials prior to the final hearing on a pending quasi-judicial matter, or any disclosure memoranda as described in sub-section (c)(3)(B), shall be available for public inspection. By no later than the commencement of the final public hearing, or if no formal public hearing is held, then at the commencement of any hearing at which the final decision regarding the quasi-judicial matter is made, said correspondence, mail, written communications, or other matters, and any disclosure memoranda placed in the official file shall be considered to be a part of the record. All of the foregoing documents shall be received as evidence by the Town Commission, the Planning and Zoning Board/Local Planning Agency, the Board of Adjustment, or the Code Enforcement Board, as applicable, with the exception of disclosure memoranda, subject to any objections interposed by participants at the hearing.
(h) Opportunity to comment upon substance of disclosure. At such hearing at which a disclosure regarding an ex parte communication, receipt of an expert opinion, site visit, or review of mail, correspondence, or other written communications, becomes a part of the record, persons who may have opinions or evidence contrary to those expressed in the ex parte communication, expert opinion or mail, correspondence, or other written communication, or noted during the site visit, shall be given a reasonable opportunity to refute or respond to and provide contrasting information, evidence, or views.
(Ord. 98-04, passed 6-18-98; Am. Ord. 2014-02, passed 4-16-14; Am. Ord. 2017-05, adopted 12-20-17)