2173-80x
(",* tax, ?' ORDINANCE NO. 2173 `
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
AMENDING AND SUPPLEMENTING ARTICLE XXXV, ADMIN-
ISTRATION AND ENFORCEMENT OF APPENDIX A - ZONING
,°4..' .''e':.iti x'`11 ;".,•? ,`•,
OF THE CODE OF ORDINANCES OF THE CITY OF CLEARWATER,. • . _°•'. _,- :. _;
FLORIDA, 1962, TO PROVIDE THAT THREE VOTES ARE
NECESSARY TO GRANT A SPECIAL EXCEPTION; TO PROVIDE
FOR APPEAL TO A HEARING OFFICER FROM THE BOARD
OF ADJUSTMENT AND APPEAL ON ZONING; TO PROVIDE
THE PROCEDURE THAT WOULD GOVERN SUCH APPEAL,;
PROVIDING FOR THE REPEAL OF ALL ORDINANCES OR
PARTS OF ORDINANCES IN CONFLICT HEREWITH TO THE
EXTENT OF SUCH CONFLICT; PROVIDING FOR THE
SEPARABILITY OF THE PROVISIONS HEREOF; PROVIDING
FOR PROPER NOTICE OF PROPOSED ENACTMENT; AND
PROVIDING FOR THE EFFECTIVE DATE OF THIS ORDINANCE,
Section 1, That subparagraph six (6) of Section 35. 09 of Article XXXV,
Administration and Enforcement of Appendix A - zoning of the Code of Ordinances
of the City of Clearwater, Florida, 1962, be and the same is hereby amended
to read as follows;
(6) After a review of an application and hearing thereon
if the board finds as a fact that the proposed use is
consistent with the genes].-monring-plan. intent of
the Land Use Plan and Zoning Ordinance, and with
the public interest, the hoard may permit such
special exceptions -43,.r. uses as are specifically
provided for In each district. No special exceptions.
ow.epenia.I, uses shall be granted except by an
affirmative vote of four-{4} three (3) members of
the board.
Section 2. That Article XXXV, Administration and Enforcement of
Appendix A - Zoning of the Code of Ordinances of the City of Clearwater, Florida,
1962, is hereby aupplemented by enacting new Section 35. 10 to read as follows;
Section 35. ld Zoning Appeal Hearing Officer.
(A) Purpose - The purpose of this Section is to provide a
process for appeal of a decision of the Board of
Adjustment and Appeal on Zoning at the administrative
level riot to an available recourse in a court of law.
It is further the intent of this Section to provide such
administrative relief in the most professional,
ecti
manner
the
appointment of a Hearing Officer and the establishment
of the process by which the appeal is considered, .._.?
(B) Procedure for Appeal - Shall be according to the following;
(1) Any party in interest affected by the decision or any
representative of the City acting at the request of the
Ord. 42173
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Citv Manager may appeal the decis
of Adjustment and Appeal on Zoning to the Zoning
Appeal Hearing Officer,
(2) Appeala to the Zoning_Appeal Hearing Officer shall be
commenced through the filing of a notice of appeal with
the City Clerk within ten (10) days of the decision of the
Board of Adjustment and Appeal on Zoning.
3 The notice of appeal shall set forth in detail the basis
of M peal in relationship to the LeL
Zoning, Code of Ordinances.
(4) The City Clerk shall, in concert with the Hearing
Officer, establish the date and time for hearing the
appeal, which date shall not be less than fifteen (15)
days or more than forty-five (45) days from the date
of notice of appeal, unless otherwise requested by the
appellant. Should the Hearin Officer occasion a
conflict in his schedule he shall be empowered to
change the date established herein;
(5) The public hearing before the Hearing Officer shall be
advertised and the surrounding property owners notified
consistent with the provisions for such advertisement
and notice for hearing before the Board of Adjustment
and Appeal on Zoning set forth in Section 35. 0%4)'
(6) The City Clerk shall make available to the Hearing
Officer and the general public the tape recording of the
Qraceedings before the Board of Adjustment and AT4)eal'.
7 The Cit Clerk shall to e3 record and ice are'thd written
findings and decision of the Hearing Officer, which findings
and decision shall be mailed to each party of interest in
the hearing and the City Commission.
8) Fees for appeal to the Zoning Appeal Hearing Officer
shall be as established by resolution of the City Coin-
mission.
(C) Conduct of Public Hearing before the Hearing Officer; Shall^
be as set forth following the procedure set out below.
(1)' The Hearing Officer shall set forth at the outset of the
hearing the order of the proceedings and the rules under
which the hearin will be conducted.
(2) The order of presentation at the hearing shall be as follows:
(a) Receipt of the tapes, minutes and exhibits from
the Board of Adjustment and Appeal on Zoning
hearing
Lb) Agency or department comments and examination.
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(c)_ Appellant's case.
sd) Opposition's cases
(e) Rebuttal by appellant.
f Surrebuttal b opposition.
(g) Summation by opposition.
(h) Summation by appellant.
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i Conclusion of the hearing b the Hearin Officer.
3) The record of the hearing and decision of the Board of
Adjustment and Appeal on Zoning, including all exhibits
shall be received and constitute part of the record.
The Hearin Officer shall have the authority to determine
the applicability and relevance of all materials, exhibits
and testimony and to exclude such Irrelevant, immaterial
or repetitious matter as he may deem appropriate.
The Hearing Officer is authorized to administer oaths
where in his judgment testimony under oath is deemed.
essential to the proceeding.
6) A reasonable amount of cross-examination of witnesses
for the appellant, ublic agency or other participants in
the hearings shall be permitted at the discretion of the
Hearing Officer; provided, however, that such questioning
be confined to the direct testimonv given by a principal
partici]2ant.
7) The time for presentation of appeals shall be limited to
one (1) hour for each side, including presentation of the
case rebuttal and summation; except as the Hearin
Officer may determine, for good cause, to specifically
allow an art additional time.
($ The Hearing Officer will conclude the hearing and advise
the parties of interest that his written decision will be?
available within thirt (30) days.
ID) Decision of the Hearing Officer Shall be based upon and
rendered as follows:
1
The Hearing Officer will review the record and testin
presented at public hearing relative to the established
guidelines for consideration of variance or special exc
tion,as set forth in Appendix A, Zoning, Code of
Ordinances, Section 35. 09 (5)x..,(6). (7) and (8). as is
2) The Hearing Officer shall further be guided by the City
Comprehensive Plan, _related portions of the City Code of
Ordinances and establishedcase law. '-?
13L The Hearing Officer's determination shall include "ap_
°? , l..? ..z. Ord: '0 173
ro riate findings of fact, conclusions of law and
decision in the matter of the appeal.-
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4 The Hearin Officer shall file his written determination =- f ;:,y,s .;+;_',_ •".j''{' '
ate ;''•?. ;%"'y'-?;T ;gip;;'.`
En each appeal with the City Clerk within thirty 30
days of the date of the a eal hearing.
5 The decision of the Zoning Appeal Hearin Officer ';:s', ' ': „'•;,,;.
shall be final.
(E) Zoning Appeal Hearing Officer The appointment, term of
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duty, qualifications, conduct and removal of the Hearing Officer shall
be as follows:
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1) The City Commission shall contract with the State of
Florida, Department of Administrative Hearings to .'f?
provide a hearing officer to conduct the appeal hearing
provided herein. t l
(2) Should the City of Clearwater. Florida be unable to
contract with the State of Florida, Division of Admin -
istrative Hearings to provide hearing officer services,
or if a contract is entered into and subsequently terminated
or not renewed, then, Zoning A eal Hearin Officers
shall be appointed utilizing the following 2rocess:
a The City Commission shall a oint two 2)
Zonin A eal Hearin Officers from amore
three or more persons recommended for such
position by the City Manager.
(b) The Zoning Appeal Hearing Officers shall be appointed
for a term of two 2) ears, except one of the initial
appointments shall be for one (1) year so that the terms
of'the officers will be staggered with respect to the
termination date of the appointment. A Hearing Officer
may be reappointed to one or more subsequent terms ~ r
at the conclusion of a previous term of appointment,
in accord with the provisions for initial appointment.
(c) A person recommended for appointment as Zoning
Appeal Hearing Officer shall have a recognized degree
in law, architecture, planning or engineering and be
duly licensed or certified to practice such profession
iii the State of Florida. Such persons .shall further
have practiced their profession for a minimum o£ three
(3) years and be knowledgeable in the field of land use
planning and land use regulations.
(d) No Hearin Officer shall act as agent or attorney r
be otherwise involved with an land use lan or zonin
ordinance matter which will come before the City durin
the term of the officer's appointment. Further, no
Hearing Officer shall initiate or consider ex parte or
other communication with any party of interest to the
hearing concerning the substance of any proceeding to
be heard b the officer; except such a ert advise as
the officer may determine appropriate and solicit.
e) ' Any Zoning Appeal Hearing Officer, once appointed, shall
be removed only b the City Commission.- for due cause
shown'
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f In the event that an appointed Hearin Officer is not
available for or removes himself from a artidular
case, the City Attorney shall be authorized to act
as Hearin Officer for that a ecified a eal. Where
this occurs, the City Attorney or his staff shall not
otherwise artici ate in the hearing.
The City Clerk shall assign each
_by the City Clerk on a confideuti
the designated Hearing Officer,
F Powers and Duties of Hearin Officer - The authority of the
Hearing Officer shall be as follows:
1) To schedule and hold a public hearing on an appeal from
a decision of the Board of Adjustment and Appeal on
Zonin ,- under the provisions.of Section 35. 07 (7) and
(8) with respect to the grant or denial of a variance or
special exception, respectively.
(2) To receive and consider the record of the meal from
the Board of Adjustment and Appeal on Zoning.
3 To receive such sti ulations of facts, agreed to in
writing and filed by the parties to the appeal. Such
stipulations, if filed, shall in addition to the record
of the Board of Adjustment and Appeal on Zoning
hearing, be considered and used as evidence in the
hearing.
(4) To accept, in the officer's discretion, original or true
dies of such documentary evidence, or such parts as
may be relevant, as may be offered by the parties to the
appeal.
(5) To call, examine and cross-examine witnesses and to
introduce into the record all relevant evidence.
6) To adjourn, continue or grant such other procedural
request, including motions to amend or consolidate, as
he may deem proper.
exacting
Section 3. That subparagraphs 6, 9, 10 and 11 of Section 35. 09
be and the same are hereby repealed.
Section 4. Should any section, paragraph, sentence or word of this
ordinance be declared for any reason to be invalid, the same shall not affect
the validity of the ordinance as a whole, or any part thereof other than the part
declared to be invalid.
Section 5. All ordinances or parts of ordinances in conflict herewith
are to the extent of such conflict hereby repealed.
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Section 6. Notice of the proposed enactment of this ordinance has
been properly advertised in a newspaper o£ general circulation in accordance
with Section 166. 041, Florida Statutes.
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Section 7. This ordinance shall become effective immediately upon
its passage.
PASSED ON FIRST READING August 21, 1980
PASSED ON SECOND AND FINAL REA DING
AND ADOPTED September 4, 1980
Mayor- ommissioner
Attest:
City Clerk.
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