Posted by: Patricia Salkin | March 17, 2012

Florida Appeals Court Holds That Board Member is Entitled to Challenge Action Taken on Matter After She Had Voted and Left the Meeting

Ms. Brodeur, an elected member of the Miami-Dade County Community Zoning and Appeals Board (hereinafter “CZAB”) appeals a decision of the Miami-Dade County Circuit Court dismissing her complaint.  

Miami-Dade County and a local developer (hereinafter “appellees”) filed an application for approval of a site plan to double the size of an area apartment building.  Ms. Brodeur, along with five other voting members of the seven-member CZAB were present at the meeting during which this application was discussed.  There were also 200 members of the public present to object to the application.  After presentation of witnesses and subsequent discussion, the CZAB voted.  Three members voted to approve the application and three voted against the application.  Ms. Brodeur was in the latter group.  It was announced that the next meeting would be July 21.  The voting members then discussed the availability of the members on that date.  At that point, the record indicates that Ms. Brodeur left the meeting due to illness. 

After Ms. Brodeur’s departure, the chairperson facilitated additional discussion regarding an amendment to the application at issue, and inquired as to whether a vote could be taken on the amended application.  A CZAB member asked if the vote could go forward in Ms. Brodeur’s absence.  A county attorney stated that the CZAB had two permissible options since they had not chosen a specific date for a deferred meeting on the application: (1) deem the earlier vote to be a deferral to the next CZAB meeting on July 21, or (2) go forward with another vote on the application as amended.  More discussion ensued, and a motion for approval of the amended application passed by a vote of three to two.  

Ms. Brodeur filed a complaint alleging these actions violated section 33-308 of the Miami-Dade County Code, which required a matter to be carried over to the next “regularly scheduled meeting” if a “tie vote occurs.”  Appellees’ contend that a public official lacks standing to challenge procedures related to her own official acts.  Ms. Brodeur, on the other hand, maintains that when an official is prevented from doing her duties by the acts of others, there is an exception to the rule underlying appellees’ contention.  The Court noted that Ms. Brodeur is entitled to seek review of decisions that “nullify her duly-exercised vote” and therefore examined whether the complaint sufficiently alleged an interest in “vindicating ‘the effectiveness of her vote.’”    

The Court found that Ms. Brodeur had alleged a sufficient interest, based on the plain language of the statute and the discussions occurring before Ms. Brodeur’s departure.  It found that the language was “seemingly self-executing” and was not overridden by the general rule for standing in these types of actions.  Moreover, the CZAB discussed section 33-308 before Ms. Brodeur left, and there was no evidence that her reliance on the ordinance was unjustified or in bad faith.  As a result, the Court reversed the Circuit Court’s dismissal of Ms. Brodeur’s complaint and remanded for further proceedings. 

Brodeur v. Miami-Dade County, 2012 WL 10824 (Fla. Dist. Ct. App., 1/4/2012)


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