HomeMy WebLinkAboutMinutes Council 020493CITY COUNCIL
REGULAR MEETING
-- CITY OF PALM BEACH GARDENS
FEBRUARY 4, 1993
The Regular Meeting of the City Council of the City of Palm
Beach Gardens, Florida, was called to order by Mayor Martino
at 8:00 P.M., in the Assembly Room of the Municipal Complex,
10500 North Military Trail, Palm Beach Gardens, Florida; and
opened with the Pledge of Allegiance to the Flag.
ROLL CALL The City Clerk called the roll and present were Mayor
Martino, Vice Mayor Russo, Councilwoman Monroe, Councilman
Jablin and Councilwoman Furtado.
ANNOUNCEMENTS The Mayor stated the announcements were as posted on the
City's Bulletin Boards.
_ITEMS BY THE
rY MANAGER
ARTI GRAS The City Manager reported Northern Palm Beach Chamber of
Commerce had requested Council approval to hold the 1993
Arti Gras Festival at the NorthCorp Center on February 13,
14 and 15, 1993.
In response to the City Manager, Michele Lamey, Acting
Executive Director, stated the police and fire departments
and the ambulance service had given their approval and a
site plan and proof of insurance would be provided to the
City. Ms. Lamey stated there would be only one main stage
for entertainment this year.
SOVEREL HARBOUR
LANDSCAPING The City Manager stated Resolution 105, 1989 approved the
C?TY COUNCIL REGULAR MEETING, 2/4/93 PAGE 2
temporary landscaping for the Soverel Harbour entry drive
for a period of three years or until the CO was issued for
the hotel complex, whichever occurred first. The City
Manager stated it did not appear the hotel was to be
constructed in the near future and the City Forester had
indicated the temporary landscaping was superior to the
approved landscaping and requested the City Council approve
the temporary landscaping "as is ".
In response to Mayor Martino, Attorney Brant stated he
recommended a resolution be prepared to adopt the temporary
landscaping as permanent landscaping.
There was a consensus of the City Council directing the City
Attorney to prepare a Resolution for consideration of
adoption at the next Regular City Council Meeting to approve
the temporary landscaping at Soverel Harbour.
JOG ROAD Rich Walton, Director of Planning and Zoning, stated on
February 19, 1993, the Treasure Coast Regional Planning
Council would review the elimination of Jog Road from the
Thoroughfare Plan of the County's Comprehensive Plan. Mr.
Walton stated staff had forwarded a letter to Treasure
Coast, per City Council's direction, in support of the
elimination of Jog Road. Mr. Walton stated the Treasure
Coast staff felt a letter of support from the City Council
would also be appropriate. Mr. Walton stated the Council
had before them a letter prepared for their consideration.
Mayor Martino read into the record the proposed letter to
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 3
Treasure Coast. (copy attached)
Councilman Jablin reported there had been a couple of
meetings regarding the Interlocal Agreement relating to Jog
Road and another meeting would be held on Monday, 2/8/93.
There was a consensus of the City Council to delete the
second sentence in paragraph 2 of the proposed letter.
Vice Mayor Russo made a motion, seconded by Councilman
Jablin, authorizing the Mayor to execute the proposed letter
as amended.
Councilwoman Monroe stated her comments would be the same as
previously stated on behalf of the residents of the eastern
half of the City and she would be voting against the motion.
The motion was approved by a vote of 4 ayes and 1 nay. The
nay vote was cast by Councilwoman Monroe for reasons
previously stated.
M/I HOMES
R TORTOISE
RELOCATION Mr. Walton and Mr. Jim Schnelle, environmental consultant,
reviewed the approved preservation plan for the M/I Homes
proposed residential development. Mr. Walton stated after
further review of the PUD application, staff had found the
proposed site plan did not conform with the preservation
plan approved by Council.
Mr. Schnelle stated the main modifications to the approved
preservation plan would be to relocate 3 tortoises instead
of 2, and preserving 1 less active burrow. Mr. Schnelle
stated there would be only be 3 active burrows preserved in
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 4
the preserve area.
Mr. Walton stated staff recommended, because the highest
quality upland was not being preserved, the petitioner be
"put on notice" that tree preservation requirements would be
adhered to and preservation of existing trees on the
developed portions of the project would be expected.
In response to Vice Mayor Russo, Mr. Walton stated the
petitioner was ready to go before the Planning and Zoning
Commission and although this was not a major change in the
preservation plan, it was not exactly what the City Council
had approved in October, 1992.
Mayor Martino stated for the developer to be in compliance
with the City's Comprehensive Plan, the site plan for this
development should incorporate the pedestrian paths and link
the set aside areas.
There was a consensus of the City Council to allow the
Petitioner to proceed to the Planning and Zoning Commission.
RESIGNATION John L. Orr read into the record his retirement resignation
letter as City Manager of the City of Palm Beach Gardens,
effective March 31, 1993. (copy attached)
Mayor Martino praised Mr. Orr on his administration of the
City for the past 19 years and reluctantly accepted Mr.
Orr's resignation.
Vice Mayor Russo praised Mr. Orr as the best City Manager he
had worked with and thanked him for making the City what it
CITY COUNCIL REGULAR MEETING, 2/4/93
PAGE 5
was today.
Vice Mayor Russo expressed concerned with the effective date
of Mr. Orr's resignation, as at the present time the City
is without an Assistant City Manager.
Mr. Orr stated if his successor was not selected by March
31, 1993, he would be willing to stay as long as the Council
requested. Mr. Orr recommended using a search firm to help
in coordinating applicants for the City Manager position.
Councilwoman Monroe stated she appreciated Mr. Orr's ability
to keep the low millage rates for the city over the past
several years.
In response to Councilwoman Monroe, Mr. Orr stated he would
like to retire on March 31st, however, any services after
that date could be negotiated on a per diem basis.
In response to Councilwoman Monroe, Attorney Brant stated
Mr. Orr's request for indemnification on pending litigation,
except for criminal violations, should be continued.
Vice Mayor Russo stated he would like to make sure
everything ties in with the insurance coverage.
In response to Mayor Martino, Attorney Brant stated he would
suggest drawing up a contract in response to the tender of
the resignation by Mr. Orr.
Mr. Orr recommended his continuing to assist on the golf
course litigation and suggested forming a committee of Vice
Mayor Russo, Don Kepler and himself so the Council could be
kept informed on the legal issues. Mr. Orr stated he would
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 6
not request any enumeration to continue working on golf
course litigation.
There was a consensus of the City Council to accept Mr.
Orr's resignation letter as presented and directed Attorney
Brant to draw up the papers required.
ITEMS BY MAYOR
AND COUNCIL
COUNCILWOMAN
MONROE
MISSION STATEMENT Counci1 won an Monroe stated the Council had received a copy
of the mission statement proposed by the North Area Planning
Group. The Planning Group had requested the mission
statement be presented to all local governments, municipal
and County, to get a consensus of the respective boards and
a statement that the respective governments were interested
in proceeding. Councilwoman Monroe stated this was a forum
to get everyone talking and looking toward the future.
Councilman Jablin made a motion, seconded by Councilwoman
Furtado, for the City Council to accept the mission
statement and authorized Councilwoman Monroe to proceed with
the process.
Mayor Martino expressed concern that nothing in the mission
statement mentioned the comprehensive planning efforts of
the local governments and there was no suggestion they would
respect home rule or municipal governments. Mayor Martino
stated he did not have a problem with a charrette, however,
felt the mission statement was too open -ended and too all-
CTTY COUNCIL REGULAR MEETING, 2/9/93 PAGE 7
encompassing for him to consider at this time.
Vice Mayor Russo stated he was concerned the mission
statement was not focused and concerned that everything
could not be accomplished.
The motion was approved by a vote of 4 ayes and 1 nay. The
nay vote was cast by Mayor Martino for reasons previously
stated.
There was a consensus of the City Council to direct the
Mayor to write a letter to the Steering Committee outlining
the consensus of the Council.
Councilwoman Monroe suggested forming a committee or ask for
volunteers to review the City's Charter.
Vice Mayor Russo stated he would want qualified individuals,
i.e., former council member, attorney, etc., to be on the
Charter Review Committee and have each council member
appoint one person.
There was a consensus of the City Council to place on a
workshop agenda the creation of a task force to study the
City's Charter.
In response to Councilwoman Monroe, the City Manager stated
the Council would need to schedule a meeting to discuss the
County's proposal and any other options regarding emergency
medical service.
There was a consensus of the Council that the EMS Committee
was no longer needed.
'UNCILMAN
,..-.BLIN Councilman Jablin reiterated his previous comments regarding
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 8
the proposed interlocal agreement re: Jog Road.
COUNCILWOMAN
FURTADO Councilwoman Furtado stated it had been brought to her
attention there had been some serious problems affecting the
residents of Holly Drive with churches and homes being
vandalized. Councilwoman Furtado stated children being
bussed to the high school were not attending school,
however, they were staying in the area.
The City Manager stated at one time the high school had a
policy that required students to stay on campus, however, it
seemed the policy was no longer in effect. The City Manager
stated he had requested the police keep a closer watch on
the area. The City Manager stated the City will speak with
the principal and /or school board and request the policy be
reinstated.
In response to Councilwoman Furtado, the City Manager stated
she may pick up a copy of the engineer report re: Holly
Drive.
Councilwoman Furtado stated she had received calls from
residents in the Steeplechase, Horseshoe Acres, Hunt Club
and Cypress Hollow area and several of the doctors in the
area had formed a task force to work with the Solid Waste
Authority, the Health Department, and etc. re: concerns over
the land fill. Councilwoman Furtado stated she had been
asked to be the liaison between the task force and other
interested parties.
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 9
In response to Vice Mayor Russo, Councilwoman Furtado stated
the wells had been dug and testing was being performed. She
stated the Health Department had tested some of the water
and reports should be received by next week.
The City Manager stated DER was working with the Foundation,
monitoring the test wells and a meeting would be held next
week to review the results and determine a solution.
COUNCILWOMAN
MONROE Councilwoman Monroe expressed concern that she was not
notified re: Vice Mayor Russo signing the Development Order
Interpretation Agreement.
Mr. Walton stated there was a concern regarding the
interpretation of the language contained in the final
development order and DCA had required the interpretation
agreement in order to clarify the intent.
Vice Mayor Russo stated the agreement was nothing more than
what the Council had stated or already approved. Attorney
Brant stated the DCA needed an interpretation and that was
the document Vice Mayor Russo had signed. Attorney Brant
stated it was an administrative task and was within the
legal requirements.
MAYOR
MARTINO Mayor Martino stated there was a letter in the package from
Martin Perry pertaining to the PCD change request to permit
a medical complex as a PCD use on the NorthCorp lands that
the Council denied on 11/6/92.
Attorney Brant stated Mr. Perry had been retained by the
CT.TY COUNCIL REGULAR MEETING, 2/4/93 PAGE 10
owner of the lands in question as to potential trial
counsel. Attorney Brant stated he was in no way
threatening, however, had asked for reasonable expedition if
the council was inclined to give an answer. Attorney Brant
reviewed a previous memorandum citing the Jennings case and
the Snyder case.
Attorney Brant stated a way to overcome a prima facie
prejudice in the future was each time a council member spoke
to an attorney for the petitioner, citizen, or resident,
write down the date and what was discussed. When the matter
then came before the Council, he recommended each council
member read into the record their notes. Attorney Brant
stated a decision needed to be made by the Council no later
V than the next meeting as to what position they wished to
take. Attorney Brant stated the council could grant the
Petitioner a rehearing. The Petitioner would have to refile
and appear before the Planning and Zoning Commission.
Vice Mayor Russo made a motion, seconded by Councilwoman
Monroe, to adopt Attorney Brant's No. 1 option in his
memorandum dated February 2, 1993, to avoid a possible
lawsuit and grant the Petitioner a rehearing. The motion
was unanimously approved by the City Council.
Mayor Martino stated on December 7, 1992, he wrote a letter
to Jackie Winchester, Supervisor of Elections, requesting
consideration of precinct changes to assist the residents of
the northern section of the City. Mayor Martino stated a
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 11
new precinct had been established for the northeastern
section of the City, including the Meadows Mobile Home Park
and the Prosperity Oaks Retirement Center. The residents
would be voting as Precinct 45A at the Amara Shrine on RCA
Boulevard rather than travelling to Howell Watkins Middle
School.
Mayor Martino stated the Palm Beach Post had reported on a
majority decision of the Council concerning some action
regarding an airplane trip and was curious at what meeting
this decision was made. Mayor Martino felt if a poll was
taken by the reporter, that was unethical.
In response to Vice Mayor Russo, Attorney Brant stated if a
reporter contacts them and asks for an opinion, the council
member may respond.
COMMENTS FROM
THE PUBLIC
Sherlyn Baldwin Ms. Baldwin, 10181 Dahlia Avenue, addressed the City Council
regarding the misrepresentation by articles in newspapers of
the number of automobiles the City Manager has driven in the
past 19 years.
Mary Lettenmaier Mr. Lettenmaier, 8 River Chase Terrace, addressed the City
Council and expressed concern why elected officials,
especially County, would vote to put a 6 -1ane highway
through PGA National.
Barry Umansky Mr. Umansky, 10097 Riverside Drive, addressed the City
Council stating he did not feel Jog Road needed to be built
through PGA National.
CITY COUNCIL REGULAR MEETING, 2/4/93
PAGE 12
Prarianne Rogers Ms. Rogers, 511 Club Drive, addressed the City Council
regarding biased articles printed in the Palm Beach Post and
the Garden Times.
Jim DeLonga Mr. DeLonga, 13 Glengary Road, addressed the City Council
re: Mr. Orr's resignation.
CONSENT AGENDA Councilwoman Monroe made a motion, seconded by Vice Mayor
Russo, to approve the following items on the Consent Agenda.
1. Approval of Minutes of Regular Meeting of 1/21/93.
2. Resolution 8, 1993, approval of policy on submittal
deadline date for petitions.
3. Resolution 10, 1993, appointing members to the Board of
Trustees for the Policemen's Retirement Trust Fund of
the City.
4. Resolution 11, 1993, appointing the Supervisor of
Elections for Palm Beach County to canvass the vote and
fully administer the issuance, opening and canvassing
all absentee ballots in any general or special
elections of the City of Palm Beach Gardens.
5. Resolution 12, 1993, appointing Election Officials for
the General Election to be held in the City on 3/9/93
and run -off, if necessary, on 3/23/93.
The motion was unanimously approved by the City Council.
ORDINANCES
ORDINANCE
1, 1993 Mayor Martino declared the Public Hearing open, which was
held on the intent of Ordinance 1, 1993, repealing Chapter
30 of the Palm Beach Gardens Code and adopting a new Chapter
30 as replacement thereof, and was duly advertised on
1/20/93.
There being no comments from the public, Mayor Martino
declared the Public Hearing closed.
Per a consensus of the City Council, the City Clerk read, on
second and final reading, Ordinance 1, 1993.
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 13
Councilwoman Monroe made a motion, seconded by Councilman
Jablin, to adopt ordinance 1, 1993. The motion was
unanimously approved by the City Council.
ITEMS FOR
DISCUSSION
NPBCWCD TRAILER Mr. Walton addressed the Council stating the Petitioner was
requesting a temporary conditional use approval to allow a
temporary trailer on Lot 4 of PGA National Commerce Park in
order for Northern Palm Beach County water Control District
to expand its office facility. Mr. Walton stated the City's
Zoning Code does allow for a temporary conditional use in
any zoning district for an industry requiring a temporary
trailer in the interim of planning for permanent structures
or while the permanent structure was under construction.
Mr. Walton stated the petitioner was requesting a three year
time period for the use of the trailer and the ability to
receive a one year time extension for good cause shown by
subsequent Resolution. Mr. Walton stated the petitioner
indicated NPBCWCD will seek development approval and
commence construction of a permanent facility within the
Commerce Park within three years. Mr. Walton stated the
trailer was 12 foot wide by 60 foot long and would be
located on the west side of the existing building and would
sit back approximately 65 feet from Northlake Boulevard, 32
feet from the adjacent property owner to the west. Mr.
Walton stated the trailer would be connected to the existing
building by a walkway covered with a light red fabric
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 14
awning. Mr. Walton stated the location of the trailer would
require the relocation of one Live Oak and the removal of
one Slash Pine and one Oak Tree. Mr. Walton stated Mark
Hendrickson, City Forester, indicated he had no concern with
the relocation and removal of the tress as presented in his
memorandum to Council dated 2/4/93. Mr. Walton stated the
Fire Department and the Building Department had reviewed the
plans and had expressed no concerns.
Hank Skokowski, representing Petitioner, addressed the City
Council stating the expansion would allow Ecclestone
Signature Homes to expand their CADD operation on a
temporary basis.
Mr. Walton stated David Getz, city Engineer, had reviewed
y the request, and stated he had no concerns provided no
additional employees were hired, which would result in
additional parking requirements and traffic impacts.
Councilwoman Monroe stated she felt the applicants should
plan ahead for additional facilities and not use temporary
trailers and felt it would be prudent for the Petitioner to
utilize existing construction space.
In response to Councilman Jablin, Mr. Skokowski stated the
proposal was to expand the cramped quarters, as well as to
add three staff employees. Mr. skokowski stated he would
respond to the City Engineer regarding the parking
requirements.
Vice Mayor Russo stated he did not like having a temporary
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 15
office for this long period of time, but understood they
were keeping traffic out of the FGA National sites they
could utilize.
There was a consensus of the City Council for staff to
prepare a Resolution to be placed on the Consent Agenda of
the 2/18/93 Regular meeting.
PALM BEACH GARDENS
BUSINESS PARK Attorney Brant stated Mr. Kelly's attorney had requested him
to consider, from the City's position, why a Unity of Title
had been placed as a condition of Resolution 58, 1992.
Attorney Brant stated the condition was to protect the City
in that they would be dealing with one party on the
construction of the site and to ensure the approved
landscaping was provided along Burns Road. Attorney Brant
stated a Unity of Title could impair the borrowing position
for the Petitioner and felt if sufficient restrictions and
requirements were placed upon the Petitioner and a limited
property owners association was formed, there would be no
problem from a legal standpoint of the City.
There was a consensus of the Council directing Attorney
Brant to prepare the necessary documentation for a
resolution to be placed on the Consent Agenda at the next
Regular meeting. Attorney Brant stated this would be a
minor amendment as far as procedure and felt it is
unnecessary to go through Site Plan and Appearance Review
Committee.
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 16
DdRAN
TRI --FLEX Steve Yeckes, representing applicant, addressed the City
Council stating in his negotiations with the City Manager,
he discovered the City Manager was not in favor of either
appraisal obtain and had felt $7,000 to $8,000 would be a
more appropriate price. Mr. Yeckes stated he had a problem
with the concept the City Manager used to arrive at that
figure and felt that was not the direction given by the
Council. Mr. Yeckes stated they had spent approximately
$1,000 for the two appraisals requested by Council.
The City Manager stated he used the appraisals in his
evaluation and felt, by the developer paying per square
foot, the City received a very small value for the property
and the developer received a large value. The City Manager
stated the developer would be able to construct 2 units on
the property now and if the City sold him the additional
square footage, he would be able to construct a third unit.
The City Manager stated the third unit was valued at
approximately $15,000. The City Manager stated he was
willing to split the different of the $15,000 and felt it
was a fair approach.
Mr. Yeckes stated he felt the approach should be based on
square footage value and not unit value.
The City Manager stated he felt there was no way to place an
accurate value on a square foot basis for roadway and the
benefit to the client to add one unit equated to a unit
price.
CITY COUNCIL REGULAR MEETING, 2/4/93 PAGE 17
Mr. Orr felt $7,000 was a fair compromise, however, it was
the Council's decision.
After further discussion, the consensus of the Council was
for the Petitioner to pay to the City $5,000 for the
property.
Mr. Yeckes stated he would take that under consideration
with his client.
Mr. Steve Doran addressed the Council and offered the City
$4,000 for the property.
Mayor Martino stated the Council would take Mr. Doran's
offer under consideration.
LANDSCAPE CODE After discussion by the City Council and Mark Hendrickson,
City Forester, there was a consensus of the City Council to
accept the recommendations from the Planning and Zoning
Commission as detailed in their memorandum dated August 5,
1992, with the following modifications:
3. The Council directed Mr. Hendrickson to itemize what the
property owners of developed single - family lots and duplex
lots were not exempt from.
7. Leave at 1140" feet.
11. Add a paragraph stating that common areas within PUD's
would abide by the pruning standards. Specify that a permit
must be obtained from the City Forester for Class 3 and 4 of
the latest National Arborist Standards which is contained in
the Palm Beach Gardens Handbook and Class 1 and 2 would
require a verbal permit.
CITY COUNCIL REGULAR MEETING, 2/4/93
12. Delete.
PAGE 18
There was a consensus to amend the proposed Ordinance 17,
1992 as follows:
1. Page 23, Section 153.21 Littoral Planting Zones, line 3,
add "wetland" before "trees ".
2. Page 24, Section 153.40, Enforcement, E., develop a
paragraph to deal with acts of nature, i.e., hurricane,
freezes, etc., to be able to relax the 1 month rule of
landscape replacements.
3. Page 27, 153.50 Variances, change "Board of Zoning
Appeals" to "Landscape Committee of Adjustments ".
4. Page 24, 153.40, Enforcement, Non- Conforming Areas,
develop a paragraph requiring non- conforming areas to be
reviewed by the City within a time certain of adoption of
the Landscape Ordinance.
The Council directed Mr. Hendrickson to incorporate the
changes into the Ordinance for first reading.
ADJOURNMENT There being no further business to discuss, the meeting was
adjourned at 11:41 P.M.
CTTY COUNCIL REGULAR MEETING, 2/4/93
a
APPROVAL
ttt�
MAYOR MARTINO
KAAOR RUSSO
LIIN V. KOSIER, CITY CLERK
PAGE 19
COUNCILWOMAN MONROE
COUNC�LAAN JABLIN
COUNCILWOMAN FURTADO
February 3, 1993
TO: Mayor and City Council
FROM: John L. Orr, Ctty Maragesr
I hereby bmit my ptiopment resignation as city Man; - ,4er of the
City of r B s affactive March 31, 1993.
I find it very difficult to submit this letter; however, I can do
so with the know�uge :end gratification that the City of Pam
Gardens has a quality of life second to :lone and has been and wiis
continue to be the paace I call home.
With the tonderstanding that the city will need time for tl$e
selection process of a pRw f'i.ty Manager, I wil? make T,,nelf
available as long as necetsary for an orderly transition. I wia
continue to represent the City on the Seacoast Utility Authority
Board for a minimum of one year or longer.
I will continue to provide the City with my expertise in all
pending litigation and will expect the city to continue providinV
legal defense along with indemnification from all litigation:
v relating to my employment with the City. Any criminal litigatiox
would naturally be excluded.
I will request the Council provide me with 30 days severance pay
upon my retirement.
I will be leaving the City in excellent financial - z:nditiQia with
a low millage rate and essentially debt free. The C ty 4As bpF-._
operated like a business; therefore, we have affordad our citireais
with excellent service and amenities at a very low tax rate.
We should all feel iecy forrsi;nate with what we have accomplished
to date for all the 94cple within the City of Palm Beach Gardens.
Res ectf y submitted,
Accepted as submitted at N
the City Council Meeting - of February 4, 7993.
WILLIAM OMANI
GM+oa[ W. SALPW.N
LAW OFFICES
BRANT ANv BALDWIN
330 FEDERAL HIGHWAY
LAKE PARK, RDRIDA 334M
TELEPHONE (407) $40M
fAC.SMLr (4071 642454
MEMORANDUM
ONAMJM M. PXO=7
UP CVVN"&
T0: Mayor and City Council
FROM: William Brant, City Attorney
Re: Letter from Martin Perry, Esq. pertaining to the
PCD change request to permit a medical complex as
a PCD use on Northcorp lands, denied by Council on
November 6, 1992
DATE: February 2, 1993
I am attaching a copy of the Jennings Case referred to by Mr.
Perry in his letter of January 19, 1993. Cite for the case is
Jennings vs. Dade Co. 589 So.2d 1337 (Fla. App. 3rd Dist. 1991).
The case basically states that when the City is acting as a
quasi - judicial body it shall decide cases solely on evidence presented,
oral and written, plus allow cross- examination of witnesses. In the
event council persons have discussed the case outside of the hearing
with lobbyists, members of the public or City Staff, then what are the
consequences? The Jennings Case suggests a rehearing is mandated as
any outside communication by council persons is prima facie evidence
of prejudice to the Petitioner. On November 6, 1992 only three (3)
members of the City Council ruled on the issue. Councilwoman Monroe
was required to excuse herself.
In the Jennings Case, the Dade County Commission officiated as
an appeal board on a variance issue decided by a Board of Adjustment.
Immediately one would say - what does this 'have to do with rezoning.
would fully agree but for the Snyder Case which is currently before
the Florida Supreme Court with oral argument scheduled for 3131/93.
Cite is Snyder vs. Board of County Commissioners of Brevard County
595 So,2d 65 (Fla_ 5th DCA 1991). The case is great pages in length.
I will furnish copies upon request.
The Snyder Case involves rezoning and is on all points with the
Northcorp decision. The requirements of the Jennings Case as to the
quasi - judicial capacity of the public body hearing the request for
rezoning, and was adopted in the Snyder Case.
Under the Palm Beach Gardens Code, reconsideration of an ordinance
can only be acted upon at the meeting when the ordinance was approved
or disapproved, and no latter than the next succeeding City Council
Meeting. Further, there is no time period required when the same
petition may be refiled.
The council has several altcrnativest
1. In order to avoid a possible lawsuit the council can advise
that it will grant a rehearing. However, Mr. Perry'e client must
refile, appear before the Planning and Zoning Commission. They can
re -adopt their former record. The council must consider an ordinance
on second reading, applying the rules of the Jenninge Casa.
2. Wait until the Snyder appeal is concluded, possible four
months.
3. Allow the disapproval to remain of record and allow Mr. Perry
to take what legal action he deems necessary.
CONCLUSION: I do not know what lobbying of which Councilpersons
took place prior to November 6, 1992. The decision is one of policy.
However, if there was unreported lobbying and the Snyder Case is
sustained by the Florida Supreme Court, I would then recommend that
the City Council reconsider the issue raised by Mr. Perry, follow
the Jennings Case requirements and approve or disapprove the request.
Mr. Perry does not divulge whether his clients` then agents and
attorney spoke with council members on the issue.
RResp �tfully submitted,
WI LIAfuM GRANT, City Attorney
WS:nr
JENNINGS v. DADE COUNTY Fla 13$7
ck. r lee e..as 1117 1PI&AW 3 nut Mil
J., dissents with opinion, with
-rich ISM, HFMEY and CONTHIfIt, Milton S. JENMGS, Appellant,
J. concur. r.
$PONE. Judge, dissenting. DARE COUNTY and Larry
I dissent for the reasons expressed in my SchAttams. Appellees.
Jieaoat to the initial panel decision in Arts Nos. W13U, W192&
VP"L District Coact of Appeal of Florida,
7 ■ Third District
• o ! ur ewal snnn
w:
J
Joseph HENN, Petitioner.
1.
e BANDLER and Iris Sandier,
Respondents.
No. 91 -1634.
riot Court of Appeal of Florida,
Fourth District
Dec. 27, 1991.
on for writ of certiorari to the Cir-
art for Broward County; Lawrence
la, Judge.
lltaloney of Patterson, Maloney &
w, Fort Lauderdale, for petitioner.
to Kaplan of Kaplan & Gaylord,
on Raton, far respondents.
t CURLAM.
grant the petition for certiorari and
the trial courts order of May 24,
See 5mn v. Sandier. 589 So.2d
Pia. 4th DCA 1991) (on motion for
Ing on bane).
AXMIN, CJ., sad LET15 and
MRMR, JJ., concur.
,
+r
' 01tn ■w,usmu,
'nw original opinion of AurW 6.
awn from bound volume publica-
Aug; a 1991.'
On Reheating Granted Dee. 17, 1991.
Landowner petitioned for writ of car•
tforari to challenge trial court order which
dismissed landowners count surging due
process violation as result of ex parte cony
munication between adiseent landownere
lobbyist and county commissioners before
vote approving use variance for adjacent
landowner, which gave to landowner leave
to amend complaint only sgainat county,
and which denied motion to dismiss count
alleging nuisance as result of permitted
use, The Distrct Court of Appeal, Nesbitt,
J., held on rehearing that; (1) landowner's
timely petition activated common -law car
dorad jurisdiction; (2) lobbyises ex parte
communication could violate due process
despite landowner's actual and constructive
knowledge of ex parts communication; and
(9) landowner's prima facie ease of at parts
contacts would give rise to presumption of
prejudice and shift burden to adjacent land•
owner and county to rebut the proaumlr
Lion.
Quashed and remanded.
Ferguton, J., filed concurring opinion
upon grant of rehearing.
1. Zoning and Plannlnr 4=141
Landowner's timely petition activated
common -law certiorari jurisdiction tk rs•
view trial court order which dismissed
count alleging ex parts eommu„iq*don be-
tween adjacent landowner's lobbytat and
county commissionere prior to spproval of
don bomusc It Is superseded by the opLdon ca
reheuinp
i
i
i
j
i
h
I
i
,l
1338 Fie. 689 SOUTHERN REPORTER, !d SERIES
waHsnce, which gave to Landowner kave to
amtnd Complaint only' agnirret county and
t4 transfer mattes' to appellate division Of
circuit Conn, and whkb denied motion tO
dismiss count alleging that use permitted
by varILON Constituted nuisan ; order
was departure iro=n essential requirements
of law and required plaintiff Iandowner to
Migate putative clalth is prooeadi g that
could not afford relict requested.
2. Z,,,ft and Planning *-741
No impediment 6455 to exercise of
jurisdiction over defendant kn& -Iw, in
that common -law ce�r j��oran jurisdiction was
activated by plaintiff landowner's timely
petition.
A. Constitutional L ►w 4=318(1)
Quality of due process required in qua•
sijudicial hearing is not same an that to
which party to full judicial hearing is enti-
tied. Weet's F.S.A. Const. Arc 1, 19:
U.S.C.A. Conat.Amehds, 6, 14.
4. Administrative Law and Procedure
4=811,313
Quasi-judicial proceedings are Rot con•
trolled by strict rules of evidence and pro,
cedars.
L Constitutional I^w 4- 116(1)
Quasi-judicial decision based upon
record L not eomeksive if minimal stan-
dseds of due proeeae are denied. Writ's
F.S.A. Cones Art. 1, 19; U.S.C-A. Coast.
Amends. 6, 14.
S. Cons)tsrtional 14w 4-318(l)
Quasi-judicial hearing generally meets
bait due process requirement If parties
are provided notice of hearing andapportu-
nity to be heard. West's F.S.A. Coast Art.
1, 1 9; U.S.C.A. CbnsLAmends. S. 14.
mves.esamfne witnesses, and ba
of all facts upon whkh ODOM a
7. Zoning and Plslnnins 40359
In quaaqudi sassing proosedintn.
par" most be able to present "Ones,
L Conetltutionsl loser 6wVL2(2),
Ex pane communication bctwee;
owners lobbyist and County Wro- a
before they voted to approve use 'vi
for Mdowner Could .1101st. due 1
despite adjacent lando"ars actual
atructive knowkdge of communktij
failure to sabpoeoa W)bykt
F.S.A. Cont. Art 1, 19; USX.&
Amends. 6, 14.
9. Administrative Law and Prose
w911 '
Ila pane Communications are inh(
ly improper and are anathema to i
judicial proceedings; quasi - judicial o.
should avoid all such contacts where
are identifiable.
lo. Administrative taw and
4-814
occurrence of ex party Communiak
in quurjudieial proceeding does t►ot'
date automatic reversal. ; {
11. Administrative Law and
4-314 f
Allegation of prejudice res,=an
st; parte Contacts with decision ,
quasijudieW proceeding states cause of
tion. 1
}
13. Adn inistrative Law and PruCCdore
0-314
Upon aggrieved party's proof that ex
parse contact occurred with decision mak,
ers in qumi judicial proceeding, its effect 16
presumed to be prejudicial, unless defer•
dant proves oontrary by competence evF
denoe. Weafs F.S.A. 100-3011.
13. Constitutional Law 4- 3180)
In determining prejudicial affect of 0
party communication allegedly violating
JIyNNiNGS v. DADR COUWff FL. 1339
pNrref" fall MkAvp.)MAL 1"1)
,u process in quasi judkW proceeding, trl-
owmer's lobbyist and ;uunty commkeloners
, soars should consider the following erite-
before they toted 1lti approve on variance
ria; what was gravity of ex parts commu-
for landowner, landowner could rely on any
Westim whether contacts may have iafla-
favorable evidence p&sented during adja.
inoed sgeney'e ultimate decision; whether
cent Iandodrneea p)~te in eWsC, hicluding
party nuking improper enntacU benefited
that adduced during' truss examination of
)f}pm agency's ultimate decision; whether
adjacent landowner'A' witnesses. West's
pontenta of communications were unknown
F.S.A.' 90.33.
x
410 opposing parties; and whether vacating
Ageows decision on remand for new
,irooeedings would serve useful ptupose.
ON REHEARING GRAWO
by men F.I.A. Const Art. 1, 19; UB.C.A.
�ConstAmenda. C 14.
.'7
John G. Fibteher, $oath Miami, for sppe6
Sant
'Counties so8g
Robert D. Romer And Roland C, Robin•
son, KiamL Robert A. Ginsburg, County
Allegation of prejudicial ex parts com.
Atty., and Vleen 13411 Mehta and Craig A. ;
niestion in quasi- judicW proceeding be-
Culler. Asst. County Attys., for **Hess.
e ooaaty commiseion anabks party to
�olaln original equitable cause of action
Joel V, Gumer, Miami, for The Sierra
hsh its claim.
Club as Amicus Curiae.
nntles sass
Before BARKDU14' NE9$117 and
Once claim of prejudicial ex parse com-
FERGUSON, JJ.
a in qussi-judiciel proceeding be-
ieotraty commission is established, of-
party will be required to prove
ON REHEARING GRAWO
of prejudice.
NESB17T. Judge.
ng and Planning 4-67111
The issue we confront is the effect of an
owner's prima facia can of ex
ex p&rca communiestion upon a decision
contact between adjacent land-
s lobbyist and county commissioners
emanating from a quasi- judicial proceeding
they voted to approve use variance
of the Dade (county Commission. We hold i.
that upon proof that a quasi - judicial officer t
t landowner would give rise to
of prejudice. West's F.S.A.
received an ere parte contact, a prqumptlo I
aria", pursuot to section 90,30f, Florida
Statutes (2989), that the contact was preju. a
dicial. The aggrieved patty will be entitled ;
and Plan
Planning x678
to a new and complete hearing before the 'G
wnsr's prima facie case of ex
commission unless the defendant proves +U
eDataft between sdjseent land-
that the communication was not, in fad,
a lobbyist and commissioners before
prejudicial Fbr the reasons that follow, ..
to approve use variance for
we quash the order ander review with di
landowner would shift burden to
rectioru.
sad adjacent landowner to rebut
of prejudice. West's F.S.A.
Respondent $chatzman applied for a vs -
lance to permit hhn to operate a quick oll
change business on his property adjacent to
r and planning s-V9
that of petitioner Jennings, The Zoning
rebut presumption of prejudice
Appeals Hoard granted Schatzman's re-
P"te contacts between land-
quest The county comtnlsolon upheld the
perticipeted In emislon a*
C 41i
1840 Fla• 66f 80[l'1'URN MMR2i1t, 9d 91ZRM
a
hoead's decileioa. Bix days prior to the
since the content of ex parts eoo
commission'i action, a lobbyist khatsman
part of floe exisdog rewr4
employed to � assist him In connection with
would prohibit the ae
tM proceedings registered his identity as
contacts' impact on the
required by section 9- 11.1(s) of the Dade
minatioa, 'tine order has the
County Ord$ANx a• Jennhrp did not ab
ra c4y that Salk riag le cell t'
J ean4egs
tempt to det4rmiae the content of any nom
'
muniation between the lobbyist and the
of n'quh'ing him to Mpts in a
commission or otherwise ehalleoge the pro-
&row Thus, Jenniage ftely
prietp of anp communication prior to or at
riveter our COMM" law eerdoearl '
the headeg.
Wn because the order sought to
Foliowing the commission order. Jur
viewed a) constitutes a departure
requirements of taw, and b
sings filed On action for dalamtoty and
quires
quires to litigate a putative slant;
injunctive rebel in circuit dowt wherein he
p�►r1s that cannot afford hhnn
in
alleged that Sehatzrazes lobbyist commu-
lief requested cod for thtF(PWIN
nested with some or all of the county
attord him an adequate
commissioneri prior to the vote, thus deny
tills a. Xilitnau, 87 So
W& Jennings due process both under the
Norris a &Uatrn Bell &t A
United States and Florid& constitutions as
924 So.Bd 108 (Fla. Sd DCA 190 '
well as section (A)(el of the CWzens' Bill of
name reasoning does not apply I
Rights, Dade County Charter. Jennings
Schatzman. Nonetheless, because we
requested the Court to conduct a hearing to
jurisdiction, there b no impediment ''
establish the truth of the allegation of the
exercising It over Schatzman as a
complaint and upon a favorable dstermina•
r"
t") At the outset of our revietr
F
tion then to id®ue an injunction prohibiting
use of the property as allowed by the coun•
trial court's dismissal, we ante iha
(
ty. Based moon the identical allegations,
quality of due process requM bra'
judicial hearing is not the same se
t
Jennings also claimed in the second count
of his complaint that Schatsmen's use of
which a part' to W judiciRi h .
Ow permitted'! variance constituted a nut-
entitled. Sec Gces x Lops, 419 , .
96 S.CL T29, t2 L£d.2d T26 (1916B H
since which he requested the court to on-
° Deportmetfl of Adtaitt, t11 9o.ld
,a
join. 71re iris. court dismissed Count I of
fire complaint, against both Dade County
Wa 190. Quox4udidai proceeding
ij
and SchatsmaO. The court gave Jennings
act controlled . strict rata O. evi
end procednue. See Actors t+.
leave only against Dade County to amend
.
Beal senate Comm tie, 974 SoId 44 (1;1ti.,
i
the complaint and to transfer the matter to
�' 1979): Woodham % MWIt+a;'
the appellate division of the circuit tonrt
(Fn let N
The trial court denied Schst#n'an's motion
�
to dismiss Count n and requa d him to file
thelesa, antsin standard. of basic isiraeea
there , certain rds basic
an answer. Jennings then ti as 'filed this
must be adhered to in order to afford eve
Set Hadley, 411 So.2d at 184]+
'
application for common law �iartioiarL
proce86.
City of ifiami v Jsrvil. 138 tom 518 ( .
[l, 2] we have jurisdiCtiotJ; aged on the
8d DGA 1962), • Consequently. a gnas42&1
Mowing snalssix. The trial purr's order
cis] decision based upon the record is act
I3 -
dismissed Jezm ' equitable fahn of non-
concimd" It minimal standards of due pro-%
i
record ex parts eommuaiea`tidne. while it
seas are decried. See Horgan a United
simultaneously reserved on for
Slots, 898 U.B. 466, 48x-81, 68 6.Ct: 90%
Jennings to *0 nd his oomF oxt so as to
931 -18, 80 LFA 12M (19MY, Wwiern G9-
j
seek common law eertiorari-eV— purew
hWA Inc, % Arizona Cam Cbmmn %1St
. t
sat to Dade C it Ara+clp, S.A., 826
Aris, 641, 592 p.2d 875 (Ct,App.IM7 A
So.2d 189 Ms.1976). Under ftr+ea, Jea•
que6106ial hearing generally meets basic
pings would be' entitled soleW,11a a review
due process requirements It the parties an
of the record au It now ex:W Nowever,
provided! notice of the hearing and m OP
JMINGS Y. DAD9 1 COVN7'f' Fla. 1$41
Coe w JM sets IJR
J ma 1191)
i tuaity to be heard. to quasi-judicial
q fudkW proeesdhcgs. Quio1judlcial
oft proceedinga, the perdes must be
officers should avoid all such contacts
ds to present evidence, amexamine wit.
wheels they are (dentilUble. 13owever, we
saes, and be informed of all the facts
reoognlse the roality ttu►t commissioners
?w which the commission sets. Coral
am ejected oflfdsb in which capacity they
W Murscriss, Ina x Babcock Co., 410
may unavoidably be the recipients of unw.
rw 648, Bbl (Fb. 9d DCA 1984).'
licited ex parts oommuaiations regarding
The reported decisions considering the
qusa$judfcial matters they are to decide.
is process effect of an ex parts oommuni-
The Occurrence of such a communication in
Etion upon s quasi-judicial decision are
a gtulst judicial proceeding does Dot man -
mt&ting. Some eourte bsld that an ex
date Automatic revsrssl. Nevertheless, we
uts communication does net deny due
hold ghat the affeguion of prejudice result.
locos where the substance of the commu-
lot ftom ex parts contacts with the der'
Galion was capable of diseavery by the
sion 'bakers in a quasi-judicial prang
laming party in thne to rebut it on the
states a cause of action. StA, waste
Ses e.p., RiMardaon u Pemles,
Afanooemenh PAX0. Upon the aggriev.
it S. 889, 410, 91 S.CL 1420, 1431 -82,
ed patty's proof that an ex parts contact
` d,2d 842 (1971); United Air Lines,
occurrod its effect to presumed to be preju-
v CAB., 309 F.2d 288 (D.C.Cir.1962);
diciai unless the defendant proves the con-
tl a Scrivener, 225 F.Supp. 827, 834
trary by competent evidence. ¢ 90.304. t
C.1964). Other courts focus upon the
See ponemlly Caldwell u Division qj Re-
of the ex parts communication and
iiremdrrt, 372 Wd 438 (F1a,1979) (for dis-
et was material to the point that it
cussion of rebuttable presumption affect-
the complaining party and thus
ing the burden of proof). Because knowl-
in a denial of procedural due pro-
edge and evidence of the aontaet's impact
Waste !Management u Polls•
are pebaliarly In the WAS of the defendant
GYOntroI Be:, 175 111.App.3d 1023, 12S
quasi - judicial offfcet{s), we find such a bur -
624, 530 N.£.2d 682 (CLApp.1988),
den appropriate. See ZmAnica6k Video
denied 125 11124 575, 130 I11.Dee.
Sys. u Amerieable, 479 So.2d 810 (Fb, Bd
N.E.2d 819 (1989); ProJeerional
DCA 1985); Allstate fynance Corp. a
Controllers Orp, (PAMO) v.
Zinto man, 330 F.2d 740 (5th Cir.1964).
Labor Relations A%&, BSS F.2d
rr
(D.C.2d
1191 In 4stermin3ng the prejudidal ef-
i
_
ru, ffi A D.2d 5, 280 N.YS 2d 865,
5, 29D .YS.2
fect of an ex parts communication, the trial
,
1
court should consider the criteria
which we adopt from PA MO, 686 F.2d at
county adopts the first position
66445: ;
es that
because
(w er, as a result of improper as
tither knew
bare known of he of
)ache
Pare' communications, the agency's des!-
irrevocably
to the mandatory registration
sionmlaking process was t%
tainted so as to make the ultimate judg-
of lobbyists. The county further
ginning
that Jennings failed c to avail him-
meat of the agency unfair, either as to
aectiaa the
of the Dade County
an innocent party or to the public inter
eat th*t the agency was obliged to pro-
subpoena the. lobbyist to teetifq at
tees in making thin determlaation, a
to as to detest and refute the
?rf any ex pared and refute the
,
number of considerations may be rele.
with the county's position
vent the gravity of the ON parts coarma- ,
1�niatidus;
whether the contacts may
pane communiations are in-
SMProper and we anatheau to
We influenced the agency's ultbnate dd-
cdsion; whether the party making On
at Wal arm Ow the
quasi ju ki&
,be comminkm is"qua fuss
i
i
I
)41
j •i
J
I•
1842 Fla, 9M BOU'MRN REPORTIA Ild BERMS
itnpm w contacts benefited from the
sganer's til mats dedsioa; whether the
contents of the oommunipation . were ulr
known to oppoein` parties, who there-
fore had no bpporinaitr to respond; and
whether variation of the ageWs deal -
etoa sod relnaud for new proceedings
would serve a usdw purpose. Since the
prioekpal a AMM of the court nee the
Integrity of Ote Process and tine 41MM
of the resul4i mechanical rules have little
place In ■ *kW dedoiso whether to
vacate a voidable agency proceeding. in-
stead, auy such deddsion must of neeesai-
ty be an exercise of equitable discretion.
Accord E & E #auliny, Jxa v. Pollution
Control Bd, 110 Il1.App,8d 689, 71 t11.Dec.
597. 60, 461 N,1r,Yd 665, 6711CtApp.1983),
t}))"ei, 101 111.24 98, 98 BI.Dw- 821. 481
N,E.2d 981 (1986).
114,161 Aceotdintly, we hold that the
allegation of a WjudkW ex parse commu-
nication in a quasi- judicial proceeding be-
fore the Dade County Com:ninion Will on-
able a patty to maintailt am original sq.
ultable cause of action to establish its
eh►ita. Once eatollsbad, the offending par.
ty Wal be requi:dd to prove an absence of
prejudices
011.191 In the Present ase, Jennings'
complaint does not allege that any commu-
nication whieb did l occur amused him preju-
dice. ConawpeMIy. we direct that upon
remand Jennings Phan be a fonW an op-
portunity to amend his eoMpbtipt Upon
such an amendment, Jennings stall be pro.
vided an "entiatlt baring to present h#s
prima facie case that an Parke contacts
occurrei upon such proof, prejudice shall
be presumed. The burden will 6a shift to
the respondents to'rebut the presumption
that prejudiice occurred to the claimant
L in mch a the pdn*ks sad nwx-
laas d equitY am + Iiubk See 22117+ Jar Yd
Egaaty ij M, a seq.' (19t
1 in 'cb'mtor the mption ( cc. ra
"dent mtay r�eI any to me evldena
Prctented cludUta that inxdthe cootie chtef, lam.
eaamleatios of Ys w110 .s crash
L under the PA?t 0 Oq &dgWWA ass of the
Primary eencowe is %4 t the er parts toul-
Should the respondents Produce sus
Mom to dispel tba presumpdon,
will bsealae the duty of fete trial j
determine the claim in light of all
donee in the ass.+,'
For ohs foregoing reuoua, tha
tion for common law earoocad is 1
The orders of the drank sot
quashed s and rams" with dh
BARXDULL, J., eomettm
FERGUSON, Judge (concurring), i
1 eoncur in the result and write "PC
ly to address two arguments of the ty
lees: (1) This court in Corp! R t f Ara,
isa. Mc v Babcock Co., 410 Sold 948 i
3d DCA 19821, rejected attempts to i
gorise county commission hearings oti
triet boundary changes as '7egielati
while treating hearings on applicatior4
special exceptions or variances as "qi
judicial "; and (Z) the petitiom does
Matt a cause of Mloa by allegleg ate
that a lobbyist discussed the case" 3
private meeting with members of the d
ty Commission prior to the hearing. 1
clear from Judge NesblWa oplrlin tai;
court that neither argument is neap
LV41atist axd Quari4adidal
Axetioxs Dist "d
In support of its argutttent, that "(t
Court has previously "pew attsmpb to
categorize county commission hearings
district boundary changes as 'le& lative'.
while tr+eaft hearings on applications for
special exceptioae or variances me 'quasi ,
judicial;" Dade County dtee Corpl Bell
Nurseri4 Jxc v Babcock Company, 410
Sold 618 (Fla lid DCA 1982). the argil
meat is made for the purpose of bringing
this cane within what the respondents des
munLcatlon had atlfketeat bnpao upon thr dad- .
Sion anti, thado.e, whether the recaneo of rho
ameys daidon acd ranaand for • New pro- i
oeedw mum be a* to dartse die resub. i
S Nothins In "dwWon wisp offen cur hold• I
lag In 104 Willft fe.yt.e of Amarioa r. Aloe•
roe C mrot 646 UM 1170 0% Jd DU IM) �
commtdsa ae t ra a kaWadw ram'
JEMYINGS r. b DE COUNTY M 134$
fate so W u se M7 s Dot. I991)
be 22 a 1tgiSLdve funetlon exception to oondltiorts by making a near rule to be
M14 against ex paste commurdeatlon& applied tbtreafter to an or some part of
red, then is language in the Co W RW those sub*t to Its power.
lion, particularly the dicta that uS is the $ uburban Modieal Center, 697 p.2d at 661
racier of the administrative hearing (' uoting Prend o a Atlantic Coon Litre
Bag to the action of the administrative c4, 811 Ct.8. tio, 226, 29 8.Ct. 67, 69, 53
1' that determines the Wxl" an legiair j; ft 160 (19011r>_l
or quaYjadleial, Coral Reef at 662,
ch, when read out of oontnt, lends
port to Dade County's wntentlons. As
abstract proposition, the statement is
,;Wberas the character of An adu4nistra-
0 hearing will deteraune whether the
roeeeding is gvasi-jndicjal or executive, Ds
�. Wl a ShO field, 96 So.2d 914 916 ML
It [tos the nature of the set performed
mines its character as legisladve
iee. Suburban Jfediaal Center
Community H00A. 226 Kan.
97 PI 864, 681(1979). See alta
Ca a Polk County, 624 So.2d
(Fla. 2d DCA 1988) ( "The quasi. ature of a proceeding is not al-
mere procedural flaws.'?. jal inquiry inveetigstes, declares
torem liabilities ss they stead on
facts and under laws supposed
to exist. That is its purpose sod
Legislation, on the other hand,
the future and changes existing
0'I•X ne Can! Rwf. the mamty oplelon
aou•dtng phrase b hp �In
ar Alaratab x !nuns Cna"n" 12s
t9; 919, L 2 (1qe 3d DCA ISM Tbare
I t C "" argued to ibis sou l this o at.
4a of 'procedural due rune wavertt a
4tive �toceadtna into a gw�audkW pro
!ad ettlag Carl W. Thar proposition
afoul of as entire bodj of administrative
19 at act Is 14 essence 1g0alative In cNwac•
he fora of a notice and a haring does not
foam It Ink a judkisl act. if It would be a
dkd- ad wabtut notice and a hearing, It is
s I gwative so with notia and a bo rint.
hmdls R Adm* Coax Ust COQ, 211 U.S.
29 &art. 67, 531.M ISO (19"k ReAft" K
tcvr'tomr d liver Ca, 154 US. 362,14 gals
31 LP,d. 1014 (1994).
bt .
lartanoa Is a madit(atioe of the toning
Wft which may be panted when arch
rice wilt act be contrary to the publle Intan
sad whet, acing to conditions p ndl r to
and cot the result of tie aetloru of
4 a" enforcemeot of the"
�.rotw reads In, totpceswsy and undo
It In scatted that the enk mint and
ainanding of sorting ordinsnces Is a Iegisla-
eike !unction —by cue Iaw, Schauer a City
lftiami BtacA, 112 SoAd 688 ML1969);
aclkada a Musgrove, 619 Wd 0 (F1a.
3d DCA 198't) (en bane), reel drmieit 629
80.24 694 (FIL19S8), by statute, secdons
10.3161 and 166.041, Florida Statutes
(1089), and by ordinmoe, Dade County
Code ! 36 -SOS. Sit also A.Werson. Law of
Zeninp, j 1.18 (2d Ed.1918) (toning Is a
le"i lative act representing a legislative
judgment as to how land within the eity
should be uu'lited and where the liner of
debnareation between the several zones
should be drawnr 101 W.S. Zoning and
Land Platining } 1 (1968) (A=#). It is
also fairly settled in this state that the
grbating of varlsnces,s and special exeep-
doju or permits, an gwtd judkisl actions.!
Wdlgreevt Co. o. Polk County, 674 9o.2d
1119, 1120 (F9a. 2d DCA 1985); City of
Neko Smyrna Beach v Barton, 414 U2d
342 (Fla. 6th DCA) (Cowart, J., coacurtiing
hardship, 7 FW-2d, Adldliy, Zoning, grad
Load CoffrOW , 1 140 (1971).
The normal function or a variants is to Isar-
t a change In 'bund as restrictions w haisid
deoulty pathadont but not s cholp W
'fie etasaincadoaa'. cawr P. Miami Shaw
Mft,4 134 Se.2d 719 (M 3d DCA 1963).
74 admielstY4rtve body ads gttasl.judldaity
w�(t adjudicate private rights of a particular
skier a bearing wh1A comports with dm
process requirements, and malcee findings of
fa4a and conclusions of law on the diwuted
Juuea, Re:vicMag cowls scrutinise gwsl -judf-
cfd actin by noadcfarmdal judicial wodeeds.
Z(y 4th Wks 1974aa Carob, 399 sold
On review of legidative Oda, the court make
• 4efervotial inquiry. tor,, b the exercise of dins
authority "fairly debstsbW Sm&.
Rawhaa Bbffuo%"Pr Amin R ProwaM
ry 1112 So.2d 431 OU 4th 1rGtU. ran A.
Sl 1 9o.3d 999 (FIa.1997). Forther, there 4
no oupdresnew that mi-
Wke in Its eda ssivee capaci�ry, wupb� is s doo
fln&W of bet and omaiv i m of taw.
.q..:
i
1344 Fla. 681 SOUTHERN RKPORTER, 2d SERIES
al lally), nv, timied, 47A So.2d 780 (Fla.
1989). qty qt Apopka 9. Orange County.
299 So.2d 857 11 Ms. 4th DCA 19741; Sur
Ray Rotlret Ma o County qf Dade. 166
89.2d 827 (Fla. Ild DCA 1961).
A variance contemplates a noneooforas-
ing use in order to alleviate an undue bur-
den on the 'individual property corner
Caused by the I existing zoning. Rescuing
eontnnplstea change lo artiattng zoning
roles and regu adons within a didriot, sub-
division or 0 comparativoy large area
in a given gooernmental " 14oup v.
Bird, 58 So.2d 717 (Flay 1951p, Afay/towvr
Property, !na iv. My ofYbri Lauderdale,
187 So.2d US ML 2d WA 1962k 101A
C.J3. Zoning and Land Planning 1281
(1979).
Carol ?feel Cate Clariw
Coral Reef involved a legislative action.
The issue before the court was whether
then was a showing of substantial and
material changpa in a I979 application for is
rezoning so that a 1978 denial of as appli-
cation for the teams changes, on the same
parcel, by the Name applicant, would not be
precluded by res Jul principles, it
WAS not necesill to hold the 1978 hearing
quasi-judicial in character in order to Cord
that the 1978 resolution had preclusive at.
feet on the i97i coning hearing. There is a
requirement for procedural fairness in all
land use hearings, whether on an applica.
tion for a boundary change or it variance.
Adherence to that constitutional standard,
however, does not alter the distinet legal
4. "Lobbying Isl, defined as any personal solldta•
don of a axm ;fby of a hegishl bodydufft s
session thereoprivate Interview, or lever or
mossase. or mums sail i�ppltaneea aer
/neoetsarffyJ a aedso(e/y ro dleJrrdy,rrsnr. tv
favor or oppose. or to vote for Z i spinet, any
bill, resolution, irepom or chkimpendig, a to
be inlraduaed ..., by anypers�" .. who is
employed for a considerador Is a person or
eerparados ed to the pepsye a defeat
of such bill, solo or ""Or claim, for
the purpose o{ romrLas the pssaage ar defer
thereof." !daces L- Dkabetury I (row- 4th
ed. 196al boats The work of
lobbylap b
'weaken '°r a legislative " aaa P.
differences between quaa!-judSciwj
islative procsedhtgs In land twee'
We clarity Coral Rill, to
with ke facts, as hall onby tbatN
tion denying sm application tarn"
bas a preclusive eefeat On a aabt,e
application for the same rezoning, i
the appliawt an show substantial an
tenw changes in tdrettntstanass. 6
a City 4f rYianti, $75 So.24 Ile (�
rot 44 DCA 1991), relying on Co
mterpretatian of Coral Raj a hi
that there is be longer a distinctip
tween legislative actions and qu.eiji
actions of a county commission in has
awes goes far beyond the actual bold
the case, and is clearly erroneoo
note 1 tupm,
Reliance by the respondents on,,
Walton Loayue of Amarioa a Y
County, 448 So.Bd 1170 (Fla, Ad
1984), is similarly misplaced, In tilsl
we held that county commissiuneril
acting in their legislative eapecill
the right to publicly state their fie,
pending legislative matters. !rook 0
League does not address the issue;
parts communications or prehoarint
nouncements in quasi-judicial graces,
Lobbying
Jennings argaes here that the behut
the -scenes lobbying' of the eommiui o
by Schattmaa, for the purpose ut influx
ing the outcome of an appeal from a
judicial proceeding, violated she Cltfaetis
Bill of Rights s of the Dade County
ter, a well as the due process provisions e
cure, by mmuilslotL Imil or the ue d;
inducemeau, the pass,ng of bills, public a well
as private; which involve pin to the promowL
/d
s. section a(s), Cauxni Bin of Righu, Dade
Comity Cha—, provides in perftaesu past:
At any zoning or other hearing in wtl re
view is exclusively by certbrarl, a prrty or his
t WMd Shull be entided to prevent his assn er
defense by Aral or doeumenury evidence. M
submit rel l evidence, and to conduct such
crow-examination as cosy lot required he e
full and tree disclosure of the fads, Vie
decision of any owh al boA depu4
ment or atAbority mum be based won the
facts in the rem
M0lW8 Y. $TAIX- ttla. 1345 -1361
Clrarra/" ia'Ii
04M 2 aa!41"1)
the United States and Florida Conatitu-
(1 ). - .ttdaereace to protedurea which ta-
dotu. We agree, obviously, that the lobby-
sun fsirpeia Nis essential not only W the
log actions were unlawful. Dade County
kcal vaF*y of the administrative regale-
sod Schstsman respond that Jennings is
don, blic abo to the maintenance of public
muted to no relief because he has not
eo4fldeneq,in the value and soundness of
'speged and demonstrated a resulting preju•
this hnpprtint governmental process." )a
dice, In the opinion on rehearing this court
697 P.2d'a. , (citing 2 AmJur.2d Admix-
now cl early rejects that argument.
is(rutivq,f� w 1361). The constitutional
Mudlee is to be presumed, without fur -
oo(npuls*- which led to the establishment
'Utz proof, from the mere tact that say
of ' rings • r_egardiag the disqualification of
ty commissioner granted a private au-
judges 2}ply with equal force W every hi.
!�etltx to a lobbyist. whose purpose was to
buhal exercising judicial or quasi- Judicial
t the commissioner to vote a certain
functions. 1 Am.Jur.2d Adruinistm&#
ay in an administrative proceeding for
Lao 1 64, at 860 (1962); City of Tallahar
ns not necessarily addressed solely W
see u Florida Fxb. Sere. Comm's, 441
merits of the petition, and that the
50.2d 620 Ms.1988) (standard used to dice-
Winner did vote accordingly. Start-
qu>ilifying agency heed is same standard
with the legal definition of lobbying,
use d in disqualifying judge). See also Ra-
aots 4 supra, and applying common
er&v. fWedman, 438 F.Supp. 428 (E.D.Tex.
` ledge as to how the prudes works,
1970 (role as to disqualification of judges
Is a compelling reason for placing the
is same for adm(hietrative agencies as it is
of proving no prejudice on the party
for courts) (Citing L Davis, Administra-
ble for the ex parts eommunica-
five Late; 12.04, at 250 (1972)). Ritter %
Boord at Camtn Ss of Adara County, 96
gh an ex parts communication
Wash-2d 508, 68'1 P.2d 940 (1981) (samej,
a qussrjudkial tribunal makes its fl-
voidable, rather than void per se,
u mption which it drawn From the
tit the improper conduct, is applied W
a strong social policy and is sufs
t evidence to convince the fut- finder
the innocent party has been preju-
Robert L, MORRIS, Appellant.
the rebuttahltr presumption imposes
the parq against whom it operates
v
- a of proof concerning the nonex•
STATE of l7orida, Appellee.
of the presumed facts f 90.304,
No. ft-OW.
t (1991;; Department of Agricul-
B Consumer SO% s. Bonartno, 668
District Court of Appeal of Florida,
24, 3142 (FIa.1990}, Black's Law
Second District
;849 (4th ad. 19a6).
Oct. 2, 1991.
parts lobbying of an administrative
�.sc4ng quasi- judicially denies the per
Rehearing Denied Dec. 8, 1991.
, open, and impartial hearing.
Appeal purivant to Fls.R.App.P. 9.1400
t$at dfediasl Center 9 Olathe Com-
from Ithe Circuit Court for Pinellas County;
ttosp., 226 Ken. 820, 597 P.2d 664
Richard A. Lucs, Judge.
x Fed&d (fir Rebuima Authority,
y7d S47 (MCX1r.1992). relied on by Judge
wmsunicadon on public record subeerHoe
(D) that where the eommwgasdon wo
mpPallo this vices. Tbce the court was
nsly glade by a pvty In vieWon of fhb
tecdoo SS7(dxl) of the Administm
wb the party may be tequhvd'to about
AcL soya" es pane comma.
(the,
rn ruby No claim or Interest In the
Ina nos be dlawmad, denied, d�d
mamba of th ha Involved to
Pmcas who rmdvw say prohibited
shag platy the esateau of the
at v4W&do&- 5 U .CJL 9 S57(d)(q(CI
(D),