§ 157.121  PROCEDURES FOR QUASI-JUDICIAL HEARINGS; EX PARTE COMMUNICATIONS, SITE VISITS; RECEIPT OF EXPERT OPINION, AND REVIEW OF MAIL AND OTHER COMMUNICATIONS.
   (A)   Intent.  Pursuant to F.S. § 286.0115(1), it is the intent of the Town Council 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 the town officials. No permission pursuant to F.S. § 286.0115, 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 Council 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, town staff or a town consultant regarding a pending quasi-judicial permit application or appeal, the 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 Council or Board on which the town official serves
      MEMBER OF THE PUBLIC.  Any person interested in a quasi-judicial permit application or appeal, including but not limited to a permit applicant, an appellant from a 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 an interested citizen, or a representative or attorney for any of the foregoing
      QUASI-JUDICIAL.  Refers to a zoning or building-related permit or appeal 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)   Site specific rezonings of land pursuant to the town 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;
         (b)   Applications for approval or amendment of a conditional use permit pursuant to the town code;
         (c)   Applications for approval, amendment or extension of time of an approval of a site plan considered by the Town Council and the Planning and Zoning Board pursuant to the town code;
         (d)   Applications for a special permit issued pursuant to the town code;
         (e)   Applications for plat approval (preliminary and final) pursuant to the town code;
         (f)   Applications for a vested rights special permit pursuant to the town code;
         (g)   Variances considered by the Board of Adjustment:
            1.   Pursuant to the town code (Zoning Code);
            2.   Pursuant to the town code (standards for walls and fences); and
            3.   Pursuant to the town code (signs and advertising).
         (h)   Variances considered by the Building Board of Adjustment and Appeals:
            1.   Pursuant to the town code (flood prevention and protection);
            2.   Pursuant to Town Building Code;
            3.   Pursuant to Town Plumbing Code;
            4.   Pursuant to Town Gas Code;
            5.   Pursuant to Town Mechanical Code; and
            6.   Pursuant to Town Fire Prevention Code.
         (i)   Subdivision variances considered by the Town Council and Planning and Zoning Board;
         (j)   Appeals heard by the Board of Adjustment from an:
            1.   Interpretation by the code enforcement officer of the vegetation provisions, Chapter 154 of the town code, pursuant to § 31.36 of the town code; and
            2.   Interpretation of the Zoning Code by the town planner pursuant to the town code.
         (k)   Appeals heard by the building Board of Adjustments and appeals from a:
            1.   Determination of the Town Engineer relating to stormwater regulation in the town code;
            2.   Determination of the Building Official relating to the Town Building Code;
            3.   Determination of the Building Official relating to the Town Plumbing Code;
            4.   Determination of the Building Official relating to the Town Gas Code;
            5.   Determination of the Building Official relating to the Town Mechanical Code; and
            6.   Determination of the fire official relating to the Town Fire Prevention Code.
         (l)   Appeals heard by the Town Council from an interpretation of the comprehensive plan by the town planner;
         (m)   Appeals from planning, zoning, building or other staff officials whose decisions are subject to appeal to the Town Council or other Town Board;
         (n)   Appeals heard by the Town Council and the local planning agency from a determination regarding concurrency by town staff; and
         (o)   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 the town code or F.S. Chs. 166 or 177, or other provisions of law.
      SITE VISIT.  An inspection of real property subject to an application for any quasi-judicial permit or appeal prior to a public hearing on the permit application 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 purposes of this section
      TOWN OFFICIAL.  Refers to a member of the Town Council, the Planning and Zoning Board, the local planning agency, the Board of Adjustment, or the Building Board of Adjustment and Appeals.
   (C)   Ex parte communications between town officials and members of the public.
      (1)   Except as otherwise provided in division (C)(4) below, 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 Council or Board on which the town official serves; provided, that the town official adheres to the disclosure requirements set forth in division (C)(3) below.
      (2)   Except as otherwise provided in division (C)(4) below, 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 Council or Board on which the town official serves; provided, that the town official adheres to the disclosure requirements set forth in division (C)(3) below.
      (3)   Disclosure.
         (a)   The town official shall disclose the occurrence of all ex parte communications involving the town official which relate to the quasi-judicial action pending before the Council or Board on which the town official serves.
         (b)   Disclosure of the ex parte communication.  Disclosure shall occur 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. The town official shall disclose the ex parte communication verbally or by memorandum. Any 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 the Planning and Zoning Department. By no later than the commencement of the final hearing leading to a final decision on the pending quasi-judicial matter by the town official’s Council or Board, the memorandum shall be made 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 considered by the town official to be material to the town official’s decision in the pending quasi-judicial matter.
      (4)   Town officials who are members of the Town Board of Adjustment or the Building Board of Adjustments and Appeals shall not be permitted to engage in ex parte communications with members of the public or to discuss or receive opinions from an expert witness or consultant regarding a quasi-judicial matter pending before the town official’s Board at other than a formally noticed hearing of the Council or Board on which the member serves. In the event that a town official who is a member of the Town Board of Adjustment or the Building Board of Adjustments and appeals engages in an ex parte communication with a member of the public or receives an opinion from an expert witness or consultant, regarding a matter pending before the Board on which the town official serves as a member, the town official is required to disclose the ex parte communication or opinion received from the expert witness or consultant in the manner set forth in division (C)(3) above.
   (D)   Oral or written communications between town staff and town officials.  Town officials may discuss quasi-judicial matters pending before the Council or Board on which the town official serves with town staff; provided that the town official makes a disclosure pursuant to division (C)(3) above.
   (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 Council or Board on which the town official serves; provided, that the town official adheres to the disclosure requirements set forth in division (C)(3) above. Any disclosure of a site visit pursuant to division (C)(3) above 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 the 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 Council or Board on which the town official serves. Immediately upon 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 in the Planning and Zoning Department.
   (G)   Planning and Zoning Department file.  All correspondence, mail or written communications reviewed by town officials prior to the final hearing on a pending quasi-judicial matter shall be placed in the official file regarding the matter and maintained by the Planning and Zoning Department. The 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 division (C)(3)(b) above, 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, the town planner shall make the correspondence, mail, written communications or other matters, and any disclosure memoranda placed in the official, a part of the record. All of the foregoing documents shall be received by the Council or Board as evidence, 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 a time that a disclosure regarding an ex parte communication, receipt of an expert opinion, site visit or review of mail, correspondence or other written communication is made a part of the record at a hearing, 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 and provide contrasting information, evidence or views.
(Ord. 2002-02, passed 6-25-2002)