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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),