A.

Purpose, Intent, and Applicability

It is the purpose of this chapter to allow for the development of facilities and residences that accommodate persons with disabilities. This Section implements the policy of the City regarding requests for reasonable accommodation to its zoning and land use regulations, rules, ordinances, policies, and procedures for persons with disabilities to use and enjoy housing. as provided by the Federal Fair Housing Act (42 U.S.C. 3601 et seq.) ("FHA") and Title II of the Americans with Disabilities Act (42 U.S.C. 12131 et seq.) C'ADA").

Any person who is disabled (or qualifying entities) may request reasonable accommodation with respect to the City 's zoning and land use regulations, rules, ordinances, policies, and procedures as provided by the FHA and the ADA pursuant to the procedures set out in this Section. For purposes of this Section, a "qualifying entity" shall mean, a licensed service provider of the state of Florida as defined by F.S. § 397.311. All qualifying entities shall submit as part of an application for a reasonable accommodation proof of the licensable service component the qualifying entity holds pursuant to F.S. Ch. 397.

B.

Application Procedures. The following general provisions shall be applicable:

1.

The City shall display a notice on the City's webpage (and shall maintain copies available for review in the City Clerk's Office) advising the public that disabled individuals (and qualifying entities) may request reasonable accommodation as provided herein.

2.

A disabled person may apply for a reasonable accommodation on his or her own behalf or may be represented at all stages of the reasonable accommodation process by a person designated, in writing, by the disabled person.

3.

The City shall provide assistance and accommodation as is required pursuant to the FHA and ADA in connection with a disabled person's request for reasonable accommodation, including without limitation, assistance with reading application questions, responding to questions, completing the necessary forms, filing an appeal, and appearing at a hearing to ensure the process is accessible.

4.

Reasonable accommodation request form. A request by an applicant for a reasonable accommodation under this Section shall be made in writing by completion of a reasonable accommodation request form and submitted to the Department of Community Development. The reasonable accommodation request form is maintained by the Department of Community Development and shall contain such questions and requests for information as are necessary for processing the reasonable accommodation request. The reasonable accommodation request form shall, at a minimum. require the following information:

a.

Name and contact information for applicant;

b.

Address of housing or other location at which accommodation is requested;

c.

Name and mailing address of subject property owner;

d.

Description of reasonable accommodation requested;

e.

Description of the specific regulation(s) or procedure(s) from which accommodation is sought;

f.

Reasons the reasonable accommodation may be necessary for the individual(s) with disabilities to use and enjoy the housing or other service;

g.

Name and contact information for applicant's authorized representative, if applicable; and

h.

Signature of applicant, or authorized representative.

5.

Fees. There shall be no fee imposed by the City in connection with a request for reasonable accommodation under this Section or an appeal of a determination on such request to the City Council, and the City shall have no obligation to pay a requesting party's (or an appealing party, as applicable) attorneys' fees or costs in connection with the request, or an appeal

C.

Medical information confidentiality. Should the information provided by the disabled person to the City include medical information or records including records indicating the medical condition, diagnosis or medical history of the disabled person, such individual may at the time of submitting such medical information, request that the City, to the extent allowed by law, treat such medical information as confidential information of the disabled person. The City shall thereafter endeavor to provide written notice to the disabled person, or their representative, of any request received by the City for disclosure of the medical information or documentation which the disabled person has previously requested be treated as confidential by the City. The City will cooperate with the disabled person, to the extent allowed by law, in actions initiated by such individual to oppose the disclosure of such medical information or documentation, but the City shall have no obligation to initiate, prosecute, or pursue any such action, or to incur any legal or other expense (whether by retention of outside counsel or allocation of internal resources) in connection therewith, and may comply with any judicial order without prior notice to the disabled person.

D.

Determination process. The City Manager shall have the authority to consider and act on requests for reasonable accommodation. When a reasonable accommodation request form has been completed and submitted to the Department of Community Development, it shall be referred to the City Manager for review and consideration.

1.

The City Manager shall issue a written determination within 45 days of the date of receipt of a completed application, except as provided in paragraph C. below, and may, in accordance with federal law; (1) grant the accommodation request, (2) grant a portion of the request and deny a portion of the request or impose conditions upon the grant of the request, or (3) deny the request in accordance with federal law. If the request is denied, the determination shall state the grounds therefore. All written determinations shall give notice of the right to appeal.

2.

The notice of determination shall be sent to the requesting party (i.e., the disabled individual or authorized representative) by certified mail, return receipt requested.

3.

If reasonably necessary to reach a determination on the request for reasonable accommodation, the City Manager, may, prior to the end of said 45-day period, request additional information from the requesting party, specifying in detail what information is required. Such additional information may include, additional medical information from the requesting party. The requesting party shall have 15 days after the date of the request for additional information to provide the requested information. In the event a request for additional information is made, the 45-day period to issue a written determination shall no longer be applicable, and the City Manager, shall issue a written determination within 30 days after receipt of the additional information. If the requesting party fails to provide the requested additional information within said 15-day period, the City Manager shall issue a written notice advising that the requesting party had failed to timely submit the additional information and therefore the request for reasonable accommodation shall be deemed abandoned or withdrawn and no further action by the City with regard to said reasonable accommodation request shall be required.

E.

Criteria for determination. In determining whether the reasonable accommodation request shall be granted or denied, the requesting party shall be required to establish that they are protected under the FHA or ADA by demonstrating that they are handicapped or disabled, as defined in the FHA or ADA. For purposes of this Section, the disabled individual must demonstrate to the City:

1.

a.

A physical or mental impairment which substantially limits one or more major life activities;

b.

A record of having such impairment; or

c.

That they are regarded as having such impairment; and

2.

That the proposed accommodation being sought is reasonable and necessary to afford handicapped or disabled persons equal opportunity to use and enjoy housing.

F.

Required findings. A request for reasonable accommodation pursuant to this Section shall be approved, with or without conditions, if the City Manager finds based upon all of the evidence presented, that all of the following findings are made:

1.

The property or dwelling that is the subject of the request for reasonable accommodation will be occupied by a disabled person;

2.

The requested accommodation is necessary to provide a disabled person with an equal opportunity to use and enjoy a dwelling;

3.

The requested accommodation will not impose an undue financial or administrative burden on the City; and

4.

The requested modification will not require a fundamental alteration in the nature of a City program or law.

G.

Conditions of approval. In granting a request for reasonable accommodation. the City Manager may impose conditions of approval deemed reasonable and necessary to ensure that the reasonable accommodation would comply with the findings of this Section including, but not limited to the following:

1.

Inspection of the property periodically as specified, to verify compliance with this Section and any conditions of approval.

2.

Recordation of a deed restriction requiring removal of the improvements when the need for which the accommodation was granted no longer exists, except where the City Manager finds that removal would constitute an unreasonable financial burden or is physically integrated with the structure and cannot feasibly be removed. If applicable, the restrictive covenant shall provide that the reasonable accommodation does not run with the land and shall terminate upon any sale transfer, lease, or other conveyance of the property.

3.

Time limits or expiration of the approval, if the need for which the accommodation was granted no longer exists.

4.

Measures to reduce the impact on surrounding uses.

5.

Measures in consideration of the physical attributes of the property and structures.

6.

Other conditions necessary to protect the public health, safety, and welfare.

H.

Appeal of determination. Within 30 days from the date of the City determination on a reasonable accommodation request, or revocation, or modification of a reasonable accommodation, the applicant may appeal the decision. All appeals shall contain a written statement containing sufficient detail of the grounds for the appeal. Appeals pursuant to this Section shall be to the City's Special Magistrate who shall, after public notice and a public hearing, render a written determination as soon as reasonably practicable, but in no event later than 60 days after an appeal has been filed. Notice of any public hearing hereunder shall be provided to the applicant at least 10 days in advance of the public hearing.

I.

Stay of enforcement. While an application for reasonable accommodation, or appeal or a determination of same, is pending before the City, the City will not enforce the subject zoning ordinance, rules, policies, or procedures against the applicant. However, should the applicant proceed with any property purchase, building, construction, or other work associated with establishing a project or residence housing individuals covered by the FHA or the ADA while an application or appeal for reasonable accommodation is pending, the applicant understands that any of these actions are done at the applicant's own risk because the application or appeal may be denied.

J.

Revocation of reasonable accommodation. Any reasonable accommodation received shall be subject to revocation or modification if the holder of the reasonable accommodation or the property upon which the accommodation is granted is found in violation of any provision of the written determination granting the reasonable accommodation by a court of law or by the special magistrate hearing code enforcement cases, and the holder of the reasonable accommodation has failed to correct such violation. The City shall send a notice of hearing on a proposed revocation or modification of a reasonable accommodation by certified mail, return receipt requested, to the holder of the reasonable accommodation at least 30 days prior to the date of the hearing. The City Manager shall have the authority to consider and act on a revocation or modification of a reasonable accommodation, after notice and hearing during which the reasonable accommodation holder shall have the opportunity to present evidence and be heard.

(Ord. No. 31-25, § 5, 6-4-2025)

A.

Purpose and intent. The purpose of this ordinance is to establish procedures for the initiation, conduct, and conclusion of a Special Magistrate proceeding under the Florida Land Use and Environmental Dispute Resolution Act (the "Act) involving a development approval (order) or enforcement action by the City of Cape Coral. It is the intent of the City of Cape Coral that the Special Magistrate process be a speedy, inexpensive, and simple method for owners and regulators to settle land use and environmental permitting and enforcement disputes. To that end, owners and regulators should meet face-to-face, in a non-adversarial atmosphere, to resolve disputes without the need for formal representation. Negotiations assisted by a Special Magistrate will enable an owner and regulators to exert more control over their dispute, allowing the parties to shape a resolution rather than having one imposed on them. The Special Magistrate and the parties should exercise maximum flexibility to adapt these procedures to the exigencies of each particular case, consistent with the requirements of state law and due process.

B.

Definitions. For the purpose of this ordinance, the following definitions shall apply; words used in the singular shall include the plural, and the plural, the singular; words used in the present tense shall include the future tense. The word "shall" is mandatory and not discretionary. The word "may" is permissive. Words not defined herein shall be construed to have the meaning given by common and ordinary use as defined in the latest editions of Webster's Dictionary.

1.

CITY. The City of Cape Coral, Florida.

2.

DEVELOPMENT. The meaning given it in F.S. § 380.04, as same may hereafter be amended.

3.

DEVELOPMENT ORDER. Any order which has or will have the effect of granting, denying, or granting with conditions an application for a development permit. This term shall include orders rezoning a specific parcel of land, but shall not include actions on an amendment to the local Comprehensive Plan.

4.

DEVELOPMENT PERMIT.

a.

Any building permit, zoning permit, subdivision approval, certification, special exception, variance, or any other similar action of the city; or

b.

Any other permit authorized to be issued by the city under state law which has the effect of authorizing the development of land, including programs implementing F.S. Chs. 125, 161, 163, 166, 187, 258, 372, 373, 378, and 403.

5.

OWNER. A person with a legal or equitable interest in real property who filed an application for a development permit for the real property with the city and who received a development order, or who holds title to real property that is subject to an enforcement action by the city.

6.

PARTICIPANT.

a.

A person with a legal or equitable interest in land contiguous to the owner's property and who has been accepted by the Special Magistrate as a participant in the proceeding; or

b.

A substantially affected person who submitted oral or written testimony, sworn or unworn, of a substantial nature which stated with particularity support for or objections to the development order or enforcement action in a prior proceeding, including a public hearing, and who has been accepted by the Special Magistrate as a participant in the proceeding.

7.

PARTY or PARTIES. The owner, the city, and any other governmental entity made a party to the proceeding by the Special Magistrate.

8.

PERSON. Individuals, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

9.

RIPENESS DECISION. A written decision that describes the use or uses available on the subject real property.

10.

SPECIAL MAGISTRATE PROCEEDING. Any combination of facilitation sessions, formal or informal hearings, of a public nature authorized under the Florida Land Use and Environmental Dispute Resolution Act.

C.

Pre-hearing procedures.

1.

Unless the parties agree in writing to extend the time for performing any act under these guidelines, including the overall 165-day time period, a Special Magistrate proceeding may not continue longer than 165 days from the date the owner files the request for relief.

2.

Any copy which must be furnished to the Special Magistrate, a party or a participant may be sent by regular mail, postage prepaid, or by hand delivery to the recipient's last known address. The burden of proving a copy has been furnished is on the person responsible for furnishing it.

3.

Except for, an owner's request for relief, any document which must be submitted or any copy which must be furnished, may be submitted or furnished by facsimile transmission. Facsimile documents shall be deemed submitted or furnished on the date transmitted as shown on the recipient's copy, if the copy is complete.

4.

Filing means that the signed original must be received by the office that is to receive the document by the date specified. Any document received after 5:00 p.m. shall be deemed filed as of 8:00 a.m. the next regular business day.

D.

Standards of conduct.

1.

The Special Magistrate holds a position of trust and should adhere to the highest standards of personal integrity, impartiality, and competence. The Special Magistrate should be honest and unbiased, act in good faith, be diligent, and avoid any conflict of interest or the appearance of a conflict of interest. The Special Magistrate should disclose any facts or circumstances that may give rise to justifiable doubts as to impartiality or independence.

2.

The standards of conduct for parties and participants may be adopted by the City Council by resolution and shall govern the proceedings unless waived or altered in the Special Magistrate contract.

E.

Administrative appeals and judicial review.

1.

A petition by the owner for judicial review of the development order or enforcement action or a formal administrative hearing pursuant to F.S. §§ 120.569 and 120.57, if applicable, shall waive all rights to a Special Magistrate proceeding.

2.

A request for relief through a Special Magistrate proceeding shall toll the time for filing a petition for judicial review of the development order or enforcement action, or a formal administrative hearing pursuant to F.S. §§ 120.569 and 120.57, if applicable.

3.

Invoking the procedures for a Special Magistrate proceeding is not a pre-condition for judicial review of the development order or enforcement action or a formal administrative hearing pursuant to F.S. §§ 120.569 and 120.57.

F.

Pre-initiation meeting. Prior to filing a formal request for relief under this ordinance, the owner may request by letter an informal meeting with the City Manager to discuss alternatives to the filing of the Special Magistrate proceeding. The City Manager shall conduct such a meeting as expeditiously as possible and shall include technical staff familiar with the regulations at issue.

G.

Request for relief. Any owner who believes a development order of or an enforcement action by the city is unreasonable or unfairly burdens the use of the owner's real property may file a request for relief in accordance with the requirements of this ordinance. Request for relief forms shall be maintained by the City Department of Community Development and shall be available during business hours to members of the public.

H.

Time for filing. A request for relief must be filed within 30 days after:

1.

Receipt of the development order or enforcement action; or

2.

If a city administrative appeal is available in the case of a particular development order or enforcement action, the later of the conclusion of such administrative appeal or the expiration of four months after the initiation of such appeal. Before initiating a Special Magistrate proceeding to review a city development order or enforcement action, the owner must exhaust all nonjudicial city administrative appeals so long as such appeals take no longer than four months. Once nonjudicial local administrative appeals have been exhausted and the development order or enforcement action is final, or, if the owner has pursued administrative appeals, within four months after issuance of the development order or notice of the enforcement action by the city (even if the appeals have not been concluded), the owner may file a request for relief pursuant to this section.

I.

Requirements. The request for relief must contain the following:

1.

A brief statement of the owner's proposed use of the property;

2.

A summary of the development order or description of the enforcement action. In addition, a copy of the development order or documentation of the enforcement action must be attached;

3.

A brief statement of the impact of the development order or enforcement action on the ability of the owner to achieve the proposed use of the property;

4.

The signature of the owner or, if the owner is a corporation, partnership, or other organization, the signature of a responsible official, and the mailing address and telephone number at which the owner may be reached;

5.

A statement regarding whether any local administrative appeal is available and, if so, whether and when it was commenced by the owner and, if completed, the date of completion; and

6.

A certificate of service identifying the persons, if any, who have been furnished with copies of the request for relief.

J.

Filing of request for relief.

1.

To initiate a Special Magistrate proceeding, an owner must file a signed original and one copy of a request for relief with the Community Development Department. No fee shall be charged by the city for the filing of a request for relief. However, the owner shall be solely responsible for the cost of preparing the original and one copy of the request for relief.

2.

Within ten days of receipt by the city of the request for relief filed as provided herein, the City shall forward the original request for relief to a Special Magistrate selected in accordance with this ordinance. This time period may be extended only by agreement of the parties.

K.

Notice of filing.

1.

Concurrently with the forwarding of the request for relief to the Special Magistrate, the city shall serve, by U.S. Mail or hand delivery, a notice of the filing of the request for relief to the following:

a.

Owners of real property contiguous to the applicant's property at the address shown on the latest Lee County tax roll; and

b.

Any substantially affected person who submitted oral or written testimony of a substantive nature which stated with particularity an objection to or support for any development order or enforcement action at issue. However, notice under this paragraph is required to be provided to such a substantially affected person only if that person requested in writing or at a public hearing expressed a desire to be placed on a mailing list to receive notice of any subsequent proceeding on the development order or enforcement action at issue. The city shall maintain in its files relating to particular development orders a mailing list of persons who have presented oral or written testimony and who have requested notice.

2.

The notice of the filing of the request for relief need not contain any attachments or supporting documentation which may have accompanied the request for relief. However, in lieu or providing a complete copy of the request for relief, the notice of filing shall contain any information necessary for the recipient to secure a complete copy of the request for relief. The cost of preparing and serving copies of the request for relief on qualifying participants shall be borne equally by the parties.

3.

Any failure to notice potential participants shall be cured by posting of notice of the Special Magistrate proceeding in a location established by the City Council for that purpose.

L.

Special Magistrate.

1.

Qualifications and restrictions. A Special Magistrate need not be a lawyer or a mediator certified by the Florida Supreme Court. However, in order to serve as a Special Magistrate in a proceeding pursuant to this ordinance, a person must:

a.

Be a resident of the State of Florida;

b.

Possess experience and expertise in mediation; and

c.

Possess experience and expertise in at least one of the following disciplines and a working familiarity with the others:

i.

Land use and environmental permitting;

ii.

Land planning;

iii.

Land economics; and

iv.

Local and state government organization and powers, and the law governing the same.

2.

Special Magistrate selection.

a.

The City Council shall at least annually recruit qualified persons to serve as Special Magistrates and shall, on an annual basis, appoint at least three qualified persons to serve as "pre-approved" Special Magistrates.

b.

The city shall include in the request for relief form provided to the owner a pre-approved list of Special Magistrates and instructions for objecting to any person named on the list.

c.

The parties may mutually agree on a Special Magistrate. In instances in which the city has been joined by a Special Magistrate pursuant to subsection (11) of the Act, the city shall not unreasonably refuse to abide by the choice of a Special Magistrate by the original parties.

3.

Selection from pre-approved list.

a.

The Special Magistrate may be selected from the list(s) of approved Special Magistrates provided with the request for relief form. If an owner objects to any of the Special Magistrates on the list(s), the owner shall state such objection in the owner's request for relief. If an owner does not object to a Special Magistrate in the owner's request for relief, then those Special Magistrates to whom no objection was raised by the owner shall be deemed to be acceptable to the owner. The city shall then select one of the pre-approved Special Magistrates, at random, to be the Special Magistrate to consider the requests for relief.

b.

In the event an owner objects to all of the persons on the approved Special Magistrate list, the city shall be allowed additional time to secure a mutually acceptable Special Magistrate.

c.

If the parties are unable to agree on the selection of a Special Magistrate, then the following procedure shall apply:

i.

Each party may select one person qualified as a Special Magistrate who, together, shall then select a candidate. If the parties cannot agree on that candidate, the Special Magistrate shall be randomly selected by the Florida Growth Management Conflict Resolution Consortium from a list of qualified candidates maintained by them for that purpose; or

ii.

If the parties prefer not to follow the procedure delineated in subsection (f)(3)c.1. above, then the Special Magistrate shall be randomly selected by the Florida Growth Management Conflict Resolution Consortium from a list of qualified candidates maintained by them for that purpose.

M.

Special Magistrate agreement.

1.

Following the selection of a Special Magistrate, the parties shall enter into an agreement with the Special Magistrate which provides for the following:

a.

Agreement by the Special Magistrate that he or she would not be called as an expert witness in any related subsequent or concurrent judicial proceeding;

b.

Agreement by the parties that the Special Magistrate's recommendation and related materials are inadmissible in any related subsequent or concurrent judicial proceeding except to the extent that a certificate of completion of the process will be available to certify that the Special Magistrate process has been completed;

c.

The Special Magistrate may not be called to appear before the City Council or any administrative or judicial tribunal with respect to the written recommendation or any aspect of the proceeding, nor may the Special Magistrate voluntarily furnish notes or other related material;

d.

The Special Magistrate may require in any agreement that the parties, where not otherwise prohibited by law, provide a deposit of funds to secure payment of the Special Magistrate's fees and expenses;

e.

Payment of costs, including, but not limited to the costs of providing notice and effecting service, and payment of fees and expenses for the Special Magistrate;

f.

Establish rules for the conduct of the proceeding, including but not limited to standards of conduct for the Special Magistrate, parties, and participants, and the enforceability of subpoenas in circuit court;

g.

Identify factual issues to be addressed in the proceeding or specify procedures for resolving factual issues, including, but not limited to, stipulation;

h.

Provide for the exchange of information by the parties prior to the mediation or hearing;

i.

Identify participants known to the parties who should be notified of the proceeding;

j.

Provide whether the time for performance of any act is varied; and

k.

Address such other issues as the parties may decide will assist in settlement of the dispute.

N.

Conduct of the Special Magistrate proceeding.

1.

Request to participate in proceedings. Within 21 days after receipt of the request for relief, any owner of land contiguous to the owner's property and any substantially affected person who submitted oral or written testimony, sworn or unsworn, of a substantive nature which stated with particularity objections to or support for the development order or enforcement action at issue may request from the Special Magistrate permission to participate in the proceeding. Such persons may be permitted to participate in the hearing to the extent allowed under the Act.

2.

Filing of response.

a.

No more than 15 days after the filing of a request for relief, the City shall file a response to the request for relief on behalf of the city. A copy shall be furnished to the owner and any person who has requested to participate in the proceeding. The cost of preparing and filing the response to the request for relief shall be borne by the city.

b.

The response to the request for relief shall set forth in reasonable detail the position of the city regarding the matters raised by the owner. The response shall include a brief statement explaining the public purpose of the regulations on which the development order or enforcement action is based.

3.

Sufficiency hearing; request to be dropped as a party.

a.

The response to the request for relief may include a request that the Special Magistrate dismiss the owner's request for relief for any failure to include the information required in subsection .7 above. The Special Magistrate may conduct a hearing on the issue of such dismissal of the request for relief. If the Special Magistrate dismisses the owner's request for relief, the Special Magistrate shall allow the owner a reasonable time within which to file an amended request for relief. Failure to file an adequate amended request for relief within the time specified by the Special Magistrate shall result in a dismissal with prejudice as to this proceeding.

b.

Any party may request, in its response or otherwise, to be dropped from the proceeding. The request must set forth facts and circumstances to aid the Special Magistrate in deciding the request. The Special Magistrate may conduct a hearing at any time on any request to be dropped as a party. All such requests must be disposed of prior to a hearing on the substance of the owner's request for relief. If the Special Magistrate denies a party's request to be dropped, that party shall participate in the proceeding.

O.

Notice and timing of Special Magistrate proceeding.

1.

As required under the Act, the Special Magistrate shall timely convene a Special Magistrate proceeding on the request for relief.

2.

The Special Magistrate's expenses in providing notice shall be borne equally by the parties unless otherwise established in the Special Magistrate agreement.

3.

Notice to all parties and other persons who have requested such notice hall contain a reference number and date of filing of the request for relief and instructions for obtaining further information regarding the request for relief.

P.

Subpoena powers of the Special Magistrate.

1.

A subpoena issued by a Special Magistrate may require the witness to bring a document or thing.

2.

A party requesting the subpoena of a nonparty witness shall make such request in writing to the Special Magistrate.

3.

The Special Magistrate shall only subpoena a witness that the Special Magistrate believes will aid in the disposition of the matter.

4.

Parties subpoenaing witnesses shall be responsible for paying fees and mileage in the amount as provided under Florida law for witnesses in civil cases.

5.

The Special Magistrate shall provide notice of any witnesses subpoenaed to any party requesting such notice.

6.

Service of subpoenas shall be made in the manner provided by the Florida Rules of Civil Procedure.

7.

The witnesses of either party that are present for the hearing or are on standby or available on call are not to be excused by either party without the concurrence of the other party or of the Special Magistrate.

Q.

Special Magistrate proceedings.

1.

Consolidation.

a.

Separate matters which involve similar issues or identical parties may be consolidated if the parties agree and it appears that consolidation would promote the speedy, efficient, and inexpensive resolution of the matters.

b.

If such separate matters are pending before different Special Magistrates, the parties may decide which Special Magistrate will conduct the consolidated proceeding. If the parties cannot agree on one or more Special Magistrates to conduct the proceeding, the proceedings shall not be consolidated.

2.

Conduct of the proceeding.

a.

A party or participant may be represented by an attorney or other person at any phase of the proceeding, but such representation is not required.

b.

At the mediation, each party shall be represented by a person with authority to bind that party to a settlement, or to recommend a settlement directly to the persons with authority to bind the party. The Special Magistrate may ask a representative to provide assurances of such authority.

3.

Order of the proceeding.

a.

In keeping with the overriding intent of the Legislature that the Special Magistrate proceeding be a flexible, problem-solving procedure which results in a voluntary settlement, the Special Magistrate may conduct the phases of the proceeding in any sequence and on separate days.

b.

The proceeding shall be open to the public and shall be held in a location accessible to the public, including the physically handicapped.

c.

The proceeding shall be conducted under the direction and supervision of the Special Magistrate. The Special Magistrate shall determine the order of presentation of issues and information unless otherwise set forth in the Special Magistrate agreement. The Special Magistrate shall decide questions of procedure in a manner which provides reasonable due process.

d.

Prior to any other portion of the proceeding, the Special Magistrate shall conduct a hearing on any request to dismiss the request for relief.

e.

At any time after commencement of the information-gathering hearing, the Special Magistrate may recess the hearing to recommence mediation and facilitation.

f.

After the hearing, the Special Magistrate may re-convene the parties to present a written recommendation, in draft or final form, and seek to re-commence negotiations.

4.

Mediation phase.

a.

The Special Magistrate's first responsibility is to facilitate a resolution of the dispute and arrive at a settlement acceptable to the parties. It may involve a modification of the owner's proposed use of the property or adjustment in the development order or enforcement action or regulatory efforts by one or more of the governmental parties.

b.

The Special Magistrate shall, among other things, suggest alternatives, analyze issues, question perceptions, use logic, stimulate and facilitate negotiations between the parties, and keep order. The Special Magistrate at all times shall promote conciliation, cooperation, compromise, and settlement of the dispute within the bounds established by law.

c.

As alternatives, if variances, and other types of adjustments to the development order or enforcement action are presented, the Special Magistrate shall afford participants an opportunity to address the impacts of such alternatives on their substantial interests.

d.

At any time after commencement of the presentation of evidence in the hearing, the Special Magistrate may recess the hearing and presentation of evidence to recommence a facilitation session.

5.

Information-gathering hearing.

a.

Within five days of receipt of the request for relief, the Special Magistrate shall provide written notice of the place, date, and time of the hearing to all parties, and to all person who have requested such notice. The hearing must be held within 45 days of the Special Magistrate's receipt of the request for relief. The parties may agree to extend the date for the hearing.

b.

The hearing must be held in the City of Cape Coral. The Special Magistrate's decision on the specific place of the mediation and hearing shall be final.

c.

The Special Magistrate shall hear from anyone with information necessary to understand the matter. The Special Magistrate may question anyone presenting information at the hearing, but will give all parties an opportunity for follow-up questions.

d.

The Special Magistrate shall weigh all information offered at the hearing. Information shall not be subject to the rules of evidence, but the criteria for determining and the determination of verification and authentication are within the Special Magistrate's discretion.

e.

At any time, the Special Magistrate may require any party to provide additional information in the interest of gaining a complete understanding of the request for relief.

f.

Each party may record the hearing at its own expense. The Special Magistrate may record the hearing to assist in preparing a recommendation as required by § 8.13.11. If the Special Magistrate makes such a recording, it will be forwarded to the city with the recommendation, but will be subject to the restrictions on information contained in § 8.13.10H.

g.

Any documents or tangible materials presented to the Special Magistrate at hearing shall be submitted to the Mayor of the Cape Coral City Council with the Special Magistrate's recommendation. Any notes or drafts produced by the Special Magistrate and not intended to record information in a permanent form shall remain the property of the Special Magistrate.

h.

If a party fails to appear at the hearing after notice, the Special Magistrate may proceed without that party or may adjourn the hearing to another day, giving notice to the absent party.

i.

Information may be given and parties, participants, or their representatives may participate by telephone, videotape, or other communications medium unless otherwise agreed in a Special Magistrate agreement.

6.

Witnesses and materials.

a.

Each party must assure attendance at the hearing by those persons qualified by training or experience to address issues raised by the request for relief, by the response, or by the Special Magistrate, or to address alternatives, variances, and other types of modifications to the development order or enforcement action.

b.

The Special Magistrate may issue a subpoena for any nonparty witness in the state who will aid in the disposition of the matter. A subpoena issued by a Special Magistrate may require the witness to bring a specified document or thing.

c.

The Special Magistrate may require and receive documents and other tangible materials from any party or participant. All parties and participants shall have the opportunity to examine and respond to such submissions.

d.

The Special Magistrate may weight the credibility of witnesses.

e.

Although an attorney is not required, any person compelled to appear or furnish documents or tangible materials, or who appears voluntarily, may be represented and advised by legal counsel at his or her own expense.

7.

Access to the property.

a.

A request for relief constitutes a consent by the owner for the Special Magistrate and parties or representatives to have reasonable access to the owner's land.

b.

The owner may grant access to the land to participants.

8.

Offer to compromise.

a.

As provided by law:

i.

All actions or statements of the Special Magistrate, the parties, and all participants are evidence of an offer to compromise and are inadmissible in any judicial or administrative proceeding.

ii.

The proceeding may not be made known by a party or participant to any judicial or administrative tribunal, or be construed for any purpose as an admission against interest.

b.

A party or participant is not bound by anything said or done during the proceeding unless a written settlement is reached, in which case only the terms of the written settlement shall be binding.

c.

The Special Magistrate may not be called to appear before the City Council with respect to any aspect of the proceeding, nor may the Special Magistrate be compelled to furnish notes or drafts.

R.

Settlement.

1.

The owner and the city may enter into a settlement agreement or other agreement as to the permissible use of the owner's land prior to the Special Magistrate filing a recommendation under § 8.13.11.

2.

A settlement agreement or other agreement as to the permissible use of the owner's land may be executed subject to approval by the City Council. Any such agreement will not bind any party until duly approved and executed by all parties to the agreement.

S.

Post-hearing procedures.

1.

Special Magistrate's recommendation.

a.

The Special Magistrate shall file a recommendation with the Mayor within 14 days after the conclusion of the hearing. The Special Magistrate shall also furnish a copy of the recommendation to all parties and participants.

b.

If a settlement agreement or other agreement as to the permissible use of the owner's land is executed prior to the Special Magistrate's recommendation, the recommendation shall only:

i.

Set forth the date and location of the hearing;

ii.

Identify the parties and other participants in attendance at the hearing;

iii.

Record, without comment, the fact that a settlement agreement or other agreement as to the permissible use of the owner's land has been executed; and

iv.

Include as an attachment an executed copy of the settlement agreement or other agreement as to the permissible use of the owner's property.

c.

If a settlement agreement or other agreement as to the permissible use of the owner's land is not executed prior to the filing of the Special Magistrate's recommendation, the Special Magistrate will consider the facts and circumstances set forth in the request for relief, any responses, and any other information produced at the hearing to determine whether the development order or enforcement action, by itself or in conjunction with an action of the city or another governmental entity, is unreasonable or unfairly burdens the owner's land.

d.

In making a determination, factors the Special Magistrate may consider include the following:

i.

The history of the land, including when it was purchased, how much was purchased, where it is located, the nature of the title, the composition of the property, and how it was previously used;

ii.

The history of development and use of the land, including what was developed and by whom, if it was subdivided and how and to whom it was sold, whether plats were filed or recorded, and whether infrastructure and other public services or improvements may have been dedicated to the public;

iii.

The history of relevant environmental protection and land use controls and other regulations, including how and whether the land was classified, any uses that may have been proscribed, and what changes in classifications have occurred;

iv.

The present nature and extent of the land, including natural and altered characteristics;

v.

The reasonable expectations of the owner at the time of acquisition or immediately prior to the implementation of the regulation at issue, whichever is later, under the regulations then in effect and under common law;

vi.

The public purpose sought to be achieved by the development order or enforcement action, including the nature and magnitude of the problem addressed by the underlying regulations on which the development order or enforcement action is based; whether the development order or enforcement action is necessary to the achievement of the public purpose; and whether alternative development order or enforcement action conditions would achieve the public purpose and allow for reduced restrictions on the use of the owner's land;

vii.

Uses authorized for and restrictions placed on similar property, including adjacent lands; and

viii.

Any other information determined to be relevant by the Special Magistrate or agreed by the parties to be addressed by the Special Magistrate.

e.

The Special Magistrate shall utilize his or her expertise in formulating a recommendation and, in applying this expertise, shall rely upon the sort of information. that a reasonable, prudent person would rely on in the conduct of his or her affairs.

f.

If the Special Magistrate determines the development order or enforcement action, by itself or in conjunction with another action of the city or another governmental entity; is reasonable and does not unfairly burden the owner's land, the Special Magistrate shall recommend that the development order or enforcement action remain undisturbed.

g.

If the Special Magistrate determines the development order or enforcement action, by itself or in conjunction with another action of the city or another governmental entity, is unreasonable or unfairly burdens the owner's property; the Special Magistrate shall recommend one or more alternative actions that protect the public interest served by the regulations at issue but allow for reduced restraints on the use of the owner's real property. The alternatives may include the following:

i.

An adjustment of land development or permit standards or conditions controlling the development or use of the owner's land;

ii.

Increases or modifications in the density, intensity, or use of areas of development;

iii.

The transfer of development rights;

iv.

Land swaps or exchanges;

v.

Mitigation, including payments in lieu of on-site mitigation;

vi.

Location of the development or use at issue on the least sensitive portion of the property;

vii.

Conditioning the amount of development or use permitted on the owner's land;

viii.

A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development;

ix.

Issuance of the development order, a variance, special exception, or other extraordinary relief, including withdrawal of the enforcement action;

x.

Purchase of the owner's land, or an interest in it, by the city or another governmental entity; and

xi.

If an apportionment of responsibility among governmental entities is necessary, the Special Magistrate shall make such apportionment.

h.

The Special Magistrate shall furnish a copy of the written recommendation to the Florida Department of Legal Affairs.

i.

The Special Magistrate's recommendation is a public record. A copy shall be available for public inspection and copying at the City Clerk's office.

T.

Effect of Special Magistrate's recommendation.

1.

The Special Magistrate's recommendation is advisory and not binding on the owner or the City Council.

2.

A Special Magistrate's recommendation constitutes data which shall be considered with respect to any pertinent amendment to the Comprehensive Plan.

3.

A Special Magistrate's determination that the development order or enforcement action, by itself or in conjunction with actions of the city or another governmental entity, is unreasonable or unfairly burdens the owner's land may serve as an indication of sufficient hardship to support modifications, variances, or special exception to the application of statutes, rules, regulations, or ordinances to the subject property as otherwise authorized by applicable rules and regulations.

U.

Disposition of Special Magistrate's recommendation.

1.

Within 45 days of receipt of the Special Magistrate's recommendation, the City Council shall:

a.

Accept the recommendation as submitted and implement it in the ordinary course and consistent with all other rules and regulations;

b.

Modify the recommendation as submitted and implement it in the ordinary course and consistent with all other rules and regulations; and

c.

Reject the recommendation as submitted. Failure to act within 45 days of receipt of the recommendation shall be deemed a rejection, unless the owner and the city agree to an extension of time.

2.

If the City Council adopts a recommendation to grant a modification, variance, or special exception to the application of ordinances or regulations as they otherwise would apply to the land, the owner shall not be required to duplicate processes in which the owner previously has participated in order to effectuate the modification, variance, or special exception.

3.

If the Special Magistrate recommends relief or other action in conjunction with another governmental entity, the City Manager and/or his or her designee shall confer with appropriate staff from the other entities to review the recommendation and determine whether a joint staff recommendation can be made to the heads of the respective governmental entities.

4.

Within 15 days after final action on the Special Magistrate's recommendation by the City Council, the City Clerk shall send a copy of the order or other document memorializing final action to the Florida Department of Legal Affairs.

5.

Within ten days of final action on the recommendation, the owner shall notify the City Manager in writing whether the owner accepts the decision on the recommendation.

6.

If the City Council accepts the recommendation or modifies it and the owner rejects the acceptance or modification, or if the City Council rejects the recommendation, the City Council shall issue a written decision that describes as specifically as possible the use or uses available on the owner's land. The decision shall be issued within 30 days of final action on the recommendation.

7.

After the City Council has acted on the Special Magistrate's recommendation and a written decision has been issued describing the use or uses available on the owner's land, or if the City Council has not acted within 45 days, the owner may seek a formal adjudication on the development order or enforcement action as otherwise authorized by law.