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<br />t,ime when- 'the economy wa.ssagglng. 'I[ a'c6on was dela'yed u,ntil a decision was rendered
<br />on an appeal, new Council members would be in office and possibly one of those eligible
<br />,to make a decision would no ,longer be involved., He asked the Council to act upon the
<br />rezoning request when it was knoMlthat the five Council members named would be present .a
<br />to vote. _
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<br />Assistant Manager said staff recommendation to proceed with filing'of an appeal was ;
<br />,with no desire other than to defend present policy because it appeared to be a pro-
<br />,cedural matter rather than a question of the merits of zoning or lack of zoning. He I
<br />'shared the concern of the property owner because of the length of time since there-
<br />zoning request had been filed, but he felt implications without an appeal would be !
<br />:far-reaching as they would concern processes with which the Council was involved ~n
<br />:its quasi-judicial function when considering zone changes. i
<br />
<br />;Stan Long, assistant city attorney, reminded the Council that the issue came to the !
<br />Council on an appeal from a Planning Commission denial of the rezoning and that the :
<br />Council ultimately upheld that denial and declined to rezone the property. He also I
<br />'pointed out that some delay was caused by the applicant himself. Also, that the Court i
<br />,had not accepted the suggestion that at one point the rezoning had been granted. :
<br />,Mr. Long said the Council could take action on the rezoning if it so desired, but if
<br />'it did, that action would render the appeal of the trial court's opinion moot and the '
<br />icity would then be bound and obligated by Judge Spencer's decision. The central
<br />!question, Mr. Long said, from staff's point of view was not the merits of the rezoning
<br />request itself, rather it was the process by which the issue would be decided. He
<br />ireviewed city ordinance requirements with respect to Fasano pr~cedures - that any ~
<br />Council member missing a meeting would be required to review the record of that meet- ..
<br />ing to be eligible to vote on the issue under consideration. The Court found that a I
<br />review of the written record (minutes) was not sufficient and remanded the matter back ,
<br />to the Council for further proceedings (Council meetings were not tape recorded at the j
<br />,time of hearings on this rezoning request). Mr. Long cited ordinance provisions, based j
<br />;on legal and constitutional provisions, for Council conduct under Fasano regulations,
<br />iand said the position was taken that true and accurate summary of testimony (written
<br />!minutes) was sufficient evidence. However, the Court' disagreed and Mr. Long said he "
<br />'would like to raise that question in the appeal. Anqther point of more concern, he
<br />:said, was failure of the applicant to point out any defect in Council procedure at the ;
<br />:time of the hearings on the rezoning, raising questions with regard to council members
<br />rparticipation in a decision when there was no chance to make a correction. He felt that
<br />:was "trial by ambush" and was a fairly. significant point to be brought out.
<br />
<br />):ss'TstanT-j,janiiger -noted-dis;Us;loiJ 'aE.'some '-ie;';gtllwl;;;;' th~ 'oi-di~'ai1ce was' developed ~ ..
<br />setting out procedures for Council members' participation or voting on zoning issues
<br />land said the staff position was that the Court in this matter was attacking those' pro-
<br />icedures. He strongly recommended going ahead with the appeal but not to attempt to do
<br />iboth - file the appeal and act on the rezoning matter too.
<br />I
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<br />'Councilwoman Beal asked if she and Councilman Keller would be able to participate in \ ~
<br />,a decision if action was taken on the rezoning now in view of having missed one of the tIP
<br />,:1 meetings. Mr. Long said his original opinion was that a Council member who missed a
<br />\: meeting could participate in a decision if minutes of the missed meeting had been re-
<br />i viewed. The appLicantd'isagreedand the Court upheld the applicant's position, and if i
<br />that opinion was correct it would appear they could not particpate now. In answer to \
<br />further questioning, he explained that disqualified Council members would still consti- '
<br />tU.te a quorum. However, there was the fundamental question of whether the CouncilJ-veuJd
<br />vote as membersor as a whole. Sorting out the p'rocess with individuals who didnc:t ~~
<br />-~""'-",,--'""......,...-- . .(
<br />,participate in the rezoning decisiopif~t~q~~question was'not appealed, he said, would I
<br />, take some-nIne; There_ could be addi tional full scale hearings, since there are no
<br />-verbatim records (Jf~the testimony and the Judge's opinion was that summary of the
<br />,testimony contained in minutes was not sufficient. Mr. Moulton .said the Court did not....... ,~.
<br />'rule on the issue of whether Mrs. Beal and Mr. Keller could vote. until a more defini-
<br />~tive ruling on that question was made, he th9u~nt ~t important.that a decision on the
<br />; rezoning be made by those people who heard the evidence. He continued that the Judge's
<br />; decision in this case was binding on this case only and in no other matters that would
<br />'come before the counciJ,--j-n-ft-he- future and that the ruling concerned.. wording in the ci ty' s
<br />'ordinance onLY. There was no ruling'on any constitutional question. He again asked
<br />'tha't'the five members (Williams, Murray, Wood~ Heal, and Keller) vote on the-is~ue at
<br />~this time in view of the November 5, 1973 Council decision to effect the rezoning~""'~______
<br />
<br />ICouncil President Williams said it appeared that the question of Council authorization i '_
<br />rto go ahead with an appeal would be entirely separate from the question of whether the
<br />property should be rezoned, so that it would appear the entire Council could vote on !
<br />~the question of appealing the Court's decision. Mr. Moulton disagreed with that position. !
<br />, ,
<br />He thought the entire Council did not have the right to obstruct the judicial function i
<br />of those eligible to vote on the question of rezoning. The legislative body, he said, ,
<br />'could not obstruct the judicial pody from carrying out that function.
<br />
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<br />3q9 11/25/74 - 2
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