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6998-02 ORDINANCE NO. 6998-02 AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA, MAKING AMENDMENTS TO THE COMMUNITY DEVELOPMENT CODE, RELATING TO PERMITTING PROCEDURES; AMENDING SECTION 4-202, APPLICATIONS FOR DEVELOPMENT APPROVAL, TO CLARIFY CIRCUMSTANCES UNDER WHICH CERTAIN NOTIFICATIONS SHALL BE DEEMED ADMINISTRATIVE DECISIONS SUBJECT TO APPEAL; CREATING SECTION 4-207 TO CLARIFY TIME FRAMES FOR REVIEW OF APPLICATIONS AND TO CLARIFY APPEAL PROCEDURES IF TIME LIMITS ARE NOT FOLLOWED; AMENDING SECTION 4-302 TO CLARIFY TIME LIMITS FOR MAKING A DETERMINATION OF SUFFICIENCY AND TO CLARIFY AUTHORITY OF COMMUNITY DEVELOPMENT COORDINATOR TO DENY AN APPLICATION; AMENDING SECTION 4-404, COMMUNITY DEVELOPMENT BOARD DECISIONS, TO CLARIFY THAT THE COMMUNITY DEVELOPMENT BOARD'S REVIEW AND THE PUBLIC HEARING SHALL BE HELD WITHIN THIRTY WORKING DAYS AFTER THE DETERMINATION OF COMPELETENESS AND SUFFICIENCY, WITH CERTAIN EXCEPTIONS, AND THE COMMUNITY DEVELOPMENT BOARD DECISION WILL BE RENDERED NOT LATER THAN SEVENTY DAYS AFTER THE INITIAL HEARING, WITH CERTAIN EXCEPTIONS; AMENDING SECTION 4-501, AUTHORITY AND PURPOSE, TO CLARIFY THE APPEALABILITY TO THE COMMUNITY DEVELOPMENT BOARD AND HEARING OFFICER OF CERTAIN FAILURES TO ACT WITHIN THE TIME LIMITS SET FORTH IN THE COMMUNITY DEVELOPMENT CODE; AMENDING SECTION 4- 504, CODE OF ORDINANCES, COMMUNITY DEVELOPMENT BOARD APPEALS, TO CLARIFY THAT APPEALS TO THE BOARD SHALL BE SCHEDULED AT THE FIRST AVAILABLE BOARD MEETING SUFFICIENT TO PROVIDE NOTICE UNDER SECTION 4-206 BUT NOT LATER THAN SEVENTY DAYS FROM RECEIPT OF NOTICE OF APPEAL, WITH CERTAIN EXCEPTIONS; AMENDING SECTION 4-505, HEARING OFFICER APPEALS, TO CLARIFY THE TIME WITHIN WHICH A HEARING OFFICER SHALL HOLD AN APPEAL HEARING BY PROVIDING THAT THE HEARING OFFICER SHALL HOLD AN APPEAL HEARING WITHIN SIXTY DAYS OF RECEIPT OF A NOTICE OF APPEAL, WITH CERTAIN EXCEPTIONS; PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Article 4 of the City of Clearwater's Community Development Code provides for development review and other procedures; WHEREAS, Article 4 of the Community Development Code includes review of decisions involving sign permits; WHEREAS, certain allegations have been made that the Code's review procedures involve a "prior restraint" on free speech; WHEREAS, the City of Clearwater maintains (a) that the review of permits under the Community Development Code does not involve any review or prior approval of the viewpoint that may be expressed by a sign and (b) that the Community Development Code does not involve any "prior restraint" on free speech for the reasons expressed in the recent United States Supreme Court decision in Thomas v. Chicaqo Park District; 534 U.S. 316, 151 L.Ed.2d 783 (January 15, 2002); WHEREAS, the City of Clearwater believes that additional provisions may be added to Article 4 in order to clarify the circumstances under which an application for development approval should be deemed denied and to provide specificity as to the appeal process; WHEREAS, the City of Clearwater believes that Section 4-202 should be modified to make it clear that any notification that an application is legally insufficient is an administrative decision that may be appealed pursuant to Section 4-501 (A)(2); WHEREAS, the City of Clearwater believes that a new Section 4-207 should be created that directs the preparation of an annual schedule to reflect the time frames established in the Community Development Code and the regular meetings before those administrative bodies that may review certain applications for approval, that expressly provides that time frames may be extended by mutual agreement, and that clarifies that an application shall be deemed denied and subject to appeal as set forth in Section 4-501 if there is a failure to act by administrative officials or administrative bodies other than the City Commission within the applicable time limits; WHEREAS, the City of Clearwater believes that Section 4-302 should be modified to make clear that the time limits set forth therein are "working" days and that the community development coordinator may deny applications for failure to meet applicable requirements and standards WHEREAS, the City of Clearwater believes that Section 4-404 should be modified to make clear that the time limit for review and the public hearing shall be thirty days as reflected in the diagram provided for Level Two reviews, and that a decision shall be rendered not later than seventy days after the initial hearing, and providing for extensions of those time frames by mutual agreement. -2- Ordinance No. 6998-02 WHEREAS, the City of Clearwater believes that Section 4-501 should be modified to make clear that the community development board and the hearing officer, as the case may be, have authority to hear appeals whenever a denial is deemed to have occurred as a result of the failure to act of an administrative official or body, other than the City Commission, to act within prescribed time limits; WHEREAS, the City of Clearwater believes that Section 4-504 should be modified to codify the actual practice of scheduling appeal hearings before the community development board, as well as providing additional specificity for the time limits for hearings to be concluded and decisions to be made and expressly providing for extensions by mutual consent; WHEREAS, the City of Clearwater believes that Section 4-505 should be modified to codify and clarify the time frames within which appeal hearings are schedule before a hearing officer; WHEREAS, the City of Clearwater desires to provide for the severability of the provisions of this Ordinance, and to provide that the effective date shall be the date of enactment; NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF CLEARWATER, FLORIDA: Section 1. Section 4-202, Code of Ordinances, is amended to read: Section 4-202. Applications for development approval. * * * * * C. Determination of completeness/sufficiency. * * * * 2. Determination of legal sufficiency: Level one (standard development). Within five working days after a determination that a level one (standard development) application is complete, the community development coordinator shall determine whether the application is legally sufficient, that is whether the required application materials have been prepared in a substantively competent manner. If the community development coordinator determines that any portion of the application is insufficient, the community development coordinator shall notify the applicant of the reasons that the application is legally insufficient, that the application is deemed withdrawn and no further development review shall be conducted until the application is resubmitted. Such notification shall constitute an administrative decision -3- Ordinance No. 6998-02 which may be appealed to the community development board pursuant to section 4-501 (A)(2). 3. Determination of legal sufficiency: Level one (flexible standard development), level two or level three approvals. Within ten working days after a determination that the application is complete, the members of the development review committee in the case of level one (flexible standard development), level two or level three approvals shall determine whether the application is legally sufficient, that is whether the required application materials have been prepared in a substantively competent manner. If any member of the development review committee determines that any portion of the application is insufficient, the community development shall notify the applicant of the reasons that the application is legally insufficient, that the application is deemed withdrawn and no further development review shall be conducted until the application is resubmitted. Such notification shall constitute an administrative decision which may be appealed to the community development board pursuant to section 4-501 (A)(2). Section 2. Section 4-207, Code of Ordinances, is created to read: Section 4-207. Time Frames for Review of Applications. A. Level One (Flexible Standard), Level Two and Level Three Approvals. Consistent with the time limits and other requirements established in this Community Development Code, the Community Development Coordinator shall prepare an annual schedule based upon those requirements that specify the time frames for review of applications submitted for Level One (Flexible Standard), Level Two and Level Three Approvals. The schedule shall utilize the calendar for the year and shall reflect the reqular schedule of meetinqs of the Development Review Committee, the Community Development Board, and the City Commission. B. Extensions of Time Frames. After an application has been determined to be complete and leqally sufficient, an applicant and the City may mutually aqree to extend the established time frames for review and decision for the purpose of evaluatinq information and/or collectinq additional information necessary to make a decision. C. Failure to Act Within Established Time Limits. After an application has been determined to be both complete and leqally sufficient for the purposes of further review, the application shall be -4- Ordinance No, 6998-02 deemed denied if the community development coordinator, the community development board, or any other administrative official or body, other than the City Commission. fail to act as required within the time limits established by this Community Development Code or any mutually aqreed extension of applicable time frame. or within the time limits provided by any other applicable law, rule, policy, or requlation then in effect. Such a denial may be appealed as set forth in the provisions of Section 4-501. except denials by the City Commission shall be appealed by writ of certiorari to circuit court. Section 3. Section 4-302, Code of Ordinances, is amended as follows: A. Level one approval (standard development). An applicant for a level one approval (standard development) shall submit an application in accordance with the requirements of section 4-202 (A) and (F) to the community development coordinator who shall review the application in accordance with the requirements of section 4-202 (C) and (D) and determine whether the application demonstrates compliance with the requirements of this Development Code. Within ten workinq days of a determination of sufficiency, the community development coordinator shall approve the application or approve with conditions necessary to make the proposed development conforming with the applicable general and specific requirements set out in Articles 2 and 3 including the provisions of section 3-913 in regard to general standards for approval conditions. or deny the application for failure to meet the applicable requirements and standards. A development order shall be issued by the community development coordinator as evidence of such approval. B. Level one approval (flexible development). An applicant for level one approval (flexible standard development) shall submit an application in accordance with the requirements of section 4-202 (A) and (F) to the community development coordinator who shall review the application with the development review committee in accordance with the requirements of section 4-202 (C) and (D) and determine whether the application demonstrates compliance with this Development Code. Within 20 workinq days of a determination of sufficiency, the community development coordinator shall approve the application, or approve with conditions necessary to make the proposed development conforming with the applicable general and specific requirements set out in Articles 2 and 3, including provisions of section 3-913 in regard to general standards for approval conditions, or deny the application for failure to meet the applicable requirements and standards. Section 4. Section 4-404, Code of Ordinances, is amended as follows: -5- Ordinance No, 6998-02 Section 4-404. Community development board decision. Upon receipt of the recommendation of the community development coordinator, the community development board shall review the application, the recommendation of the community development coordinator, conduct a quasi-judicial public hearing on the application in accordance with the requirements of section 4-206 and grant the approval, grant the approval subject to specified conditions or deny the application for development approval. The review and public hearinq shall be held within thirty workinq days after the determination of completeness and sufficiency, unless the time frame is extended by mutual consent of the applicant and the City. The community development board shall render a decision not later than seventy days after the initial hearinq, unless the time frame is extended by mutual consent of the applicant and the City. The community development board shall attach such conditions to the approval which are necessary to ensure compliance with the applicable general and specific flexibility requirements set out in Articles 2 and 3 including provisions of section 3-911 in regard to general standards for approval conditions. Section 5. Section 4-501, Code of Ordinances, is amended to read: Section 4-501. Authority and purpose. A. The community development board has the authority to hear appeals from: * * * * 5. Any denials deemed to have occurred as a result of the failure of the community development coordinator to act within the time limits provided in this Community Development Code. B. The hearing officer has the authority to hear appeals from: * * * * * 3. [Reserved.] Any denials deemed to have occurred as a result of the failure of the community development board to act within the time limits provided in this Community Development Code, or as a result of the failure of any other administrative official or body (other than the community development coordinator or the city commission) to act -6- Ordinance No. 6998-02 within the time limits provided by any other applicable law, rule, policy, or reQulation then in effect. Section 6. Section 4-504, Code of Ordinances, is amended to read: Section 4-504. Community development board appeals. A. Except as provided in subsection B. of this section, upon receipt of the recommendation of the community development coordinator regarding appeals from decision set out in section 4-501 (A), the community development board shall review the application, the recommendation of the community development coordinator, conduct a quasi-judicial public hearing on the application in accordance with the requirements of section 4-206 and render a decision in accordance with the provisions of section 4-206(0)(5) granting the appeal, granting the appeal subject to specified conditions or denying the appeal. The hearinQ before the community development board shall be scheduled at the first available meetinQ of the board sufficient to provide notice under section 4-206, and may be continued at that meetinQ to the next reQularly scheduled meetinQ of the board so that the board may receive more information, clarification, or research. The community development board shall render a decision at the meetinQ but not later than seventy days from the receipt of the notice of appeal, unless the parties by mutual consent extend the time frame for the board's decision until a subsequent meetinQ. Section 7. Section 4-505, Code of Ordinances, is amended to read: Section 4-505. Hearing officer appeals. A. Upon receipt of a notice of appeal regarding decisions set out in Section 4-501 (B), the hearing officer shall, in concert with the city clerk, establish a timely date and hour and location for hearing to consist solely of: 1. reception of the record before the community development board; and 2. oral argument. The hearinQ shall be held within sixty days of receipt of the notice of appeal, unless the appellant requests or aQrees to a continuance. The city clerk shall give notice of the hearing to the appellant, applicant, City, and any person granted party status by the community development board. Section 8. Should any part of this ordinance be declared invalid by any court, such declaration shall not affect the validity of the ordinance as a whole, or any part -7- Ordinance No, 6998-02 thereof other than the part declared invalid, and for that reason this ordinance is declared severable. Section 9. This ordinance shall take effect immediately upon adoption. PASSED ON FIRST READING June 20, 2002 PASSED ON SECOND AND FINAL READING AND ADOPTED July 18, 2002 Approved as to form: Attest: Leslie K. Dougall- es Assistant City Attorney .~. -8- Ordinance No. 6998-02