City of Coral Gables v. Sackett, 71--810

• Decision Date: 28 September 1971
• Docket Number: No. 71--810,71--810
• Citation: 253 So.2d 890
• Parties: CITY OF CORAL GABLES, a municipal corporation, et al., Appellants, v. Joseph SACKETT, Appellee.
• Court: Florida District Court of Appeals

Page 890

253 So.2d 890

CITY OF CORAL GABLES, a municipal corporation, et al., Appellants, v. Joseph SACKETT, Appellee.

No. 71--810.

District Court of Appeal of Florida, Third District.

Sept. 28, 1971.

Rehearing Denied Nov. 23, 1971.

Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., George N. Jahn, Miami, Frank W. Guilford, Jr., Coral Gables, Sibley, Giblin, Levenson & Ward, Miami Beach, for appellants.

Adams, George & Wood, Miami, for appellee.

Before PEARSON, CHARLES CARROLL and HENDRY, JJ.

PER CURIAM.

This is an appeal by the defendants below from an adverse judgment by which the operation and enforcement of an ordinance granting a requested change of zoning and special use exceptions for certain property were enjoined on the ground the application previously had been denied, and prohibiting the city from considering an application therefor until after the lapse of a certain period, as specified by the city's zoning code in that circumstance.

The owners of a tract of land in the City of Coral Gables made application for change in the zoning thereof and for certain use exceptions. Following a recommendation of the city's Planning and Zoning Board ¹ the application for rezoning came before the city commission, ² and an ordinance approving the zoning change application received a favorable vote on 'first reading.' Eight weeks thereafter, on February 9, 1971, the application came before the commission for consideration on 'second reading.' ³ The action taken by the commission with reference to the proposed ordinance on that occasion was to deny it, by a tie vote of four members of the commission with one commissioner not voting. Under Roberts Rules of Order, previously adopted by the commission, the tie vote was a rejection of the motion. The minutes reflected the tie vote, and recited that the motion failed.

The city's zoning code or ordinance contains a provision that rejection of an application for a zoning change will preclude a reapplication therefor or its reconsideration within a year, except upon changed conditions or altered plans deemed by the commission to justify the reconsideration thereof within the year. ⁴ Notwithstanding that prohibition, the commission rescheduled the matter for consideration, as on second reading, for a later meeting, and after certain postponements at the instance of the commission, it was placed on the agenda for a meeting to be held March 23, 1971.

Thereupon the plaintiff, a citized and taxpayer, filed suit against the city in the circuit court, seeking to enjoin such further action thereon by the city on the ground that it was interdicted by the zoning code, in view of the application having been rejected on second reading on February 9, 1971. The owners applied for and were granted leave to intervene as defendants. A temporary restraining order sought by the plaintiff was denied by the trial court, on March 5, 1971. The plaintiff appealed and this court affirmed on March 23, 1971. Sackett v. City of Coral Gables, Fla.App.1971, 246 So.2d 162.

On March 23, 1971, the city commission again entertained the rezoning application (as upon a second reading) and voted affirmatively thereon. The product of that action by the city commission was an ordinance granting the zoning change application.

Thereafter the plaintiff filed an amendment to the complaint (Rule 1.190(d) FRCP), 30 F.S.A. alleging that subsequent action of the commission, charging such action was illegal in that it was prohibited by the zoning code, and seeking injunctive relief therefrom. On final hearing the trial court granted the relief sought, by a judgment entered June 23, 1971.

The city and the intervenor defendants then filed the present appeal from the final judgment which nullified the March 23 approval of the rezoning application. In seeking reversal the appellants present three contentions. One is that the plaintiff was without standing to bring and maintain the action. The other two contentions are that the commission was not precluded from considering the application on 'second reading' on March 23, because the action of the commission on February 9 rejecting the rezoning application was a nullity and void on two grounds; first, due to the failure of one of the five commissioners to vote thereon, and second, because the minutes of the February 9 meeting failed to recite or show that the ordinance was read in full as required by the charter. The foregoing contentions of the appellants were raised in the trial court and were rejected there, as revealed by a memorandum opinion filed by the court upon entering judgment.

We agree with the holding of the trial court that the plaintiff was not without standing to challenge the commission action of March 23, 1971, on the charge and ground that it was performed contrary to a provision of the zoning code and therefore was illegal. ⁵ Also, we agree with the conclusion of the trial court that failure of one of the five commissioners to vote would not render void the action taken by the other commissioners at the February 9 meeting, if otherwise effective.

The remaining contention presents a more difficult problem. The argument of the appellants that the zoning code restriction against such early reconsideration did not preclude the city from taking the matter up at the March 23 meeting because the application had not been legally or effectively denied when it came on for second reading at the February 9 meeting, raises two questions bearing on the validity and effectiveness of the rejection of the ordinance at the February meeting. The first is whether the minutes of that meeting showed regularity of the proceedings, or revealed a fatal irregularity therein, with regard to the charter requirement for a reading in full of the ordinance at that meeting. The second question is whether, if a reading of the ordinance was not shown by the minutes due to their silence on that matter, or if the minutes revealed or indicated that requirement was not performed, then whether a failure to comply with the requirement of the charter for the reading of the ordinance in full operated to render ineffective and void the (rejection) action taken by the commission with respect to the rezoning application at the February 9 meeting.

The minutes of the February 9, 1971 meeting, after naming the officials present and reporting that the minutes of a prior meeting were read and approved, stated: 'The meeting opened with consideration of adoption on second reading of an ordinance, passed and adopted on first reading on December 15, 1970, dealing with an amendment to ordinance No. 1525, as amended, known as the 'Zone Code' by changing the zoning and granting special and qualified uses on various portions of that certain property described as 'Cocoplum Beach Property" (giving the location thereof). The minutes then noted the number of persons present, and made certain recitations as to arguments of proponents and opponents, following which the minutes stated: 'A lengthy discussion followed after which a motion was made by Commissioner Phillips that the ordinance be placed on second reading, with the provision that the deed restrictions submitted by the owners be approved by the City Attorney to cover the intent of the purposes for which offered and subject to the Master Plan being submitted to the Zoning Board for final approval. The motion seconded by Mayor Dressel, who relinquished the Chair to Vice Mayor Kerdyk, Failed by the following roll call: 'Yeas'--Commissioner Philips; Mayor Dressel. Abstention--Commissioner Murphy. 'Nays'--Commissioner Philbrick; Vice Mayor Kerdyk.' That was followed in the minutes by recitation of the making and rejection of several substitute or amendatory motions with reference to the ordinance under consideration, and a statement of the closure of the meeting.

In Ramsey v. City of Kissimmee, 111 Fla. 387, 149 So. 553, firm of civil engineers, alleging they had been employed by the city, filed an action to recover compensation for their services for partial performance under their alleged contract. The charter required contracts for more than $300, such as the one declared upon, to be made by the city commission. Under another provision of the charter such action was required to be done through passage of an ordinance or written resolution by the commission. The minutes of the meeting in question (in the language of the Court) 'showed a resolve by the city commission to employ Ramsey and Herndon as city engineers, contract to be later executed by the proper parties.' Although that disclosure in the minutes was recognized as not being inconsistent with a contract having been made with the engineers, the minutes were regarded by the Court as having failed to show whether or not the commission had taken the action necessary to effectuate a valid contract, and the Court there stated that the duty to make a record of what the commissioners did at the meeting required that the minutes show the action of the commission with respect to such matter. In that case it was necessary, in order for the plaintiffs to recover, for them to show that a contract had been made with them by the commission in accordance with the charter requirements. Because the minutes were silent on the point, and were so imperfectly drawn that they did not show whether the required action was or was not performed, it was held that the fact of whether the required action was taken by the commission at the meeting in question could be established by evidence aliunde the minutes. In that case the Supreme Court, speaking through Chief Justice Davis, said (149 So. at 555):

'* * * A distinction is drawn between the right to offer evidence to contradict facts stated on the record, as distinguished from the showing of action taken which was never properly recorded on the record.

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