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HomeMy WebLinkAbout08241994BOA City of Sebastian 1225 MAIN STREET g SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 AGENDA BOARD OF ADJUSTMENT NEDNESDAY, AUGUST 24, 1994 6:30 P.M. 2. 3. 4. 7. 8. 9. CAI'L TO ORDER PLEDGE (II".'" ALLEGIANCE ROLL CAroL OLD BUSINESS: ACCEPT MINUTES OF MAY_ 3, 1.994 APPROVE MINUTES OF JULY 1_3, 1994 NEW BUSINESS: PUBLIC HEARING DAVE'. COSTA, ].N REGARDS TO LOT 15, BLOCK 292, SEBASTIAN HIGHLANDS UNIT ,l]_, IS REQUESTING A VARIANCE FROM SECTION 20A-5.6B OF THE I,AND DEVELOPMENT CODE TO Al, LOW A WELL IN A ERONT YARD, WHEREAS THE CODE REQU'IRF, S THE PLACEMENT OF A WELL WIT[tIN EITHER THE PORTION OF TIlE SIDE YARD THAT 1S NOT FORWARD DE THE FRONT BUILDING LINE OR WITHIN THE RE, AR YARD. CtlAIRMANS MATTERS MEMBERS MATTbR~. BUILDING OEFiCIAL MATTERS ADJOURN BY THE ANY' PERSON WHO DECIDE~ TO APPEAL ANY DECISION MADE BOARD OF ADJUSTMENT WITH HESPECT TO ANY MATTER CONSIDERF, D AT TH. IS MEETING (OR HEARING) W'I. LI, NEED A RECORD DE THE 17 · RECORD O pROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM ' "~ -'S , '-" 'I'ESTIMON~ 'rttE PROCEEI)INGS 'I.S HADE, ~H!CH RECORD 1NCLbi)lz,. ~,Hr'., AND EVIDENCE ['PON WHICH THE APPEAL iS TO BE HEARD. (296.01.05 F. S · } City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 PUBLIC MEETING CITY OF SEBASTIAN 1225 MAIN STREET INDIAN RIVER COUNTY FLORIDA THE BOARD 01:' ADJUSTMENT OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, WiI.,L HOI,D A MEETING ON AUGUST 24, 1994, AT 6:30 P.M. IN THE CITY COUNCIL CHAMBERS. KATHRY'N M. O'HALLORAN CITY CLERK CTTY OF SEBASTIAN, FLORIDA NOTE: ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE BOARD OF ADJUSTMENT WITH RESPECT TO ANY MATTER CONS]iDERED AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES TIlE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0].05 F.S.) IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT (407) 589-533{) AT LEAST 48 HOURS IN ADVANCE OF THE MEETING. City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 PUBLIC NOTICE CITY OF SEBASTIAN ]_225 MAIN STREET INDIAN RIVER COUNTY FLORIDA THE BOARD OF ADJUSTMENT OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, WILl, CONDUCT A PUBLIC HEARING AUGUST 24, 1994, AT 6:30 P.M. IN THE CITY COUNCIL CHAMBERS LOCATED AT 1225 MAIN STREET, SEBASTIAN, FLORIDA, TO CONSIDER A VARIANCE FROM SECTION 20A-5.6B OF THE SEBASTIAN LAND DEVELOPMENT CODE. DAVE COSTA, IN REGARDS 'to I, OT 15, BLOCK 292, SEBASTIAN HIGHLANDS UNiT 11, iS REQUESTING A VARIANCE TO Al, LOW A WELL IN A FRONT YARD, WHEREAS THE CODE REQUIRES THE PLACEMENT OF A WELL WITHIN EITHER THE PORTION OF THE SIDE YARD THAT IS NOT FORWARD OF THE ERONT BUILDING LINE OR WITHIN THE REAR YARD. KATHYRN M. O'HALLORAN CITY C' ..[,LRK CITY OF SEBASTIAN ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE BOARD OF ADJUSTMENT WITH RESPECT TO ANY MATTER CONSIDERED AT THiS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECC)RIi) INCIi,['IDES THE TESTIMC)NY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0105 F.S.) .IN COMPIi.,[ANCE WITH T[tE AMERICANS WITH DISABILIT.'IES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT (407) 589-5330 AT LEAST 48 HOURS IN ADVANCE O1'.' THE MEF/I'ING. PUBLISHED: August 9, 1994 Augush 16, 1994 City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 13 FAX (407) 589-5570 MINUTES BOARD OF ADJUSTMENT WEDNESDAY, AUGUST 24, 1994 - 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAiN STREET, SEBASTIAN, FLORIDA Mayor Firtion called the Board of Adjustment to order at 6:30 p.m. The Pledge of Allegiance was recited. Council Present: Mayor Arthur L. Firfion Vice Mayor Carolyn Corem Mrs. Norma Damp Mr. Robert Freeland Mr. Frank Oberbeck Staff Present: City Manager, Joel Koford City Attorney, Clifford McClelland, Jr. City Clerk, Kathryn O'Halloran Director of Community Development Brace Cooper, Deputy City Clerk, Sally Maio Board of Adjustment Meeting August 24, 1994 Page Two 4. OLD BUSINESS Accept Minutes of May 3_~ 1994 ADDrove Minutes of July 13. 1994 MOTION by Damp/Freeland I make a motion that we approve the minutes of May 3, 1994 and July 13, 1994. Mr. Oberbeck noted that city Council did not attend the May 3, 1994 meeting. The City Clerk advised that the request was to "accept" those minutes. ROLL CALL: Mrs. Corum - aye Mrs. Damp - aye Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye MOTION CARRIED 5-0 5. NEW BUSINESS: PUBLIC HEARING Dave Costal Re: Lot 15, Block ~ Sebastian Hiqhlands, Unit 11 - Variance from Section 20A-5.6B of the LDC to Allow a Well in a Front Yard, Whereas Code Requires Placement of Well Within Either the Portion o__f th~ Side Yard That is Not Forward of the Front Building Line or Within the Rear Yard. The City Attorney submitted a letter dated August 24, 1994 regarding quasi-judicial matters (see attached) and strongly suggested that City Council adopt quasi- judicial rules for future matters. He directed that the City Clerk swear in all who address the Board of Adjustment in this matter. The City Clerk swore in Director of Community Development, Bruce Cooper. The Director of Community Development presented an overhead exhibiting the proposed well, and, subsequent to verifying compliance with provisions of Section 20A-11.2.d.3. of the Land Development Code relative to criteria for granting variances, recommended approval. Board of Adjustment August 24, 1994 Page Three The applicant was not in attendance. Mayor Firtion invited public input and there was no response. The Director of Community Development responded to City Council inquiries regarding the well's proximity to City right-of-way and possible future liability relative to stormwater. The City Attorney advised that althouqh remote, case law indicates that the City could ~ave liability if it was found to be negligent in the operation or maintenance of a stormwater system. MOTION by Oberbeck/Corum I would move to approve the variance for Mr. Dave Costa in regard to Lot 15, Block 292, Sebastian Highlands Unit 11, basing on the documentation and information afforded us by staff. ROLL CALL: Mrs. Damp - aye Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye Mrs. Corum - aye MOTION CARRIED 5-0 6. CCHAIRMAN'S MAT~TERS None. 7. MEMBERS, MAT____TERS None. 8. BUILDIN~G OFFICIAL MATTERS None. Being no further business, Mayor Firtion adjourned the Board of Adjustment meeting at 6:55 p.m. Board of Adjustment August 24, 1994 Page Four Approved at the ~_. Meeting. , 199~, City Council Ka~hry~ Mi O'Halloran, CMC/AAE ~fCity Clerk City of Sebastian 1225 MAIN STREET n SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 2. 3. 4. 7. 8. 9. AGENDA BOARD OF ADJUSTMENT WEDNESDAY, AUGUST 24, 1994 6:30 P.M. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OLD BUSINESS: ACCEPT MINUTES OF MAY 3, 1994 APPROVE MINUTES OF JULY 13, 1994 NEW BUSINESS: PUBLIC HEARING CHAIRMANS MATTERS MEMBERS MATTERS BUILDING OFFICIAL MATTERS DAVE COSTA, IN REGARDS TO LOT 15, BLOCK 292, SEBASTIAN HIGHLANDS UNIT 11, IS REQUESTING A VARIANCE FROM SECTION 20A-5.6B OF THE LAND DEVELOPMENT CODE TO ALLOW A WELL IN A FRONT YARD, WHEREAS THE CODE REQUIRES THE PLACEMENT OF A WELL WITHIN EITHER THE PORTION OF THE SIDE YARD THAT IS NOT FORWARD OF THE FRONT BUILDING LINE OR WITHIN THE REAR YARD. ADJOURN ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE BOARD OF ADJUSTMENT WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0105 F.S.) EAcl oF: BOARD OF ADJUSTMENT REGULAR MEETING MAY 3, 1994, 3:00 P.M. THE MEETING WAS CALLED TO ORDER BY CHAIRMAN SHISGAL AT 3:03 P.M. THE PLEDGE OF ALLEGIANCE WAS LED BY MR. SHISGAL. ROLL CALL: PRESENT: MR. SHISGAL, CHAIRMAN MR. HUSK MR. PRICE MR. SPROUL, ALTERNATE ABSENT: MR. VILARDI, EXCUSED MR. BUECHLING, EXCUSED ALSO PRESENT: JAN KING, ZONING TECHNICIAN. IT IS NOTED THAT MR. SPROUL WILL ACT IN BEHALF OF MR. VILARDI WHO IS A REGULAR MEMBER. OLD BUSINESS: A MOTION WAS MADE BY MR. PRICE TO ACCEPT THE MINUTES OF THE MEETING. SECONDED BY MR. SPROUL. ROLL CALL WAS MADE, UNANIMOUS VOTE 4-0. PUBLIC HEARING: DON & LISA PARKER, IN REGARDS TO LOTS 10 & 11, BLOCK 59, SEBASTIAN HIGHLANDS UNITS #2, IS REQUESTING A VARIANCE FROM SECTION 20A-5.9 (C)(2) OF THE LAND DEVELOPMENT CODE TO ALLOW A TEN (10) FOOT FENCE ACROSS THE REAR AND SIDES OF THE LOTS, WHEREAS THE CODE WOULD PROHIBIT SUCH A FENCE FROM EXCEEDING EIGHT (8) FEET IN HEIGHT. THE APPLICANT WAS PRESENT. MR. PARKER STATED THAT PUTTING A STANDARD 6' FENCE AT GRADE LEVEL IN THE BACK TO WHERE APPEARANCE WISE IT LOOKS DECENT IT WOULD COME BETWEEN 9' AND 10'. FURTHERMORE THAT THERE IS NOT ANY PRIVACY IN THAT AREA. MRS. KING SPOKE IN BEHALF OF STAFF AND STATED THAT THERE WAS A SIMILAR VARIANCE TO THIS AND THE REQUEST WAS DUE TO THE PROPERTY BEING HIGHER THAN THE LOT BEHIND IT. THERE WAS A LARGE DROP OFF AT THE PROPERTY LINE AND ONCE THE FENCE WAS INSTALLED IT LOST ALL VALUE OF THE FACT THAT IT WAS 6' HIGH AND APPEARED ONLY TO BE 4' HIGH. BOARD OF ADJUSTMENT REGULAR MEETING OF MAY 3, 1994 PAGE TWO THE PUBLIC HEARING WAS OPENED AND CLOSED AT 3:19 P.M. DUE TO NO PUBLIC INPUT. A MOTION WAS MADE BY MR. PRICE TO ALLOW THE MAN TO DO IT WITH THE CONDITION THAT VISUALLY IT APPEARS TO BE A LEVEL FENCE. SECONDED BY MR. SPROUL. ROLL CALL WAS MADE, UNANIMOUS VOTE 4-0. NEW BUSINESS: NONE CHAIRMANS MATTERS: MR. SHISGAL BROUGHT UP THE FACT THAT THERE WILL NOT BE ENOUGH MEMBERS TO HAVE THE NEXT MEETING. A MOTION WAS MADE BY MR. SPROUL THAT THE CITY COUNCIL CONSIDER APPOINTING OR ALLOWING ANY MEMBER OF THE PLANNING AND ZONING BOARD TO SERVE AS AN ALTERNATE ON THE BOARD OF ADJUSTMENT WHEN THE BOARD OF ADJUSTMENT DOES NOT HAVE SUFFICIENT MEMBERS TO HOLD MEETINGS. SECONDED BY MR. SHISGAL. ROLL CALL WAS MADE, UNANIMOUS VOTE 4-0. COMMITTEE MATTERS: RESIGNATION OF FRED BUECHLiNG AS REGULAR MEMBER. MR. SHISGAL MENTIONED THAT THE BOARD OF ADJUSTMENT APPRECIATED THE TIME HE SERVED ON THE BOARD AND WISH HIM ALL THE BEST AND A QUICK RECOVERY. MR. SPROUL INFORMED THE MEMBERS THAT HE WILL BE RESIGNING FROM THE BOARD AND WISH HIM THE BEST OF LUCK AS WELL. A MOTION WAS MADE BY MR. PRICE TO ACCEPT THE RESIGNATION OF MR. BUECHLING. SECONDED BY MR. HUSK. ROLL CALL WAS MADE, UNANIMOUS VOTE 4-0. MR. SPROUL BROUGHT UP SIGN-OFFS FOR SIDE YARD EASEMENTS REGARDING FENCES AND THEY SHOULD NOT BE REQUIRED ANY LONGER. BUILDING OFFICIAL MATTERS: NONE MEETING ADJOURNED AT 3:25 P.M. City of Sebastian 1225 MAIN STREET 13 SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 n FAX (407) 589-$570 MINUTES BOARD OF ADJUSTMENT WEDNESDAY, JULY 13, 1994 - 6:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL PROPOSED ORDINANCES AND INFORMATION ON ITEMS BELOW MAY BE INSPECTED IN Tile OFFICE OF TilE CITY CLERK, CITY HALL, 1225 MAIN STREET, SEBASTIAN, FLORIDA. Mayor Firtion called the Board of Adjustment meeting to order at 6:00 p.m. 2. The Pledge of Allegiance was recited. 3. ROL~ ~ALL Members Staff Present: Mayor Arthur Firtion Vice Mayor Carolyn Corum Mrs. Norma Damp ~ Mr. Robert Freeland Mr. Frank Oberbeck Present: City Manager, Joel L. Koford city Clerk, Kathryn M. O'Halloran Assistant City Attorney, Richard Torpy Director of Community Development, Bruce Cooper Deputy City Clerk, Sally Maio Board of Adjustment July 13, 1994 Page Two 4. OL.__~D B~USINES,S None. 5. NEW BUSINESS: PUBLi~ HEARING James an_~d ~ P~aaterson - I~n Re a_~ to Lo__~t Block 27_~2 Sebastian ~ Unlit 10 i_~s ~ ~ Variance fro____~m Sectio~_____Rn 20A-3.4(D) (6)(b~ o_~f th___ge Lan___~d ~ Cod___ge t_9o Allow a Nin____ge Fo_F_~ot Tw~o and Three.-Quarte~r Inch ~9..23'~ Side Yard SetbackL Whereas the Code ~ a Ten Foot Side Yard Setback - ~ The Director of Community Development explained criteria for determining the variance, presented an overhead of the subject easement, and gave a brief presentation. Frank Cormier, Sunshine Quality Construction, addressed City Council. In reponse to Mrs. Damp, the Director of Community Development advised that the survey error was discovered after the slab was poured and framing and trusses were in place and the variance was then applied for. Discussion took place relative to concurrence of the abutting property owner to grant one foot of easement, lack of submittal of a slab survey, and variance criteria. MOTION by Oberbeck/Freeland i would move for the approval of ~he variance as requested on the Peterson property - L t 30, Block 272, Unit 10 based on the evidence offered in the record. TAPE I - SIDE II (7:50 p.m.) Tape changed during motion. ROLL CALL: Mrs. Corum - nay Mrs. Damp - nay Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye MOTION CARRIED 3-2 (Corum, Damp - nay) Board of Adjustment July 13, 1994 Page Three The applicant was advised that he would have to provide appropriate documents relative to the granting of the easement. B. Christ the ~ Lutheran Churchz In e~ _.to %301 Fel___~lsmere Roa__~d i_~s ~ ~ yariance From Section 20A-15.7(a) (3~ of ~he Land ~ Code to Construct a S_iqR Approximately 50 ~quare Feet in ~ ~h~reas the Code Allows a Maximum of 20 Square Fee~ in Size. The Director of Community Development gave a brief presentation. City Council discussion followed. MOTION by Oberbeck/Damp I would move that we approve the request for variance from Christ the King Lutheran Church. Mr. Oberbeck reiterated the intent of his motion. ROLL CALL: Mrs. Damp - aye Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye Mrs. Corum - nay MOTION CARRIED 4-1 (Corum - nay) Being no further business, Mayor Firtion adjourned the Board of Adjustment meeting at Approved at the - Arthur L. Kat~ryn M. 0 H~i~oranf cM'C/AAE .City Clerk , 1994 , q~ Meeting. Firtion, Mayor City of Sebastian 1225 MAIN STREET g SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 r, FAX (407) 589-5570 PUBLIC NOTICE CITY OF SEBASTIAN 1225 MAIN STREET INDIAN RIVER COUNTY FLORIDA THE BOARD OF ADJUSTMENT OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, WILL CONDUCT A PUBLIC HEARING AUGUST 24, 1994, AT 6:30 P.M. IN THE CITY COUNCIL CHAMBERS LOCATED AT 1225 MAIN STREET, SEBASTIAN, FLORIDA, TO CONSIDER A VARIANCE FROM SECTION 20A-5.6B OF THE SEBASTIAN LAND DEVELOPMENT CODE. DAVE COSTA, IN REGARDS TO LOT 15, BLOCK 292, SEBASTIAN HIGHLANDS UNIT 11, IS REQUESTING A VARIANCE TO ALLOW A WELL IN A FRONT YARD, WHEREAS THE CODE REQUIRES THE PLACEMENT OF A WELL WITHIN EITHER THE PORTION OF THE SIDE YARD THAT IS NOT FORWARD OF THE FRONT BUILDING LINE OR WITHIN TIlE REAR YARD. KATHYRN M. O'HALLORAN CITY CLERK CITY OF SEBASTIAN ANY PERSON WHO DECIDES TO APPEAl, ANY DECISION MADE BY THE BOARD OF ADJUSTMENT WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0105 F.S.) IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT (407) 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THE MEETING. PUBLISHED: August. 9, 1994 A'ugust 16, 1994 ~tated, 7q - 00~ ~Appl iaa tic, No. .... Of Adjust,n~-nt of the resolve the matter · hi~ Application i~ ~or ~ ...... V~ciar Speo'ial Exoupti0n. (Specify c.o~reot d~ ~P~CIPY ~L ¢UDE PROVISIONS WHICH .YOU ~lgnat~on. ) ARE RI~.QUESTING TO BE VARIED ILDING OPPICIAL THAT YOU IP XPI:LICANT I~ O'£III~R %~IAN R~COI{D OWN~ AUTI~ORIZA'£ION FROM OWNER TO SUBMIT TH ADDITIONAL COMMENTS: ..... ,.-, =...~ ....... R OF PARC]~L ATTACH WRITTEN $ APPLICATION ON OWNER'S prooedurea, hpl;,1 ication, )~ Applicant il~ dppl~abi~). outllnln9 ~-he Bonrd~a ) mU,~t accompany this CUSTOM BUILDERfi 4~4 Bywood Avenue TO WIiOM 1'1 MAY CONCERN, §ebastlen, FL 3 ~g~ ~umtom Bu£1der~, inc. the aU ~ mc~ o~ my b~h~lf ~nd represent , INC. ~7 ,~dll i ill >~ ~ ~- ' ~ ~ z ~z m ~ <_ .M ~z ~_~ < ~¢ ~ 8~~ >~-~. _ u o =~B=_ ~ ~ > o ~ -- o o~ ~ ~ ~ o~z ~ ~ 0 ~m ~ 0~ ~ ~ z ~ mN Oz ~ Z ~ LAW' OFFICES OF POTTE~, i~CCLELLAND, lVf--&~K$ ~: HE:_a. LY, P.-~. H~aaY A. Jo~s O~ Co u~s~I. SU~T~ ~00 ?00 So~H B~cOC~ STm~ET POST O~CE Box ~2~ (4o7) g~- ~70o August 24, 1994 Mr. Joel L. Koford City Manager City of Sebastian 1225 Main Street sebastian, FL 32958 Re: Quasi-Judicial Hearings Dear Mr. Koford: On May 20, 1994, the Florida Supreme Court in the case of par~ Commerce A~socia~es...v. city of pelrav_ Beach, 636 So.2d 12 denied the motion for rehearing filed by Delray Beauh. The impact of this decision was to extend the requirements for a quasi-judicial hearin~ established in Board of.County Commissi°ners v..Snyde~, 627 So.2d 469 (Fla. 1993) to building permits, site plans and other development orders issued by municipalities. This ruling adds to the many types of land development orders have been held as quasi- judicial by the Courts as follows: 1. Variances: Nance v. Town of Indialantic, 419 So.2d 1041 (Fla. 1982). 2. CQnditional Use Permits; ~pecial Exceptions~ and..SDecial Permit~: Irvine..v. Duval County P%anpinq C~mmissio~, 495 So.2d 167 (Fla. 1986; see also Rural New Town, Inc.. v. Palm Beach CountY, 315 So.2d 478 (Fla. 4th DCA 1975). 3. Plat Approvals: S~Southern Cogperati.ve De¥. Fund v. ~, 696 F.2d 1347. 4. Revocatiqn Qf Landf%ll Permits: HerDando County v~.. Williams .CorD., 630 So.2d 1155 (Fla. 5th DCA 1994). In order to comply with the latest judicial pronouncements in this area of the law many local governments are adopting procedures Mr. Joel L. Koford city Manager August 24, 1994 Page 2 for quasi-judicial hearings. A quasi-judicial proceeding imposes on a local government minimum requirements as follows: 1. ot~: The parties must be provided notice of the hearing. 2. O~portunitv to be heard: The parties must be provided an opportunity to be heard at the hearing. 3. ~resentation of E~idence: The parties must be able to present evidence and the evidence must be presented in a manner as follows: A. Burden of. Proof: The landowner seeking to rezone property has the burden of proving that the proposal is consistent with the Comprehensive Plan and complies with all procedural requirements of the zoning ordinance. At that point the burden shifts to the governmental body to demonstrate that maintaining the existing zoning classification with respect to the property accomplishes a legitimate public purpose. The local government will have the burden of showing that the refusal to rezone the property is not arbitrary, capricious or unreasonable. . If the local government carries its burden, the application should be denied. ~, supra. B. Comprehensive Plan Compliancg: The Court will examine the decision' of the governmental body to determine if there is strict compliance with the Comprehensive Plan. Macha~o v. Musqrave, 519 So.2d 629 (Fla. 3rd DCA 1987). The proposed change cannot be inconsistent with the Comprehensive Plan or the Court will reverse the decision. C. Substantial competent Evidence: In order to sustain the Council's action upon review by the court, it must be shown that there was substantial competent evidence presented to the Council to support its ruling. ~ ~ount¥ CommiSsioners v. Snyder, 627 So.2d 469 (Fla. 1993). In Lee County v..Sunbelt Equities, 619 So.2d 996, 1002 (Fla. 2nd DCA 1993) the Court defi~ed ,,substantial competent evidence" as ,,evidence a reasonable mind could accept as adequate to support a conclusion." Mr. Joel L. Koford City Manager August 24, 1994 Page 3 While lay testimony about facts which the layman has personal knowledge is proper testimony, lay testimony about subjects a lay witness is not competent to testify about such as technical matters, or mere personal opinions do not constitute substantial, competent evidence. Graha~ companies v. Dade countY, case No. 93- 163-AP, (2 FLW Sup. 241, 242). A witness must be qualified as an expert to express an expert opinion and for the Court to consider the opinion as competent substantial evidence. The thrust of this requirement is that the courts carefully review matters in the record which are recommended by the City's professional staff or are presented in the form of expert land use, engineering and technical opinion testimony. The courts also scrutinize the record for.evidence that local government bodies or boards acting in a quasi-judicial capacity indulge ~n ,,government by applause meter" and are not basing their decisions on facts in the record. A..A. Profilgs,.. In~. v. ~ity o~ Ft. ~auderdale, 850 F.2d 1483 (llth circuit 1988). 4. Riqht of CrossrEx~.mination: Each party must have the right to cross-examine the witnesses who present testimony. ~ of A~Qpka v. Or~nqe CountY, 299 So.2d 657 (Fla. 4th DCA 1974). 5~ Sworn. Testimony: The Fourth District Court of Appeal in the C~itv of Apopka v. oranqe, county, 299 So.2d 657 (Fla. 4th DCA 1974) was critical of the fact that the Orange County Board of County Commissioners did not require that witnesses be placed under oath for a special exception hearing. The language was again cited with approval in Po!la~d ~... Palm. Beach ~ounty, 560 So.2d 1358 (Fla. 4th DCA 1990).. On the other hand, the city of St. Petersbur~ v. cardknal. Industries Dev., 493 So.2d 535 (Fla. 2nd DCA 1986) cite~ the ApoDka case and stated: "We know of no requirement that witnesses who appear before local governments in special exception proceedings must be sworn ,, With the conflict between the different District Courts of ~ppeal, a number of local governments are taking the conservative approach and requiring that witnesses be sworn before they testify at land use hearings. 6. Lobbyinq: The Jenninqs v. Dade Count~, 589 So.2d 1337 (Fla. 3rd DCA 1991) case held that upon proof of an e_~x part~ communication to local government board members, a presumption arises that the contact would be prejudicial to the other party in the case. E_~x p_arte communications generally are those communications between a party and a decision-maker where all possible adversarial parties have not been notified of the Mr. Joel L. Koford city Manager August 24, 1994 Page 4 discussions of the pending land use matter and have not had an opportunity to participate in such discussions. The aggrieved party will be entitled to a new 'hearing before the local government, unless it can be demonstrated that the ex parte communication was not, in fact, prejudicial. In 1994 the Florida Legislature considered a bill by the House Community Affairs Committee to limit the holdings of the Jen___n~ case. The bill failed to pass the legislature. The result of the ruling in this case is to require that any oral or written communication to a council member should be avoided on a development permit if it is a quasi-judicial matter. In the event such a communication is made, the communication should be placed on the record at the hearing. 7. Fa~ts in t.he Record.: A record must be made of the hearing before the local government body and the local government's decision must be rendered on the basis of the testimony and evidence in the record. See Batta~ia ...Fruit CO. v.. City of Ma~tlan.d., 530 So.2d 940 (Fla. 5th DCA 1988). The parties to the proceeding must be informed of all the facts on which the local government quasi-judicial body acts. Coral Reef.Nurserie..s, Inc. v:. Babcoc..~ co..., 410 So.2d 648 (Fla. 3rd DCA 1982). While the courts are imposing these new requirements on local' governments, the formality of the quasi-judicial hearing often does not appear to be "user friendly" to the general public. In order to facilitate citizen understanding of these requirements, our office would recommend the city council adopt the procedures for its quasi-judicial proceedings in written form. The procedures would be available to parties before any meeting. Prior to the conduct of any quasi-judicial hearings the presiding officer at council meetings would read a short statement to the public which would enhance party and public understanding of the proceedings and permit the council to make land use decisions in accordance with the new principles which are being articulated by the courts. If you have any questions, please contact me. Respectful ly, Clifton A. McClelland, Jr. CAM/tah