Friday, April 10, 2015

Apalachicola adopts guidelines ahead of Family Dollar Store rehearing

The Apalachicola Board of City Commissioners adopted guidelines at their regular scheduled monthly meeting held Tuesday night on conducting a quasi-judicial hearing ahead of the Family Dollar Store matter to be heard May 11, 2015 before the Apalachicola Planning & Zoning Commission (P&Z).

On November 18, 2013, Blue Current the developer of Family Dollar Stores filed an application for a special exception before P&Z to construct a Family Dollar Store on property owned by the developer. The request was denied and Blue Current through its attorney filed an appeal before the city commission, citing that their right to due process had been violated when their request for a quasi-judicial hearing at that November P&Z meeting had been denied.

On the advice of City Attorney Pat Floyd, instead of hearing the appeal city officials remanded the matter back to P&Z to be heard in a quasi-judicial setting.

During Tuesday night’s meeting city officials received a barrage of questions from members in the audience that expressed skepticism in sending the matter back to P&Z.

Local resident and architect George Coon led the enquiry when he questioned the city’s motives in instructing the matter go back to P&Z to be heard as a quasi-judicial hearing.

“Just the fact that you’re bringing that up at a time about the Family Dollar makes me completely suspicious about the motives. I mean what is wrong with our whole process? Are you saying that it’s not right because it didn't go our way? It just doesn't seem right, it doesn't feel good to me you're bringing it up because of the Family Dollar”, queried Coon.

“It sounds to me like the team that is against this will have to start hiring lawyers and paying money and getting a side to take testimony… rather than in our community where you always done something in a certain way. Why isn't that good enough?”

“It’s not always the way you’ve done things is the right process as the laws are commented on and decisions made by the courts. The courts have made decisions on quasi-judicial hearings and procedures that are required from the Supreme Court on down and those are required to be applied… it’s not who it is or how it is.  Other places are going through the same process because the quasi-judicial hearings were not done”, Floyd replied.

“It has to do with the judicial economy and not having something go up and go through the whole process and be guaranteed a reversal and that’s what it would be if you went up with the procedures the way it was handled.”
Kristy Shuler-Hernandez, who sat in the audience during the meeting, asked what the city’s position in the matter was.

“Has the city taken a stance on this… are ya'll for this or against this…what is the city’s stance on them using that lot”, Shuler-Hernandez asked.

“This is not the time to be able to address that, because we have to address this in a quasi-judicial [hearing]…meaning it’s kind of like a judge does on an even basis, with fairness, to be able to take the evidence and the information, and the testimony and then made a decision”, responded Floyd.

Tom Daly, Chair of the Planning & Zoning Committee questioned as to where P&Z went wrong in their deliberation in the Family Dollar Store matter.

 “I just kind of want to understand… as far as redoing this hearing… was there some wrong doing or some process that we did not do correctly? I’m just trying to understand why they [Family Dollar Store] should have another shot at this”, asked Daly.    

“Yes there was! It was not conducted properly and in accordance with the requirements that the case law and the statutes have determined in the State of Florida for a quasi-judicial hearing”, answered Floyd.

“A lot of municipalities and counties are going through that [quasi-judicial hearing]… so what we did is said, rather than go on through with it and have it appealed and then reversed and spend all the time on it, we said let’s go back and adopt the procedures that are here in place that will take care of those procedural requirements under the statutes and then go forward with the determination”, Floyd explained.

“It’s kind of a process where you present the evidence from the staff, the evidence from any experts that we have, and then the cross examination, swearing in of witnesses…the formal rules of evidence are not in application, but the rules of procedure in order to guarantee a fair hearing or due process is required”.

Lynn Wilson, another member of P&Z pressed Floyd to point out exactly where in the process used in the Family Dollar Store matter did the allege violation occur.

“I think that since you are an attorney and you have guided the process both before the P&Z and the commission, I think that it is encumbered upon you to clarify where we violated whatever quasi regulations exist that the city is not following.  It is your position to guide us according to the rules and regulations that need to be used by our due process of law. So what did we violate? What did you violate? Where’s the violation in the process”, Wilson inquired.

Floyd responded, “number one, I wasn't there, number two, had I been there, I would have required people who come to testify of the parties have to be sworn in, provide cross-examination of the people, and provide…”    

“We never had swearing in”, interrupted Wilson.  “In any of the meetings nobody is ever sworn in… that’s not a process that I've ever seen occur”.

“That is what I'm trying to tell you… that is why we have to make the change, because it’s judicially required… because they made an appeal… it’s the evidentiary requirement of giving the person due process in terms of the application so they can have an opportunity to be heard, and to ask the people who are on the board what extra, ex-parte communication that they have had”, replied Floyd.

“What’s the standard for need to hold a quasi-judicial hearing, does someone need to request it or is all business going to have to be done that way”, asked Beth Wight, member of the City’s Tree Committee.

“Only those ones that require the application of a rule to a certain piece of property or a certain instance… the making of a rule like the commission does or ordinances are not quasi-judicial.  Those are just regular legislative, but when an entity starts to take a rule that’s already in place and apply it to a certain situation that is a quasi-judicial function… of seeing whether or not it meets the rule and in those instances there have to be a quasi-judicial hearing, it’s a quasi-judicial process and the due process requirements are required to be provided”, concluded Floyd.

Floyd also noted that a quasi-judicial hearing is automatically triggered under those circumstances, but an applicant can waive the hearing after it has been offered to them.

The attorney agreed to meet with members of P&Z prior to the Family Dollar Store hearing to help the committee understand the adopted guidelines of conducting quasi-judicial hearings.