Sackett v. City of Coral Gables

• Decision Date: 23 March 1971
• Docket Number: No. 71--235,71--235
• Citation: 246 So.2d 162
• Parties: Joseph SACKETT, Appellant, v. CITY OF CORAL GABLES, a municipal corporation and political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 162

246 So.2d 162

Joseph SACKETT, Appellant, v.CITY OF CORAL GABLES, a municipal corporation and political subdivision of the State of Florida, Appellee.

No. 71--235.

District Court of Appeal of Florida, Third District.

March 23, 1971.

Rehearing Denied April 21, 1971.

Adams, George & Wood, Miami, for appellant.

Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., George N. Jahn, for appellee.

Before PEARSON, C.J., and CHARLES A. CARROLL and HENDRY, JJ.

PER CURIAM.

Plaintiff-appellant Sackett, brings an interlocutory appeal to review an order denying a petition for a temporary injunction directed against defendant-appellee the City of Coral Gables.We affirm the order appealed; we vacate the constitutional stay writ heretofore entered.

Appellant is a citizen and resident of Coral Gables and an owner of real property adjoining a tract of land of roughly 500 acres known as the Cocoplum Properties.His suit requesting a temporary and permanent injunction is to prevent further action by the City Commission on a proposed amendment to the Coral Gables Zoning Code, OrdinanceNo. 1525, which would rezone portions of the Cocoplum tract.

Section 14 of the Charter of the City of Coral Gables, Flordia Chapter 13972, Special Acts of the State of Florida1929, (hereinafter the 'Charter') provides:

'Sec. 14 Ordinances, form procedure; publication.

'The Commission shall act only by ordinance or written resolution * * * No ordinance shall be passed until it has been read on two separate days or the requirement of readings on two separate days has been dispensed with by a four-fifths vote of the members of the Commission.The final reading shall be in full.The yeas and nays shall be taken upon the passage of all ordinances or resolutions and entered upon the journal of the proceedings of the Commission, and every ordinance or resolution Shall require on final passage the affirmative vote of a majority of all its members. * * *'(Emphasis added.)

Similarly, Section 13 of the Charter requires that:

'* * * No resolution shall be adopted or order made unless three votes are recorded in favor thereof.'

On December 15, 1970, the five-member City Commission passed the amendment to the zoning ordinance on first reading by a vote of four 'yea' and one 'nay' vote on a non-emergency and non-exceptional basis.On February 9, 1971, the proposed amendment was scheduled as an agenda item for its second reading.The vote was two 'yea,' two 'nay,' and one abstention.The minutes of the February 9th meeting noted that the motion to pass the amendment'failed.'Three other motions dealing with the proposed zoning ordinance also 'failed' according to the official minutes.

Section 12.09 of the Zoning Code, Ordinance 1525, provides as follows:

'Section12.09 LIMITATIONS OF SUBSEQUENT APPLICATIONS.Whenever any application for a variance or change of zoning shall have been Finally determined, no other or further application for a variance or change of zoning with reference to the particular property affected by said application, or with reference to other property similarly situated, will be considered for a period of one (1) year following the date of such action. * * *'(Emphasis added.)

Section 12 of the Charter allows the Commission to adopt its own rules of procedure:

'The Commission may determine its own rules of procedure.* * * A majority of all members of the Commission shall constitute a quorum to do business, but a smaller number may adjourn from time to time.'

By ResolutionNo. 9920, passed April 16, 1963, the Commission adopted Roberts' Rules of Order (rev'd.)

The record does not reveal whether the Commission did modify, suspend, or waive its Rules in considering this matter, nor whether the Commission considered or passed a motion for reconsideration or rescission.We assume from the briefs and oral argument that the Commission has not waived its Rules or reconsidered the matter.

When the instant proposed amendment to the Zoning Code was placed on the Commission agenda for March 9, 1971, (but was rescheduled for the March 12 meeting)appellant instituted this suit on March 1, 1971, for a temporary and permanent injunction against the City.The developers were permitted to intervene as partydefendants and were present at the hearing on appellant's petition for the temporary injunction.The developers are also appellees herein.Testimony was taken and the Charter and Ordinances quoted above were introduced in evidence.After argument the trial court denied the petition for a temporary injunction, and Sackett appealed.

The instant suit is not a zoning case.By this suit the appellant attempts to enjoin actions already taken by the City Commission; he alleges such actions, which involve the Commission's setting the zoning question down as an agenda item on March 9th and 12th, are in excess of the power granted to it under the Charter by the State.Thus, the merits of the underlying zoning matter are not before us for consideration.Neither is the sufficiency of the complaint now before us, for the City and the developers have not cross-assigned as error the denial of a motion to dismiss the complaint.

The question before us is whether the lower court abused its discretion in refusing to grant a temporary injunction to preserve the status quo pending a final determination of the merits.We hold that the lower court did not abuse its discretion.The rule to be applied is that the relief should be awarded only in clear cases, reasonably free from doubt, and when necessary to prevent great and irreparable injury, and the complainant has the burden of proving the facts which entitle him to relief.42 Am.Jur.2dInjunctions§ 26, p. 761.

In the case of New Orleans Waterworks Co. v. New Orleans(1896), 164 U.S. 471, 481--482, 17 S.Ct. 161, 41 L.Ed. 518, the United States Supreme Court was called upon to decide whether the Circuit Court was correct in sustaining a demurrer to a bill of complaint, and dismissing the suit in equity.The relief requested was, inter alia, 'that all the said acts, resolutions, and grants sought to be made by the defendant(City of New Orleans) to persons or corporations, * * * are null, void, and of no effect * * *'id. at 478--479, 17 S.Ct. at 164.In two earlier cases the United States Supreme Court had determined that certain legislation limiting monopolistic rights to private utility corporations for the furnishing of water violated the contracts clause of the United States Constitution.Mr. Justice Harlan, speaking for the court, at pages 480--482, 17 S.Ct. at page 165, had occasion to discuss a problem quite similar to that posed in the instant interlocutory appeal:

'Ought the court to have proceeded to a decree, or held the bill to be sufficient for relief, as between the plaintiff and the city? * * *

'* * * If it be said that a final decree against the city enjoining it from making such grants in the future, will control the future action of the city council of New...