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Hearing Officer vs. Planning and Zoning Commission

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At a previous board meeting on April 14, 2020 Commissioner Wayne Dukes asked the board to consider if replacing the current Planning and Zoning Commission with a Special Master or Hearing Officer would be advantageous to the county.  Since the agenda item was for discussion, no decision was made. However, the general consensus is that the Hearing Officer model would be less advantageous in several ways, aside from the financial aspect of adding another compensated position to the county employee payroll.

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The board plans to review the current policies governing the Planning and Zoning Commission in the near future.

Planning Director Ron Pianta opened the discussion, directing the commissioners to a fact sheet that was included in the agenda packet, which includes comparisons of Florida counties using each of the structures, and some which use both.

The first commissioner to address the question, John Allocco summarized, “Even if (hiring a Hearing Official) was ideal situation, we’re talking about adding to the budget another compensated position.That could possibly be fairly significant and it’s not going to take necessarily any pressure off any paid staff because you’re still going to be involved in this process in the planning and zoning department.” 

Pianta affirmed that creating such a position would result in an additional $175 to $300 per hour on the county’s payroll budget. They are consultants, for practical purposes,  Hearing Officers are paid for travel, and if a meeting is cancelled for some reason, a minimum payment would be due.

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Hearing Officers are typically an attorney in good standing in the Florida bar. However,  some communities also allow a Certified Planner to serve in this capacity, so long as they have the proper experience, generally 3-5 years.  The position has no political affiliation, and the individual holding the position can be discharged without special consideration. 

Surrounding counties that employ Hearing Officers typically also have a Planning and Zoning board with varying levels of service. Pianta explained that a Hearing Officer is a non-unbiased third party and typically there’s requirement that this person does not hold elected or appointed office in government.  The differences arise in the general conduction of hearings.

Using a Hearing Officer,  meetings can be scheduled more frequently, particularly if more than one is needed.  The Officer is a neutral party, and their focus is on issuing findings of fact based on the legal effects of the action that’s in front of them.  

Currently, the Planning and Zoning Commission are citizens of the community.  Pianta explained that the current system may be better because, “some people feel more comfortable talking to someone as their peer as opposed to feeling like they’re in a courtroom.”  

Pianta went on to say that there is really no set formula for the decision.  A Hearing Officer being a neutral party may not have the same insight into local communities as the current board does.  Additionally, the Planning and Zoning Commission provides a volunteer opportunity for citizens to get involved in local government. 

The switch to a Hearing Officer could potentially add time to the decision making process.  The County Commission would be able to dictate which permits would appear before them, after the findings of fact by the Hearing Officer.  In those cases, the BOCC would not be conducting a subsequent public hearing, but acting on findings of fact, unless there’s a new opportunity for the applicant to enter new evidence into the record. 

Pianta added that if there were a decision to move to a Hearing Officer system, the process would not be immediate.  The current county code would need to be amended, and a hiring process would ensue. 

Beginning the discussion among the board members, Allocco and Pianta discussed the amount of time it would take for a Hearing Officer to conduct a meeting, where  Pianta reported that 8 hours could be expected.  Allocco’s concern is that the inclusion of time for preparation beforehand, and the writing of findings afterward, each meeting could cost the county “several thousand dollars.”

Allocco added, “The reality is it’s very hard to be neutral.  Each one of these people are going to have their own bent on what they think a community should look like … although maybe  it moves you a little bit more toward neutrality, it’s still not guaranteed neutral.”    He said of the counties that currently employ Hearing Officers, “I look at these counties that are using these they don’t really look like the county that we live in.  Broward,  Monroe,  Manatee, those aren’t  Hernando County, those are much less conservative communities …  When you look at those costs, we’re trying to be as conservative as we can without budget moving forward … it looks to me like it could become much more expensive than some of these estimates.”  

Commissioner Jeff Holcomb posed the question of how citizens may receive the change in process.  Pianta answered, “If I was the applicant I think I would find the process more intimidating  if … I felt like my testimony was being restricted by the Hearing Officer.  I think I would be upset by that.”

Pianta reminded the board that under the current structure, they control the outcome, and a Hearing Officer’s order has the potential to limit the control of the BOCC.  Decisions of a Hearing Officer may also be more subject to litigation.  

Pianta stressed that neither he nor his department is making a recommendation, and the decision will ultimately be that of the BOCC.  

Commissioner Steve Champion disagrees that the public would be intimidated by a Hearing Officer. Champion believes emotions had an effect on some Planning and Zoning final decisions, and stated,  “I would rather deal with a professional that knows the code, and would use the law and say, ‘these are what the facts are … this is what you can and can’t do…’  and then if the fact is if we’re the final decision makers, then shouldn’t (the Hearing Officer) be just an advisory position?”

Pianta advised that the order by the Hearing Officer has the legal foundation for the decision, and the BOCC then determines whether or not to accept the order.  The application is not re-heard by the BOCC unless new evidence is offered.  Ultimately, the BOCC would have less discretion than they currently have. 

Champion reversed his opinion after discussing the more “sterile” procedures, summarized by Assistant County Attorney Jon Jouben,  “Let’s say the board rejected a zoning request that was backed by a recommendation from the Hearing Officer … what makes it harder for the county to defend is that — in that record — is going to be a very, very cogent explanation of why what the board did was wrong.”

Champion later suggested a revamping in how Planning and Zoning Commission members are chosen.  Changes along this avenue would require county policy revisions.

Commissioner Wayne Dukes, who originally suggested the change, questioned how much of an issue legal challenges and other difficulties would be.  All Commissioners agreed that their disagreements with the Planning and Zoning Commission have been few.  If a Hearing Officer system were to be instituted, Dukes is satisfied that any differences in opinions of the board could be satisfactorily resolved. 

Hearing Officer Pros and Cons

Pros

1. Ability to hold hearings more frequently than the boards and commissions and can reduce delay

2. More accountable and can be hired and discharged without the political problems associated with appointed positions of boards and commissions

3. Possesses strong qualifications, experience and background

4. Neutral, outside professional who hears the case without bias or an interest

5. The legal effect of all decisions is specified in the order

6. Potential to cut down on further appeals and litigation

 

Cons

1. Loss of local perspective

2. Increased cost to the taxpayer, not currently budgeted

3. Hearings can be intimidating to the average citizen who are unrepresented by a professional

4. Decreases the ability to make decisions based on familiarity with the community

5. Loss of volunteer opportunities and participation in local government

6. “if it isn’t broke don’t fix it” syndrome

 

Lisa MacNeil
Lisa MacNeil
Lisa MacNeil is a reporter for the Hernando Sun as well as a business technology developer, specializing in website development, content management systems, and data analysis.
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