HomeMy WebLinkAboutFW Important Board of Adjustment ProceduresAngie – thoughts?
Mr. Greene – below is an email that was distributed to the Board of
Adjustment earlier today regarding ex parte communication. The City
Attorney’s office was asked to prepare the email prior to tomorrow
night’s BOA meeting regarding Cumberland Farms due to the intense
community interest and dialogue related to this project. This issue
will be discussed with the appropriate boards over the next several
months, but thought it important enough to provide some guidance to the
BOA in the short-term. The appropriate City boards have been copied on
this email so they are aware of the issue.
Should you have any questions regarding this matter, please let Angie
or me know.
From: Kim Kopp [mailto:kkopp@orlandolaw.net]
Sent: Wednesday, February 25, 2015 3:11 PM
To: arvoelau@aol.com; Desann24@msn.com; doug7048@inbox.com;
sweetmang@bellsouth.net; joecool@bikramyogami.com; ibboiler@hotmail.com
Cc: David Dickey
Subject: Important Board of Adjustment Procedures
PLEASE DO NOT HIT REPLY ALL – SUNSHINE LAW
Good afternoon Members of the Board of Adjusment,
In the upcoming weeks, I will be providing training to members of the
Board of Adjustment as a refresher on meeting procedures and
quasi-judicial hearing requirements. Today, I am sending you all a
quick note regarding ex parte communications. If anyone has questions,
I can be reached at the below telephone number.
First of all, what are ex parte communications?
Ex parte communication occurs when a member of the public or interested
party communicates with a board member regarding a quasi-judicial matter
to be considered by the Board of Adjustment. These communications may
be verbal or written, and may include investigations, expert opinions or
site visits by the board member. Special exception and variance
applications are an example of quasi-judicial matters. Tomorrow night’s
hearing on an application for a special exception is a specific example
of a quasi-judicial hearing. Therefore, if any board member has
discussed this application (verbally or in writing) with a member of the
public or interested party, these discussions are considered “ex parte
communications.”
Why do ex parte communications matter?
It is important that members of the board of adjustment only consider
evidence obtained at the quasi-judicial hearing when making their
decisions. Members of the board of adjustment are permitted to
communicate with persons regarding a matter that is at issue in a
quasi-judicial proceeding so long as each member of the Board remains an
impartial arbiter and makes their decision after receiving all of the
evidence presented at the hearing, based on the evidence presented at
the hearing. While ex parte communications are not prohibited, such
communications should be fully disclosed at the meeting. This will give
other parties the opportunity to respond to ex parte communications in
the public hearing context, if they desire to do so.
How and when to disclose verbal and written ex parte communications:
To the extent that any ex parte communications may have occurred, I am
recommending that each board member disclose the identity of the person,
group, or entity with whom any ex parte communication was made and the
subject matter of the communication. Moreover, any actual written
communications received outside of the public hearing should be entered
into evidence at the hearing. Therefore, please gather and bring any
written ex parte communications to tomorrow night’s meeting, if any
exist. Tomorrow night, I will recommend that any disclosures should be
made as soon as practicable at the public hearing to allow the parties
involved to refute or respond to the ex-parte communication. Therefore,
I will recommend that disclosures be made at the beginning of the public
hearing, prior to the receipt of testimony.
Additionally, information received as a result of the
ex parte communications may not persuade members of the Board to the
point that a member cannot hear the case fairly and impartially. If a
member of the Board has reached a firm decision on any quasi-judicial
matter and can no longer hear the matter fairly and impartially as a
result of an ex parte communication, then mere disclosure of the ex
parte communication will not cure that problem and that member should
abstain from the decision.
Again, if anyone has any questions, please do not hesitate to contact
me via telephone. I will be providing additional training to the board
on quasi-judicial hearing procedures including but not limited to ex
parte communications at a future board of adjustment meeting, but this
has not been scheduled yet. Please do not “Reply All” to this email
for Sunshine Law reasons.
Thank you,
Kimberly Romano Kopp, Esq., LEED AP
Brown, Garganese, Weiss & D’Agresta
Senior Attorney
111 N. Orange Ave., Suite 2000
P.O. Box 2873
Orlando, Florida 32802-2873
Phone (407) 425-9566
Fax (407) 425-9596
Kissimmee (321) 402-0144
Cocoa (866) 425-9566
Website: www.orlandolaw.net <http://www.orlandolaw.net/>
Email: kkopp@orlandolaw.net <mailto:kkopp@orlandolaw.net>
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Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing
Florida has a very broad public records law. As a result, any written
communication created or received by the City of Cape Canaveral
officials and employees will be made available to the public and/or
media upon request, unless otherwise exempt. Under Florida Law, email
addresses are public records. If you do not want your email address
released in response to a public-records request, do not send electronic
email to this entity. Instead, contact our office by phone or in writing