Recently, a number changes to Lee County’s land development regulations have been implemented which may be of significant interest to both the general public and practitioners throughout Southwest Florida.
Changes to the County’s LDC
On November 17, 2015, the Lee County Board of County Commissioners (the “Board”) adopted Lee County Ordinance No. 15-15, which modifies Chapters 10, 12, 26, and 34 of the County’s Land Development Code (“LDC”). This ordinance took effect on November 20, 2015.
The majority of the changes will affect Chapter 34 which governs zoning. These changes were meant to clarify the roles of the Board, the Hearing Examiner, Staff, and the applicant. For example, the definition of an “adversely affected person” was altered and other sections were added to emphasize the advisory capacity of the Hearing Examiner regarding zoning decisions by the Board. The procedures to be followed by an applicant when requesting a continuance or deferral of a public hearing have also been revised in detail. It should also be noted that many of the required findings that must be made for the Hearing Examiner to recommend approval of a rezoning have been relocated and can now be found in Chapter 34.
Several new provisions regulate topics like prehearing materials and expert witnesses. The amended LDC will have a process for applicants to follow if they wish to provide the Hearing Examiner with a summary report and documents prior to the hearing. In addition, the amended LDC lists the types of expert testimony information which may be required by the Director from an applicant at least 48 hours prior to the expected testimony.
Changes to the County’s Administrative Code
Along with the above-mentioned revisions to the LDC, on November 17, 2015, the Board adopted Resolution No. 15-11-13 which amended Administrative Code (“AC”) 2-6 and became effective on its date of approval.
Generally, the purpose behind the amendment is to relocate many procedural requirements pertaining to zoning matters from the LDC to AC 2-6. Under the new amendment, an applicant who wishes to provide a 48 hour written notice of outstanding issues will now follow the procedures set forth in AC 2-6. Other additions were made under the amendment to AC 2-6 to address procedural subjects like cross-examination, disqualification of a Hearing Examiner, and the requirements for making a motion or objection.
Like the LDC amendment, these changes also serve to clarify the roles and responsibilities of the Hearing Examiner, Staff, and the applicant. With regards to expert witnesses, AC 2-6 now indicates that “[t]he acceptance of a witness as an expert goes to the witness’ competence to testify on the subject and does not equate to greater credibility or weight.” Of course, even after the amendment to AC 2-6, the competent and substantial evidence standard remains intact and neither the Florida nor the Federal Rules of Evidence apply to the hearings.
One interesting change to AC 2-6 will remove the requirement that a stenographic recording be made for every hearing before the Hearing Examiner. Instead, now every hearing will still be recorded electronically, but a court reporter may only be arranged for at the requesting party’s expense. Given the importance of preserving the record at each hearing before the Hearing Examiner, it is strongly recommended that individuals now make the necessary arrangements to supply their own court reporters at these hearings in Lee County.
While this update serves only as a brief summary of several of the recent changes to the LDC and AC 2-6, it is important to take note of these new provisions before your next appearance before the Hearing Examiner or Board.
If you have any questions or inquiries regarding these recent changes, please do not hesitate to contact Henderson Franklin’s Land Use Department at (239)344-1100.