DesotoCountyFL

Ordinance
2017-20

Ordinance amending quasi judicial procedures

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Category:Ordinance

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Res/Ord Body

 

DESOTO COUNTY, FLORIDA

ORDINANCE NO.  2017-_____

 

AN ORDINANCE OF DESOTO COUNTY, FLORIDA, CONCERNING QUASI-JUDICIAL HEARINGS; PROVIDING FOR SCOPE AND APPLICABILITY, PRELIMINARY MATTERS AND PRESENTATION OF EVIDENCE; PROVIDING FOR ALTERNATE PROCEDURES APPLICABLE TO SPECIFIED HEARINGS INCLUDING PREFILING OF EXHIBITS, INTERVENTION, EXPERT TESTIMONY AND PRESENTATION OF EVIDENCE; PROVIDING FOR SEVERABILITY, REPEAL OF CONFLICTING ORDINANCES, CODIFICATION AND AN EFFECTIVE DATE.

 

              WHEREAS,               the DeSoto County Board of County Commissioners (“Board”) has adopted the Land Development Regulations (“LDR”) which are included in the Desoto County Code of Ordinances (“Code”) as Chapter 20; and

 

              WHEREAS, Sections 20-1401 through 20-1403 of the Code establish procedures to be followed in quasi-judicial hearings; and

 

              WHEREAS, the Board finds there is a need to clarify and distinguish the procedures by which evidentiary and procedural issues and objections will be handled in quasi-judicial hearings which do and do not present complex issues and expert testimony from multiple witnesses; and 

 

WHEREAS, the Board finds that the rights of all persons and parties participating in quasi-judicial hearings will be better protected if the procedures concerning quasi-judicial hearings are amended to establish a process to be followed in more complex, specified hearings held by the Board that allows party intervention, prefiling of exhibits and qualification of expert witnesses; and

 

              WHEREAS, the Board hereby finds that this Ordinance advances an important government purpose by clarifying quasi-judicial hearing procedures and requirements; and

 

              WHEREAS, the Board hereby finds that this ordinance is in the public interest, promotes the public welfare, and that adoption of this Ordinance is a proper exercise of the County’s police powers.

 

              NOW THEREFORE, be it ordained by the Board of County Commissioners of DeSoto County, Florida, as follows:

 

 

 

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Section 1.   Sections 20-1401, 20-1402 and 20-1403 of the Code of Ordinances are amended to read as follows:

Sec. 20-1401. - Scope and applicability.

(a)   These procedures shall apply to all quasi-judicial hearings held by the Board of County Commissioners, the Planning Commission, and any other board or commission which holds quasi-judicial hearings; provided that the Board may determine by Resolution that alternate procedures as set forth in Sec. 20-1404 shall apply to specified proceedings held by the Board. The County Attorney shall determine which matters are quasi-judicial in nature and shall direct the Board Clerk to designate such matters on the agenda.

 

(b)  The chairman or other presiding officer shall conduct the proceedings and maintain order. Hearings shall be conducted informally, but in a courteous and professional manner.

 

(c)  Failure to strictly adhere to these procedures shall not invalidate any action of a County board or commission.

                  Sec. 20-1402. - Preliminary matters.

(a)  The County Attorney shall represent the Board of County Commissioners, the Planning Commission, or other County board or commission, and shall advise the County board or commission as to evidentiary and procedural issues and objections, the applicable law, and necessary factual findings.

 

(b)  In all quasi-judicial proceedings, the applicant shall bear the burden of demonstrating by competent and substantial evidence that the application satisfies the standards and requirements of the LDRs and the Comprehensive Plan.

 

(c)  Prior to the start of any quasi-judicial hearing, each board or commission member shall disclose any ex parte communications which should be brought to the attention of the public and the board or commission.

 

(d)  Any member of the public wishing to testify must complete a card and present it to the board or commission clerk. The purpose of testimony is to present competent and substantial evidence which may be considered by the board or commission.

 

(e)  Anyone wishing to testify must declare that he or she will testify truthfully by taking an oath or affirmation prior to testifying.

 

 

 

 

 

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(f)  Opinion testimony will only be allowed by witnesses who have been qualified and accepted as experts.

 

(g)  At any time during the proceedings, any member of the board or commission, or the County Attorney, may ask questions of the applicant, witnesses who testify, or County staff.

 

(h)  All decisions by a County board or commission shall be based on the record of the evidence presented to it at the hearing, which shall include testimony of all witnesses, exhibits and other evidence presented.  Strict rules of evidence shall not apply, but evidence must be competent, substantial and relevant to the issues before the County board or commission.

     Sec. 20-1403. - Presentation and hearing.

(a)  Conduct of hearing. The hearing shall be conducted in the following manner:

 

(1)  Open hearing.

 

(2)  County staff presentation of staff report.

 

(3)  Applicant presentation in support of application.

 

(4)  Other proponents of the application.

 

(5)  Opponents of the application.

 

(6)  Rebuttal by applicant and County staff.

 

(7)  Close hearing and commence deliberations.

 

(b)  Cross examination of witnesses. After each witness testifies, cross examination of the witness is permitted by County staff and the applicant or applicant's representative about matters to which the witness testified.  Members of the public may direct questions to the Board concerning testimony given by witnesses.  Members of the Board may ask witnesses to respond to such questions.

 

(c)  Chairman or Presiding Officer. The chairman or presiding officer shall at all times control the conduct of the hearing, may set time limits on testimony, may exercise his or her discretion regarding the order of presentation of testimony, and may exclude testimony or evidence that is irrelevant, immaterial, incompetent, unreliable or unduly repetitious. The County Attorney shall advise the chairman or presiding officer on such matters.

 

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Section 2.   Section 20-1404 is approved and adopted as follows:

 

Sec. 20-1404.- Procedures for specified hearings before the Board of County Commissioners.

 

(a)  If the Board determines that issues to be presented at a hearing are complex and likely to result in extensive expert testimony and/or requests by individuals or groups to present testimony, exhibits and cross examine witnesses, thereby resulting in the likelihood of a lengthy, multi-day hearing, the Board may decide that these alternate procedures shall be followed by adopting a Resolution at least forty-five (45) calendar days prior to commencement of the hearing declaring that the procedures set forth in this section shall apply in a specified hearing.  The Resolution shall be posted on the County’s webpage and published in a newspaper at least twenty-eight (28) calendar days prior to commencement of the hearing.

 

(b)  Scope and applicability.  Sec 20-1401 shall apply to specified hearings.

 

(c)  Preliminary matters.  The following preliminary matters shall apply in specified hearings in addition to those set forth in Sec. 20-1402:

 

(1)  At least fourteen (14) calendar days prior to the hearing, the applicant shall pre-file with the Development Department copies of all exhibits (other than rebuttal exhibits) that will be presented at the hearing, the names, mailing and email addresses, and phone numbers of all witnesses who will be called to testify on their behalf, including resumes of any witness to be called as an expert, and a summary of their expert opinion testimony. These required documents may be pre-filed in electronic format with two (2) hard copies of each document, or alternatively eight (8) hard copies of each document may be filed.   

 

(2)  Intervention in specified hearings

 

a.              Intervention is not a matter of right but may be granted in the sound discretion of the Board.  If granted, intervention is subordinate to, and in recognition of, the propriety of the main proceeding. An intervenor takes the proceeding and the issues as they exist and may not introduce new issues.

 

b.              Any person or organization requesting the right to present testimony, exhibits, and/or to cross examine witnesses, must file a written request to intervene with the Development Department at least fourteen (14) calendar days prior to the hearing which includes: (1) a detailed statement of their interest in the application being considered and how that interest differs from the interest of the public at large; (2) argument in favor or against the application; (3) copies of all exhibits (other than rebuttal exhibits) that will be presented at the hearing; and (4) the names, mailing and email addresses, and phone numbers of all witnesses who will be called to testify on their behalf, including resumes of any

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witness to be called as an expert, and a summary of their expert opinion testimony.  These required documents may be pre-filed in electronic format with two (2) hard copies of each document, or alternatively eight (8) hard copies of each document may be filed.

 

(3)  If a member of the public wishes to testify as an expert, at least fourteen (14) calendar days prior to the hearing, he or she must provide the Development Department with copies of their resume, summary of expert opinion testimony, and their exhibits (other than rebuttal exhibits). These required documents may be pre-filed in electronic format with two (2) hard copies of each document, or alternatively eight (8) hard copies of each document may be filed.

 

(d)   Presentation and hearing.  The following shall apply in specified hearings in lieu of the procedure set forth in Sec 20-1403:

 

(1)  Conduct of hearing. The hearing shall be conducted in the following manner:

 

a. Open hearing.

     

b. Rulings by chairman or presiding officer on intervention, expert witness qualifications and other preliminary matters

 

c. County staff presentation of staff report.

 

d. Applicant presentation in support of application.

 

e. Intervenor in favor of the application.

 

f. Intervenor opposed to the application.

 

g. Public testimony as to facts and qualified expert opinions.

 

h. Rebuttal testimony and exhibits, and closing argument by intervenor.

 

i. Rebuttal testimony and exhibits, and closing argument by applicant.

 

j. Rebuttal testimony and exhibits, and closing argument by County staff.

 

k. Close hearing and commence deliberations.

 

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(2)  Cross examination of witnesses. After each witness testifies, cross examination of the witness is permitted about matters to which the witness testified by members of the Board, County staff, and on behalf of the applicant and intervenor.  Members of the public may direct questions to the Board concerning testimony given by witnesses.  Members of the Board may ask witnesses to respond to such questions.

 

(3)  Chairman or Presiding Officer. The chairman or presiding officer shall at all times control the conduct of the hearing, rule on requests to intervene, requests by witnesses to be accepted as experts, and requests to modify time or other requirements if good cause is shown.  The chairman or presiding officer may set time limits on testimony and the length of hearing on any day, may exercise his or her discretion regarding the order of presentation of testimony, and may exclude testimony or evidence that is irrelevant, immaterial, incompetent, unreliable or unduly repetitious. The County Attorney shall advise the chairman or presiding officer on such matters.

 

Section 3.  Severability.

              If any provision of this Ordinance or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable.

Section 4.  Repeal.

              All ordinances, resolutions, official determinations or parts thereof previously adopted or entered by the County in conflict with this Ordinance are hereby repealed to the extent inconsistent herewith.

 

Section 5Code of Ordinances.

 

              This Ordinance shall be included in and become part of the DeSoto County Code of Ordinances.             

 

Section 6.  Effective Date.

              This Ordinance takes effect immediately upon adoption and filing with the Secretary of State.

 

PASSED AND DULY ADOPTED in regular session, by the BOARD OF COUNTY COMMISSIONERS OF DESOTO COUNTY, FLORIDA, this 28th day of November 2017.

 

 

 

 

 

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                                                                                                                                                                                      BOARD OF COUNTY COMMISSIONERS

ATTEST:                                                                                                                                                          OF DESOTO COUNTY, FLORIDA

 

___________________________                                                        By:_________________________

Mandy Hines                                                                                                                                                

County Administrator                                                                                                Chairman                                                                                                                             

                                                                                                                                                                                                   

Approved as to form and legal sufficiency:

 

____________________________

Donald D. Conn

County Attorney

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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