§ 21-462. Development Special Magistrate.

(a)

[Intent.] The intent of this section is to create a position called "Development Special Magistrate" with the authority to act and render administrative decisions on requests for variances and other matters as set forth below and in the City's Code of Ordinances, from established land development regulations and other regulatory matters.

(b)

Appointment and removal.

(1)

The Development Special Magistrate shall be an attorney who resides in the City or has a place of business located in the City, who possesses an outstanding reputation for civic pride, interest, integrity, responsibility, and business or professional ability. Appointments shall be made by the City Commission on the basis of experience or interest in local government matters.

(2)

Appointment shall be made for a term at the discretion of the City Commission not to exceed a period of three (3) calendar years. The Development Special Magistrate may be reappointed at the discretion of the City Commission. There shall be no limit on the number of reappointments that shall be given to the Development Special Magistrate provided, however, that a determination be made for each special magistrate at the end of each of his terms.

(3)

The Development Special Magistrate serves at the pleasure of the City Commission and the City Commission shall have the authority to remove the Development Special Magistrate with or without cause. The City Commission may enter into an agreement with the Development Special Magistrate further defining the scope, conditions and timing of removal.

(4)

The Development Special Magistrate shall not be a City employee.

(5)

The Development Special Magistrate shall be compensated at a rate to be determined by the City Commission and the City Commission may enter into an agreement with the Development Special Magistrate further defining the scope and conditions of compensation, provided however that the City Commission may not, under any circumstance, condition payment of compensation on the outcome of any matter that may come before the Development Special Magistrate for adjudication.

(c)

Conduct of hearing and minimum procedures.

(1)

Application. An application for a variance or other matter necessitating an appearance before the Development Special Magistrate shall be submitted thirty (30) days prior to being set for a regularly scheduled meeting agenda. The property owner and applicant, if different, must sign the application.

(2)

Application filing fee. Applicants will pay a fee, as set by the City Commission, when the application is submitted.

(3)

Notification. When and at such time as an application to appear before the Development Special Magistrate is made, the application shall be filed with the Planning Division. The Planning Division shall comply with all public hearing requirements under local and state law.

(4)

Public hearing.

i.

Failure of the applicant and/or the applicant's representative to appear at the advertised public hearing. The Development Special Magistrate may continue and table an application to its next regularly scheduled hearing if there is no applicant and/or representative in attendance to address an application at the noticed public hearing. Failure of the applicant and/or representative to appear at the second public hearing may result in the denial of the application. The Development Special Magistrate application fee is nonrefundable.

ii.

The City Clerk, or his/her designee, shall administer oaths to all witnesses.

iii.

At the hearing, any interested person may be heard upon the subject matter of any application. Members of a specific group or association are requested to appoint a spokesperson who will represent their collective position. Interested persons other than the City and applicant shall not be entitled to any substantive quasi-judicial right or privilege, such as the right of cross examination, other than the ability to be heard. The Development Special Magistrate may, in his/her sound discretion, impose reasonable time limits on the testimony of interested persons, the City and the applicant.

(5)

Decisions and/or recommendations. The Development Special Magistrate shall, for all applications, reduce to writing his/her findings of fact, his/her conclusions of law and his/her decision as to granting of an application, granting of an application with conditions, or denying an application in an appropriate order.

(6)

Automatic expiration of relief. Applications for relief that are granted by the Development Special Magistrate and not acted upon within one (1) year of being granted shall automatically expire.

(7)

Written records. Minutes shall be kept of all hearings by the Development Special Magistrate, and all hearings shall be open to the public. The Planning Division shall provide clerical and administrative personnel as may be reasonably required by the Development Special Magistrate for the proper performance of his/her duties. The minutes of all proceedings, decisions and/or recommendations of the Special Magistrate shall be made public record on file in the office of the City Clerk.

(d)

Powers. The Development Special Magistrate shall have the following powers:

(1)

To establish rules and regulations not inconsistent with the provisions of this section or other local or state law.

(2)

To hear and decide matters assigned by Ordinance of the City of Winter Haven.

(3)

To grant dimensional variances, which only include the height or width of a structure or the width, depth or size of yards, where,

i.

By reason of the exceptional narrowness, shallowness or unusual shape of a lot, parcel of land or a site, or trees in buildable area;

ii.

By reason of exceptional topographic conditions; or

iii.

By reason of some other extraordinary situation or condition related to the site,

the literal enforcement of this Code would deprive the applicant of reasonable capacity to make use of the land in a manner equivalent to the use permitted other landowners undertaking similar, permitted development in the same zoning district, after finding each fact and condition requirement in section 21-422 of this Code to have been met.

(4)

To table or continue a hearing on an application if additional information is needed or requested by the Development Special Magistrate.

(5)

To, in any order, prescribe appropriate conditions and safeguards in conformity with the City's land development regulations and ordinances. Violation of such conditions and safeguards, when made a part of the terms of an order, shall be deemed a violation of this Code. The Development Special Magistrate may also prescribe a reasonable time limit within which the action for which the order concerns shall be begun or completed or both, provided however that under no circumstances shall the Special Magistrate enter an order allowing a use not permitted in the parcel in question's applicable zoning district of the City's land development regulations. Nonconforming use of neighborhood lands, structures or buildings in the same zoning district shall not be considered grounds for the authorization of a variance. Financial loss standing alone is not sufficient justification for a variance.

(e)

Reapplication. An application for the reconsideration or rehearing of an application which has been previously acted upon by the Development Special Magistrate may be made in the same manner as provided for at original consideration or hearing. However, no appeal or petition by applicant requesting the same relief or approval for the same property shall, without a substantial change as determined by the Development Special Magistrate, be accepted for reconsideration or rehearing for a period of three (3) months following the date of any action taken by the Special Magistrate.

(f)

Rehearing.

(1)

All decisions of the Development Special Magistrate are final. Applications, once acted upon, may not be reheard unless the applicant can demonstrate that the decision resulted from an error in substantive or procedural law, or provides new evidence or information not discoverable prior to the initial hearing. A different or more effective presentation of the same evidence or information shall not be considered grounds for a rehearing. Provided that grounds for rehearing exist, either the City or the applicant may request a rehearing of the decision of the Development Special Magistrate. A request for rehearing shall be made in writing, and shall be delivered to the City Clerk within ten (10) days of the date of rendition of the order sought to be reheard. The written request for rehearing shall specify the precise reasons therefor.

(2)

If, after review of a timely written request for rehearing, the Development Special Magistrate determines a rehearing should be granted, the Development Special Magistrate or Alternate Development Special Magistrate may:

i.

Schedule a hearing where the parties will be given the opportunity to present limited evidence or argument as to the specific reasons for which the rehearing was granted; or

ii.

Modify or reverse the prior order, without receiving further evidence, provided that the change is based on a finding that the prior decision of the Development Special Magistrate resulted from a ruling on a question of law which the Development Special Magistrate has determined to be an erroneous ruling.

(3)

Until the request for rehearing has been denied or otherwise disposed of, the order of the Development Special Magistrate shall be stayed, and the time for taking an appeal shall not commence to run until the date upon which the Development Special Magistrate has finally disposed of the request for rehearing by denying the same or otherwise.

(g)

Appeals. An aggrieved party, including the City, may appeal a ruling or order of the Development Special Magistrate or Alternate Development Special Magistrate by proceeding in the circuit court for the county, in accordance with the Florida Rules of Appellate Procedure. An appeal shall be filed within thirty (30) days of the execution of the order to be appealed. The nature of the appeal shall be from a final administrative order.

(h)

Ex parte provisions.

(1)

No person who is or may become a party or a witness to a hearing before the Development Special Magistrate shall communicate with him/her concerning any matter pending before him except at the hearings provided for in this section. This restriction shall extend to any person appearing or interceding on behalf of a party, whether or not such person may have a direct, personal or financial interest in the property which is the subject of the alleged violation.

(2)

The Development Special Magistrate shall not communicate with any party, witness, representative of a party, or interceding person concerning any matter pending before him except at the hearings provided for in this section.

(i)

Alternate Development Special Magistrates. The City Commission may appoint one (1) or more qualified persons to serve as alternative Development Special Magistrates in the event a conflict of interest under Florida law or the Rules Regulating the Florida Bar prevents the Development Special Magistrate from ruling in a particular matter.

(Ord. No. O-00-09, Art. 8 (8.03.02), 4-24-00; Ord. No. O-01-10, § 2, 3-12-01; Ord. No. O-01-55, § 7, 10-8-01; Ord. No. O-12-19, § 4(exh. A, pt. II), 5-29-12)