Discussion Outside the Public Hearing is Generally Not Permitted in Zoning Matters
By Hans Ottinot, City Attorney

Imagine the difficulty of advising elected officials that they should refrain from talking to close friends and potential developers about a development project that may impact their quality of life.

Since a Florida appellate court ruled that ex parte contacts, which are contacts with one party when the other party is not present to hear them, were inherently improper, local government attorneys in Miami-Dade County have the difficult task of advising elected officials that they should not discuss pending zoning applications with close friends or anyone else outside the public hearing context because of the "Jennings Rule".

The court ruled that ex parte contact was inherently improper and prejudicial because the zoning applicant met with elected officials privately, prior to the elected officials making a favorable decision on the applicant's application.

Simply put, the Jennings Rule prohibits communications between an elected official and an interested party regarding pending zoning applications. The Jennings Rule was created by the court to prevent unfairness in quasi-judicial proceedings, which are proceedings where the City Commission is applying law to the set of facts. Therefore, when the City Commission reviews and approves site plan applications, the zoning hearing is a quasi-judicial proceeding.

Realizing the headaches created by the Jennings Rule, the Florida Legislature enacted a law that provides elected officials with the ability to communicate with interested parties about pending zoning applications. The law permits cities and counties to adopt ordinances that eliminate the presumption of prejudice from ex parte communications with local public officials. The ordinance, however, must prescribe procedures for disclosing ex parte communications.

The Jennings Rule does not apply to the City Commission of the City of Sunny Isles Beach because the City Commission has adopted an ordinance that provides for the disclosure of ex parte communications. The City's ordinance requires an elected official to disclose ex parte communications prior to or during a public hearing regarding a zoning application.

While local government attorneys have a difficult task of advising elected officials about the Jennings Rule, the elected officials have the difficult task of telling a good friend that we cannot talk in private about a pending zoning case, unless you want the public to know about our communications.

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