Shaughnessy v. Metropolitan Dade County

• Decision Date: 11 August 1970
• Docket Number: No. 69--958,69--958
• Citation: 238 So.2d 466
• Parties: Norma D. SHAUGHNESSY, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 466

238 So.2d 466

Norma D. SHAUGHNESSY, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.

No. 69--958.

District Court of Appeal of Florida, Third District.

Aug. 11, 1970.

Rehearing Denied Sept. 3, 1970.

Horton & Schwartz, Miami, and Robert W. Shaughnessy, Perrine, for appellant.

Thomas C. Britton, County Atty., and St. Julien P. Rosemond, Asst. County Atty., for appellee.

Before CHARLES CARROLL, BARKDULL and HENDRY, JJ.

PER CURIAM.

The appellant seeks review of an order of the circuit court denying her petition for writ of certiorari, whereby she sought review of an order of the appellee granting an unusual or special use on certain property adjoining land owned by her.

One Robert J. Lewis owns ten acres of land adjoining twenty acres owned by the appellant. Lewis filed an application for an unusual use for the purpose of constructing a water and sewage utility plant to service the adjacent land. The proposed unusual use was recommended for a approval by the Building and Zoning Department, subject to approval by the Pollution Control Department, the Department of Health, and the Dade County Water and Sewer Board. The Pollution and Control Department recommended against the plant. However, the matter went before the Zoning Appeals Board which, after notice and hearing, deadlocked at a 2 to 2 vote to deny the application, at which time the matter was set over to be voted upon on October 9, 1969 without further notice or public hearing. ¹ On October 9, 1969, in open hearing, the Board approved the unusual use application by a vote of 2 to 0, the balance of the quorum abstaining in accordance with the applicable rules of the Board. ² On appeal, the Dade County Commission affirmed the Zoning Appeals Board. ³ Thereafter, the appellant petitioned the circuit court for a writ of certiorari seeking review of the Commission's order. The circuit court entered the order appealed herein, denying the petition for writ of certiorari and dismissing the cause with prejudice.

Upon appeal, the appellant contends the trial court erred in the following particulars: (1) That the Zoning Appeals Board failed to abide by the provisions of § 286.011, Fla.Stat., F.S.A., in that it failed to give the required public notice of the meeting held on October 9, 1969. (2) That the appellant was not afforded due process by the Zoning Appeals Board by virtue of its failure to advertise notice of the second hearing, and by irregular vote of the Board. (3) That the actions of the Zoning Appeals Board and the Dade County Commission are not fairly debatable and are not supported by substantial, competent evidence; thus they should be reversed.

As to the first contention, as pointed out by footnote (1), the Board was entitled to continue its public hearing of September without further notice. This is in accordance with the general authorities. Moskovitz v. City of St. Paul, 218 Minn. 543, 16 N.W.2d 745; Boynton Cab Co. v. Giese, 237 Wis. 237, 296 N.W. 630; 2 Am.Jur.2d, Administrative Law, § 362. As to the 'sunshine law' (§ 286.011, Fla.Stat.), all official action of the Board as it appears from this record was taken in open public meeting and this did not violate either the provisions of the statute or the decisions of the several appellate courts construing same. Compare Times Publishing Company v. Williams, Fla.App.1969, 222 So.2d 470; Board of Public Instruction of Broward County v. Doran, Fla.1969, 224 So.2d 693; Canney v. Board of Public Instruction of Alachua County, Fla.App.1970, 231 So.2d 34; City of Miami Beach v. Berns, Fla.App.1970, 231 So.2d 847. Therefore, we find no merit in this point.

Considering the second error urged by the appellant (the failure to give notice and irregular vote), this contention has been answered adversely by the authorities cited above in disposing of the first point raised on appeal. As to the latter part of this second alleged error, it is true that less than a majority of the Board voted to approve the unusual or special use; but the requirement of the rules of the Board is that a majority of the Board constitutes a quorum. ⁴ And, in order to take an affirmative action, it is necessary only that a majority of those Present and voting concur in the action. ⁵ We conclude that with a quorum present there was at least a majority of those voting approving the unusual or special use. Members of a board abstaining from voting are counted for purposes of a quorum (Rushville Gas Co. v. Rushville, 121 Ind. 206, 23 N.E. 72; State ex rel. Drummond v. Dillon, 125 Ind. 65, 25 N.E. 136; Anno., 43 A.L.R.2d 698, p. 723, § 9; Roberts Rules of Order Revised, § 64, p. 257), although they may not necessarily by counted in determining whether an issue has been accorded a sufficient vote to constitute the action of a board. Rushville Gas Co. v. Rushville, supra; Anno., 43 A.L.R.2d 698, p. 723, § 9; Roberts Rules of Order Revised, § 46, p. 191; Compare State ex rel. Miller v. Marshall, 135 Fla. 214, 184 So. 870. Therefore, we find no merit in this contention.

As to the third and final point, the burden is on an appellant to make it appear from the record that there is no substantial, competent evidence to support the granting of the unusual or special use. On certiorari review, the trial court was required to deny the writ of certiorari where the matter was fairly debatable. Metropolitan Dade County v. Kanter, Fla.App.1967, 200 So.2d 624; Town of North Redington Beach v. Williams, Fla.App.1969, 220 So.2d 22. Examining the record in light of these principles, we find competent, substantial evidence that the granting of the unusual or special use was at least fairly debatable and, therefore, the trial court correctly refused to disturb the action of the County authorities. Edelstein v. Dade County, Fla.App.1965, 171 So.2d 611; Smith v. City of Miami Beach, Fla.App.1968, 213 So.2d 281; City of St. Petersburg v. Aiken, Fla.1968, 217 So.2d 315; Metropolitan Dade Couty v. Greenlee, Fla.App.1969, 224 So.2d 781.

We further note that there is a serious question as to whether or not the appellant should have been entitled to maintain the action in the trial court and in this...