In recent years, procedures for hearings before Lee County Hearing Examiners have evolved formally and informally, sometimes resulting in confusion and frustration for the parties, the public, and the hearing examiners themselves. A recent amendment to Lee County Administrative Code Section 2-6, aims to eliminate uncertainty in special exceptions, variances, zoning cases, and other matters like administrative appeals. Some are simple changes (for example, the “24-hour pre-hearing memo” is now the “48-hour pre-hearing memo”), while others are more complex and require a greater understanding of legal procedure than ever before.

The following is an attempt to highlight some of the more significant changes found in Lee County Administrative Code Section 2-6, however it is not intended to provide a comprehensive summary or analysis of all changes. 

  • Section 1.1(C) requires administrative appeals to state with particularity the alleged error, relief sought, and the legal basis. Previously, an appeal might generally allege error, giving a petitioner time to further develop his appeal basis prior to the hearing. Under the new rule, an appeal may be dismissed for failure to specifically state the errors made.
  • Section 1.1(F) limits the issues in an administrative appeal to those identified in the initial Notice of Appeal. This change may negatively affect a property owner who files an appeal, then seeks assistance later. Failure to identify issues initially may be fatal to a case, barring a property owner from raising additional claims of error after hiring a development professional.
  • Section 1.2(C) does not change the current requirement that staff reports must be distributed 14 days prior to a rezoning, and 7 days prior to a variance or special exception hearing, however upon receipt of the staff report, each party will receive notice of the name of the hearing examiner presiding over the case. Previously, the identity of the hearing examiner was not known until immediately before the hearing.
  • Section 1.2(D) provides for a “20-day summary report.” This report allows a party (after a finding of sufficiency and at least 20 days before the hearing) to submit a written summary for review by the hearing examiner regarding his position, analysis of the request and documents supporting this position. Information is limited to that which has been previously submitted as part of the application and sufficiency process.
  • Section 2.2(A)(6) expressly limits cross-examination of witnesses to parties in the proceeding, and allows cross-examination by non-parties at the hearing examiner’s discretion.
  • Section 2.2(B)(4) clarifies that the presence and ability to cross-examine the author of a letter or written statement by a member of the public is not required for admissibility in the proceeding.
  • Section 2.2(B)(5) sets forth a detailed set of rules to be followed regarding due process, admissibility of evidence, expert and opinion testimony, the burden of proof, objections to evidence, and the hearing examiner’s findings.
  • Section 2.2(B)(5)(f)(3) governs the testimony and qualifications of expert witnesses. In cases not involving a special exception, variance, or conventional zoning, the party seeking to utilize an expert must provide to the other party information about the expert and his qualifications, the report that serves as the basis of the expert’s opinion, and other specified documents not less than 48 hours before the hearing date. Information not previously exchanged may not be admitted, unless it is agreed by the parties or introduced rebuttal to direct testimony. This requirement may be waived at any time by either party at the request of the other party. 
  • Section 2.2(D) formalizes the previous “24-hour memo” notice requirement. It requires parties to provide a detailed memo summarizing the outstanding issues in the matter at least 48 hours before the hearing. This notice must be provided to all parties, the assistant county attorney assigned to the case, and the hearing examiner.
  • Section 2.3 sets forth the procedures related to a hearing examiner granting a continuance or deferral of a hearing.
  • Section 2.4 sets forth a detailed process regarding motions to disqualify or recuse a hearing examiner.

Bottom Line

For owners representing themselves and development professionals representing clients before the hearing examiner, these changes will have a profound effect on the way they must prepare for these hearings.