HomeMy WebLinkAboutM-02-1245CITY OF MIAMI
CITY ATTORNEY'S OFFICE
MEMORANDUM
TO: Priscilla A.
City Clerk
FROM:
City
DATE: October 29,
RE: Sewall P4 — Land Use change from CS to PR; Ex -parte communication; PAB
City Conimission Meeting of November 19, 2002.
Please include the attached e-mail as part of the official public record of this application,
and maintain the same available for public inspection. At the commencement of the public
hearing on this item by the City Commission, the complete substance of the e-mail should be
disclosed. At that time, if a party then expresses concern that it has been prejudiced by the
e-mail, that party should be allowed to cross examine the commissioners with regard to its
influence on their decision, if any. Furthermore, if necessary, additional time should then be
granted to that party to respond to the information contained therein, so as to avert a subsequent
claim of prejudice.
For further review of this issue and of the Jennings Rule in general, your attention is
directed to the attached copy of the City Attorney's Opinion No. MIA 98-023 (see attached).
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Attachments
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Department of Hearing Boards
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From: Dana Manner [mailto:dana.manner@att.net]
Sent: Thursday, October 17, 2002 1:48 PM
To: Sanchez, Joe
Cc: Gomez, Rosy; Internet Clerks; Regalado, Tomas; Gonzalez, Angel; Winton, John L.; Diaz, Manuel A.
(Mayor); Teele, Arthur; Gimenez, Carlos
Subject: Recommendation of Planning Advisory Board - Sewell Park Zoning Change
Dear Commissioner Joe,
As your appointee to the PAB, I would like to inform you of the outcome of the proposed change in zoning
for Sewell Park that we heard last night. The PAB's recommendation to the City Commission is for denial
of the change from "Conservation" (CS) to "Parks & Recreation" (PR). There was a large turnout of
citizens at the PAB hearing, all but one citizen who spoke was strongly opposed to the change.
As the maker of the motion for denial, I would like to share with you my reasoning for the
recommendation for denial:
1.) The park is a very valuable natural resource within the City, on the Miami River, with hardwood
hammocks, and other unique features which deserve conservation.
2.) A change of zoning to "PR" allows for of too many inappropriate land uses, or development that has
potentially adverse effects (something the Code requires us to control or eliminate). According to the
provisions of the Code "PR" allows for major structures to be built as conditional principal uses (e.g. City
Administrative Offices, Conference Centers, etc.), whereas this intensity of development is not permitted
in land designated "CS."
3.) Most importantly, if we chose to approve the change from "CS" to "PR," and later regretted the
decision, we could legally reverse the designation to CS at anytime. However, from a practical standpoint,
once the change is made to "PR" and the impact of any development takes place, we can never return
the land to its original state of conservation. There is no turning back once this decision is made, rare
hardwood trees are removed, and development is allowed. The impact of this decision will last for
generations to come.
There was a great deal of discussion about the plans to move the City's Police Equestrian stables and
operations to this site. This is, of course a noble civic cause to support, but from a strict "land use
perspective" (that the PAB charter requires to be out viewpoint), this change would allow for uses that
threaten destruction of valuable and scarce natural flora and other historical and natural resources unique
to our City. As a citizen, I am pleased that we have a Police Equestrian unit, Sewell Park however, is not
an appropriate location for it.
After hearing all of the facts, and careful consideration, the PAB recommends to the Commission that the
change from "CS" to "PR" be denied. I would strongly encourage you and the other honorable members
of the Commission and the Mayor follow our recommendation for denial, based on the reasoning above.
Let us work to find a more suitable place for the needs of the Police Department, while protecting the
interests of the public and conserving our rare natural resources.
Sincerely,
Mr. Dana L. Manner
Vice Chairman
Planning Advisory Board
City of Miami
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City Cierk
02-1245
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CITY OF NIIA I. --
CITY ATTORNEY'S k ICE
TO: Honorable May/'93-023)
t City Commission
FROM: Alejandro Vilar
DATE: December 11, 1
RE: Request for Leg
Ex parte Comm
. -a
Pursuant to the Commission's rest of November 17, 1998, this memorandum is presented
to you to clarify the current status of the law on the following issue:
THE JF.NMNGS RULE: MAY QUASI-JUDICIAL
OFFICERS ENGAGE IN EX PARTE COMMUNICATIONS
CONCERNING QUASI-JUDICIAL MATTERS?
• The answer to this question is in the negative.
The Third District Court of Appeal (which now includes among its members the attorney thei
represented the prevailing side in Jennings) declared that all ex parte communications with quasi-
judicial officers regarding matters which are quasi-judicial in nature are prohibited. The court stated
that such communications violate due process rights. Jennings v Dade County, 589 So.2d 1337
(Fla -3d DCA 1991), rev. den., 598 So.2d 75 (Fla. 1992).y
The Court found such communications to be "inherently improper" and "anathema to quasi-
judicial proceedings." Its very existence creates a rebuttable presumption of prejudice. If judicial
action regarding the prohibited communication is pursued, the decision of the quasi-judicial body will
be declared null and void and the complaining party will be entitled to a new hearing unless the
presumption is successfully rebutted by the city.
The "Jennings Rule" arose from Jennings v. Dade County, 589 So.2d 1337 (Fla. 3d DCA
1991), rev. den., 598 So.2d 75 (Fla. 1992). In Jennings, the Third District Court of Appeal
considered the effect of an ex parte communication by a lobbyist for the petitioner upon a decision by
the Mami-Dade County Commission in a quasi-judicial proceeding. The initial application for a
variance to allow a quick -oil change business on certain property was granted by the Zoning Appeals
Board. Mr. Jennings, the adjoining property owner, appealed the decision to the Mami-Dade
Please note that the due process issues which concerned the judiciary are grounded in federal and state
constitutions and are not resolved by a legislative enactment. Until such time as the Florida Constitution is
amended or the Florida Supreme Court overrules the Jennings decision, the law of this state is toot ex putt
contacts are prohibited. Cf. Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980). (A rownt attempt to amend the
Florida Constitution to specifically permit quasi-judicial ex parte contacts failed). Section 286.0115, Florida
Statutes (1997). contains two different methods by which. subsequent to adoption of resolution or ordinance
by the local governing body, ex parte communications could be allowed.
Submitted into the public
a;:. 02-1245
RE: MIA -98-023
Ex parte Commu_ in
December 11, 1498
Page 2
County Commission. Prior to hearing the appeal, some of the commissioners engaged in ex pane
communication with a lobbyist for the applicant. The county commission upheld the grant of
variance. Mr. Jennings then filed suit, alleging the communication by the lobbyist denied hits due
process under both the United States and Florida constitutions, as well as under the Citizens' Bell of
Rights, NGami-Dade County Charter. On appeal to the Third District Court of Appeal from the trial
court's dismissal of Jennings' claim, the court held that when an ex parte communication in a quasi-
judicial proceeding is alleged to be prejudicial, it will entitle the complaining party to maimain an
original equitable proceeding to establish its claim. It declared that in quasi-judicial zoning
proceedings, the parties must be able to present evidence, cross-examine witnesses and be informed
of all the facts upon which the commission acts.
i . What is a "quasi-judicial decision"?
Quasi-judicial decisions are those that have an impact on a limited number of persons or
property owners, where the decision is contingent on a fact or fists, and where the decision can be
functionally viewed as the application of policy, rather than the formulation or setting of policy. .v
x .
The Florida Supremg .Court set forth the following test, in a 1993 case involving a rezoning
decision:
"it is the character of the hearing that determines whether or not
board action is legislative or quasi-judicial.... Generally speaking,
legislative action results in the forgnulation of a general rule of
policy, whereas judicial action results in the kation of a general
Wile of policy."
Snyder Y. Board of County Commissioners, 627 So. 2d 469 (Fla. 1993) (emphasis added).
The Snyder case involved the denial of a request for rezoning a particular parcel of land from
general use to medium density multiple -family dwelling use. The proposed designation was
consistent with the policies of the comprehensive plan The Court determined the rezoning
application to be quasi-judicial.
This area of the law is still evolving, and the Snyder rule is being applied by lower courts to
an ever-increasing field of local government decisions.
Ex parte communication regarding quasi-judicial decisions is prohibited by the Jennings rule.
The following land use applications involve quasi-judicial decisions:
a. Variances
b. Special Exceptions
C. Major Use Special Permits
d. Appeals from administrative decisions regarding building
permits, special permits (Class I and Class In, Mrs and site plan reviews.
MM.
a r iri i kc 't� , public
a IILI I
p� r�. ,.son 02-1245
RE: MIA -98-023 December 11, 1998
Ex parte Comms *,on Poe 3
Quasi-leais�vdecisions are = subject to the ,(engem rule, and ex parte communication is
not prohibited with regard to these types of applications. The following applications involve quasi -
legislative decisions.
a. Comprehensive plan amendments
b. Zoning text amendment
C. Adoption of comprehensive plans except, possibly, those
directly related to the type of proposed small scale developments for which
the 1995 legislature amended Sec. 163.3187(1 xe) Fla. Stat. (1995)
d. Adoption of zoning ordinance covering entire city.
Rezoning decisions: may be either quasi-judicial or quasi -legislative, depending on the
character of the hearing. A rezoning is quasi -legislative in nature when it affects a large portion of
the public, is comprehensive in nature, and affects a large area of land (.Snyider� It may be quasi
judicial in nature when it involves a relatively small area of land and is the application of existing
policy rather than the formulation of a general rule.
2. What is "vOparte communication"?
M
Ex parte communications include any communications other than those made on the record at
the time of the hearing. Thus, written information, including letters, faxes and e-mail, and oral
communication, including telephone calls, are prohibited ex parte communications.
If ex parte communications inadvertently occur, the complete substance of what was
presented at the ex parte meeting should be disclosed at the commencement of the public hearing.
Any written communications received by quasi-judicial officers should be transmitted to the clerk
with instructions that they be made a part of the record on the matter and be available for public
inspection. If a party then expresses concern that it has been prejudiced by the ex parte
communication, an effort should be made to allow that party time to respond to the information
which was the subject of the ex parte communication. If circumstances so require, additional time
should be granted to the complaining party so as to avert a subsequent claim of prejudice.
3. Are site visits ex parte communication?
The independent viewing of the property which is the subject of the quasi-judicial decision is
probably not an ex parte communication that would give rise to a presumption of prejudice,
according to the Florida Attorney General. Op. Att'y Gen. Fla. 94-71 (1994). It is, however,
outside of the quasi-judicial proceeding. Quasi-judicial officers must make their decisions based only
on the record, which includes only evidence presented at the quasi-judicial hearing.
V Land use applications which aro classified as quasi -legislative in nature, very often are coupled with
companion application(s) which is (are) quasi-judicial in nature. Ex parte communications on such
concomitant applications should also be avoided on the quasi -legislative companion item. This is name ry►
because of the "duality" of the subject matter and the tainting which would be difficult. if not imposOle, to
avoid.
V a public
MM._v h
heel PZ- f2, c ` e1 l9 ai
%'ris ilie A,. Thofnpson 02-1245
City Clerk _ . .
PLE MIA -98-023 December 11, 1995
Ex parte Comm? 'ion ( Pik 4
In the event site visits occur, any conversation occurring between the quasi-judicial officer
and the applicant at the site regarding the application would be prohibited ex parte communication
giving rise to a presumption of prejudice. It is recommended that no substantive discussions occur
during site visits, and that such visits be disclosed on the record at the commencement of the public
hearing, in order to comply with the Jennings rule.
4. What are Quasi -Judicial proceedings?
Quasi-judicial proceedings require additional due process safeguards. The parties must be
provided with notice of the hearing, an opportunity to be heard, and, when involving zoning
proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed
of all facts upon which the quasi-judicial body acts. The quasi-judicial body may only act upon fads
presented to it at the quasi-judicial hearing.
The burden of proof; which is on the property owner in legislative matters, shifts in . gwai-
judicial decisions to the local government. For example, once the property owner proves the
requested rezoning is consistent with the comprehensive plan, the burden then shifts to the
government to prove the v4sting zoning accomplishes a legitimate public purpose.
4�
5. What standards of review are applied"
The standard of review of quasi-judicial decisions requires that these decisions must be
supported by competent and substantial evidence. Such evidence has been defined to include
testimony by staff and other professionals in their areas of expertise. [For quasi -legislative decisions,
it is the more deferential "fairly debatable" standard, where decisions are presumed to be valid and
should not be disturbed unless they were clearly arbitrary and unreasonable.]
6. May City staff meet with quasi-judicial officers to discuss quasi-judicial matters
outside of the public hearing?
Yes. City staff, such as planners, engineers and other experts, may meet with quasi-judicial
officers to advise them of their professional opinions regarding quasi-judicial applications. By so
doing, staff are providing unbiased advice in their respective areas of expertise. Such staff are not
attempting to influence the decision maker, and these communications are not the inherently
improper communications which so shocked the conscience of the Third District Court of Appeal in
Jennings. Any written material received from staff regarding the application should be made a part
of the file and disclosed at the public hearing.
7. What remedial action can be taken if ex parte communication should inadvertently
occur?
Once again, in the event such communication should occur, the quasi-judicial officer should
prepare a memorandum disclosing the substance of the communication, the date it occurred and
f'L nm� t'd 'jnto the public
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name(s) of all indivkkuds involved. This merooandwm should be made pert of the fila, available for
inspection by the publK and disclosed on the record at the time of the public hearing. .
Our office is avagable to answer any questions regarding the substance of this ops.. If w
doubt as to whether the Jewinp rule applies, in a particular instance, you should call this office for
advice prior to eg in any communication on a particular land use issue.
c: Donald K Warshiaw, City Manager
Walter L Foeman, City Clerk
4�.
Submitted into the public
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Pris 'lia A. Th mpson
City Clerk
02-1245