--- So.2d ----, 2007 WL 2847951 (Fla.App. 4 Dist.)
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT
LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
District Court of Appeal of Florida,
Fourth District.
Carolyn J. WRIGHT, Michael Bornstein, Anita Mitchell, Gladys D. Van Otteren
and Patricia M. High, Appellants,
v.
Lois FRANKEL, as mayor of City of West Palm Beach, a municipality of the State
of Florida; Isaac Robinson, Jr.; Geraldine Muoio; James Exline; Kimberly Mitchell;
and William Moss, as city commissioners of the City of West Palm Beach, a municipality
of the State of Florida, and City of West Palm Beach, a municipality of the
State of Florida, Appellees.
Nos. 4D06-3386, 4D06-3697.
Oct. 3, 2007.
Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Amy L. Smith, Judge; L.T. Case No. 502006CA006094XXXXMB.
Thomas R. Julin and Patricia Acosta of Hunton & Williams LLP, Miami, for
appellants.
Jane Kreusler-Walsh and Rebecca Mercier Vargas of Kreusler-Walsh, Compiani
& Vargas, P.A., Brian B. Joslyn and Richard A. Jarolem of Casey, Ciklin,
Lubitz, Martens, McBane & O'Connell, and Claudia M. McKenna, City Attorney,
West Palm Beach, for appellees.
ON MOTION FOR REHEARING EN BANC
TAYLOR, J.
*1 We withdraw our previously issued opinion and substitute the following in
its place.
Appellants are citizens and registered voters of the City of West Palm Beach
in Florida. Because appellants disagreed with the City's decision to relocate
the city hall and the city library, they formed a petition committee, which
gathered signatures of more than 3,000 electors on initiative petitions for
ordinances requiring voter approval for the relocation. When the City refused
to place their proposed initiative on the ballot, the Committee sought mandamus
relief in circuit court to compel the City to place the initiative on the ballot.
The circuit court determined that the doctrine of laches barred the mandamus
action. Accordingly, the court quashed the alternative writ of mandamus it had
entered earlier and denied the Committee's motion for summary judgment. Because
we conclude that the trial court erred in ruling that laches barred the mandamus
action, we reverse.
Background
Beginning in July 2002, the West Palm Beach City Commission passed a series
of resolutions for its plans to develop a new City Center. Part of the plan
involved relocation of the city hall and the city library to the Clematis Street/Banyan
Boulevard corridor. On September 7, 2002, the City passed resolutions determining
that the county property on Banyan Boulevard was a suitable location for a new
city hall and authorizing an expenditure of $1,138,000 to acquire the land.
FN1. The resolution indicated that the City had held a public forum to receive
input regarding relocation of the library, and the majority opinion at that
forum supported the relocation.
From November 2002 until November 2003, the City passed more resolutions, authorizing
a request for proposals from developers and permitting the West Palm Beach Community
Redevelopment Agency (CRA) to acquire other properties for the development.
On November 18 and 24, 2003, the City adopted resolutions authorizing the relocation
of the library and city hall from their present sites to the D & D Centre
site. Additional resolutions authorized expenditures for City Center development
in the amounts of $16,115,400, $17,670,000, $19,490,000, $155,000, and $1,635,000.
On February 3, 2004, the City passed a resolution authorizing a request for
proposals to develop, design, and build a new city hall and library on property
to become known as the City Center. On October 12, 2004, the CRA passed a resolution
for two expenditures for the project, each in the amount of $585,000. The CRA
also passed a resolution authorizing its chair to enter into an agreement with
Republic Properties Corporation (“Republic”) for designing and developing
City Center. On January 3, 2005, the City authorized $2,900,000 in expenditures
for the city commons and waterfront construction fund. On March 28, 2005, the
CRA passed a resolution amending City Center construction and operation funds,
authorizing expenditures in the amounts of $1,188,268 and $650,000. On November
7, 2005, the CRA approved the City Center strategic finance plan and the implementation
of said plan.
On March 13, 2006, the CRA passed a resolution authorizing expenditures of
$405,000. Also on this date, the CRA passed a resolution authorizing its chairman
to contract with Republic to provide for the demolition of the existing site
structures. Later, after criminal charges were brought against a city commissioner
for his role in securing the contract with Republic, the CRA passed a resolution
on June 26, 2006, substituting Catalfumo Management Investments, Inc., as the
new developer for the City Center project. Additional resolutions appear in
the record relating to the completion of City Center.
*2 On May 16, 2006, the Committee filed two petitions for initiative ordinances.
One sought an ordinance regarding relocation of city hall, which provided:
AN ORDINANCE OF THE CITY OF WEST PALM BEACH REQUIRING A REFERENDUM BY THE VOTERS
OF THE CITY OF WEST PALM BEACH BEFORE CITY HALL CAN BE RELOCATED TO ANOTHER
SITE, PROVIDING FOR REPEAL OF LAWS IN CONFLICT, PROVIDING FOR SEVERABILITY AND
PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City Hall of the City of West Palm Beach and the property upon
which it is situated is a valuable asset and resource of the City;
WHEREAS, any decision to relocate the City Hall is a decision that will greatly
impact the voters and residents of the City of West Palm Beach;
WHEREAS, the voters of the City of West Palm Beach should decide where their
city government should operate and conduct business;
WHEREAS, pursuant to the Florida Constitution, all political power is inherent
in the people and the referendum is the essence of the reserved power of the
voters of the City of West Palm Beach;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF WEST PALM BEACH, FLORIDA:
Section 1. The recitals contained in the Preamble to this Ordinance are adopted
by reference and incorporated as if fully set forth in this section.
Section 2. Referendum Vote: The City Hall of the City of West Palm Beach shall
not be relocated to another site unless the relocation is first approved upon
favorable vote of a majority of the electors of the City of West Palm Beach
voting thereon in a referendum election.
Section 3. Repeal of Laws and Conflict: All local laws and Ordinances of the
City of West Palm Beach in conflict with any provisions of this Ordinance are
hereby repealed.
Section 4. Severability: If any section, paragraph, sentence, clause, phrase,
or word of this Ordinance is for any reason held by a Court to be unconstitutional,
inoperative or void, such holding shall not affect the remainder of this Ordinance.
Section 5. Effective Date: The provisions of this Ordinance shall become effective
either upon approval by the City Commission in accordance with Section 6.06
of the City Charter, or by a favorable vote by a majority of the electors and
certification of the election returns pursuant to Section 6.10 of the City Charter.
The Committee also filed a petition for initiative ordinance on the relocation
of the city library with almost identical provisions.
FN2. The petition for initiative ordinance on the relocation of the city library
included language that the city library and the property upon which it is situated
is a valuable “and historic” asset and resource of the City and
excluded the “whereas” clause stating that “the voters of
the City of West Palm Beach should decide where their city government should
operate and conduct business.” The two petitions were identical in all
other respects.
On May 22, 2006, the city clerk certified to the City Commission that sufficient
signatures were received for the initiative petitions. On June 19, 2006, instead
of adopting the ordinances or scheduling a referendum election, the City Commission
passed a resolution authorizing the filing of an action in circuit court for
declaratory relief regarding the initiative petitions. The resolution stated
that the city attorney had “conducted such review and has determined that
the Initiative Petitions do not contain ballot questions that may be properly
placed on a ballot for consideration by the voters.”
Alternative Writ of Mandamus Proceedings
*3 On June 20, 2006, the Committee filed a complaint in circuit court for issuance
of a writ of mandamus to require the City to set an election on the two initiatives.
The complaint was based on the City's failure to either pass the ordinances
or submit the ordinances to the electors within the window provided by the charter.
On June 20, 2006, the Committee also filed a motion to issue an alternative
writ of mandamus. The memorandum in support of this motion contended that the
ordinances concerned legislative, rather than administrative matters, and, thus,
were appropriate matters for an ordinance, that the petitions were not submitted
in an untimely manner, and that the petitions would not impair the City's contractual
obligations. After hearing argument, the trial court issued the alternative
writ on June 29, 2006, and directed the City to hold the election or to show
cause why it should not be required to hold the election. The Committee also
moved for final summary judgment. In response, the City filed an answer and
affirmative defenses and a counterclaim for declaratory relief. It also moved
to quash the alternative writ.
At the final hearing held on August 18, 2006, the Committee offered into evidence
the relevant City Charter provisions, the petitions and certifications of the
signatures as valid and verified, and the resolution of the City Commission
refusing either to adopt the ordinances or to submit them to the electorate.
The City presented affidavits essentially describing the steps that had already
been taken to carry out the relocation of the city hall and library.
After the hearing, the trial court entered an amended order quashing the alternative
writ of mandamus and denying the Committee's motion for summary judgment. The
court determined that the writ was barred by the doctrine of laches. It noted
that the Committee had delayed challenging the City's decision to relocate city
hall and the library for well over two years, and that the City, having taken
substantial steps toward relocating the buildings, would be severely prejudiced
by the delay that would be caused by granting the requested relief. The Committee
appealed.
Legal Analysis
Article VI of the City's Charter confers upon the electors of the City the
power of initiative. Section 6.01 of the City Charter provides:
Sec. 6.01. Power of initiative.
The electors may propose any ordinance, except an ordinance appropriating money
or authorizing the levy of taxes, and may adopt or reject it at the polls. This
power shall be known as the initiative. Any initiated ordinance may be submitted
to the City Commission by petition signed by at least five (5) percent of the
City electors as shown by the current voter registration lists.
Section 6.03 of the City Charter lists the technical requirements that all
petition papers circulated for the purpose of initiative must meet. Section
6.04 sets forth the procedure that must be followed for the filing, examination
and certification of all initiated petitions. Section 6.07 sets forth the duties
and responsibilities of the Commission after the City Clerk has examined and
certified an initiative petition. It provides:
*4 Sec. 6.07. Consideration by City Commission.
The City Commission shall proceed forthwith to consider any certified initiative
or referendum petition received from the City Clerk. In considering an ordinance
proposed by initiative petition, the City Commission shall follow the same procedural
requirements for passage that are prescribed hereby for ordinances generally,
including public hearing thereon, and the City Commission shall take final action
thereon not later than thirty (30) days after the date of submission thereof
to it....
After the Commission has considered the proposed initiative as required by
section 6.07, the Commission is then required to either adopt the initiated
ordinance as its own or submit the ordinance to the electors, as required by
section 6.08 below:
Sec. 6.08. Submission to electors.
If the City Commission fails to pass an ordinance proposed by initiative petition
or passes it in a form different from that set forth in the petition ... the
proposed or referred ordinance shall be submitted to the electors in its original
form not less than thirty (30) days nor more than ninety (90) days after the
final vote thereon by the City Commission. The City Commission may provide for
a special election, and it shall so provide if no regular election is to be
held within this period.
The City argues that the trial court's decision to dismiss the petition for
writ of mandamus was within the court's sound discretion and that an appellate
court should not disturb the trial court's ruling in mandamus proceedings unless
clear error appears. It further argues that “determination of whether
a mandamus claim is barred by laches is for the trial court,” citing Metro.
Dade County Plumbing Contractors' Examining Bd. v. State ex rel. Bishop, 216
So.2d 76, 77 (Fla. 3d DCA 1968).
“ ‘Mandamus is an appropriate remedy to compel the performance
of a ministerial act that an agency has a clear legal duty to perform. ‘A
duty or act is defined as ministerial where there is no room for the exercise
of discretion, and the performance being required is directed by law.”
“ Shulmister v. City of Pompano Beach, 798 So.2d 799, 802 (Fla. 4th DCA
2001) (quoting Shea v. Cochran, 680 So.2d 628, 629 (Fla. 4th DCA 1996) (quoting
Town of Manalapan v. Rechler, 674 So.2d 789, 790 (Fla. 4th DCA 1996)). In Shulmister,
an initiative committee circulated an initiative petition for an amendment to
the Pompano Beach City Charter. It then took the necessary steps to place the
proposal on the ballot. The City Commission tried to prevent the proposal from
being placed on the ballot, contending that the proposal contained a defective
ballot summary. The trial court denied the committee chairman's petition for
a writ of mandamus and for injunctive relief to prohibit removal of the proposal
from the ballot. On appeal, we reversed the denial of the writ of mandamus because
the law plainly required the city to prepare a proper ballot summary and place
the committee's proposed amendment on the ballot.
*5 In this case, it is undisputed that petitioners followed the procedures
authorized by the city charter for requiring the City Commission to either adopt
their proposed ordinances or submit them to the electorate in a referendum election.
Yet, the trial court denied the petition based on the equitable doctrine of
laches. The court reasoned that the Committee had unreasonably delayed challenging
the City's plans to relocate the city hall and library and that the proposed
ordinances, even if approved, could not be applied to block the planned relocation
after years of City actions to implement the projects. However, neither delay
in seeking a referendum nor the possible consequences of an election on the
referendum can justify the court's failure to enforce the referendum process.
In Brooks v. Watchtower Bible & Tract Society of Florida, Inc., 706 So.2d
85, 90 (Fla. 4th DCA 1998), we held that a referendum on an ordinance proposed
by initiative cannot be prevented “unless it is demonstrated that the
ordinance is unconstitutional in its entirety.” There, a group of citizens
used the initiative process to seek a referendum to repeal an ordinance authorizing
a contract for the sale of municipal property. Pursuant to the provisions of
the city charter, the city commission placed the proposed referendum on the
ballot. The prospective purchaser of the property sought to enjoin an election
on the referendum, arguing that the repeal would be futile because it could
sue the city for specific performance of the contract to sell the property.
The trial court granted the injunction. We reversed, holding that the possibility
that the referendum would be futile did not justify the trial court's interference
with the right of the people to vote on the referendum. Discussing the electorate's
right to a referendum, we stated the following:
Under the Florida Constitution, the people elect the Legislature, and it is
the Legislature which enacts the general laws under which the citizens of Florida
live. The general laws of Florida encompass the creation of municipalities.
See Ch. 165, Fla. Stat. (1997). A municipal corporation derives not only its
existence but its power from the Legislature. See Article VIII, § 2(a),
Fla. Const.; Town of Palm Beach v. City of West Palm Beach, 55 So.2d 566, 572
(Fla.1951). The Legislature adopted the Charter of West Palm by special law
in 1965. See Chs. 65-2381, 65-2382, at 4153-4267, Laws of Fla. Pursuant to the
home rule powers granted in chapter 166, Florida Statutes (1997), the City Charter
was amended by a referendum vote of the people to its present form in 1988.
See Charter, Part I editor's note. The Charter now provides that “[a]ll
powers of the City shall be vested in the City Commission except those powers
specifically given to the Mayor ... and except those powers specifically reserved
in this Charter to the electors of the City.” See Charter § 2.03
(emphasis added). One of the powers specifically reserved to the electors is
the power of initiative and referendum. See Charter § 6.02.
*6 Id. at 87.
If, as we held in Brooks, a suggestion of futility is not a proper basis for
preventing citizens from exercising their charter right of referendum to enact
ordinances, then neither is a claim of unreasonable delay. The people reserved
to themselves the power of referendum. Their legal right to govern themselves
should not be abridged. Where, as here, the Committee has demonstrated a clear
legal right to mandamus relief, the trial court lacks discretion to deny such
relief based on laches.
Although the City cites a few cases suggesting that mandamus actions are subject
to the laches defense, none of these cases concern the power of the people to
enact ordinances through referendum. In State ex rel. Haft v. Adams, 238 So.2d
843 (Fla.1970), the Florida Supreme Court applied the doctrine of laches to
prevent delay and interference with an election proceeding. There, a judicial
candidate sought to remove the names of other candidates from the election ballot
on the ground that the candidates had not paid a sufficient qualifying fee.
Because the petitioner's claim was tardy and the ballots were already printed,
the court ordered the election to proceed as scheduled. In Ladas v. Titus, 53
So.2d 323 (Fla.1951), a police officer brought a mandamus action to compel his
reinstatement to the police force when he was dismissed before he completed
his probationary period. Another mandamus case cited by the City, Board of Public
Instruction of Hendry County v. State ex rel. Hilliard, 188 So.2d 337 (Fla.
2d DCA 1966), concerned a change in millage rates.
In those cases cited by the City which involved a referendum on a charter provision
or the passage of a constitutional amendment, the courts did not apply the doctrine
of laches. In State ex rel. Clendinen v. Dekle, 173 So.2d 452 (Fla.1965), the
supreme court determined that the defense of laches did not apply in a mandamus
action to compel the state canvassing board to recertify statewide results on
a proposed constitutional amendment. In Scott v. City of Orlando, 173 So.2d
501 (Fla. 2d DCA 1965), which involved a suit challenging the validity of an
ordinance to locate a theater and convention hall in the downtown area of Orlando,
the Second District Court of Appeal held that the location of the buildings
was a proper subject for an initiative petition requiring an election despite
the fact that the city had already spent money on architects' fees and other
items in anticipation of building the facility at another location. The court
upheld the validity of the ordinance calling for a referendum, stating that
“[i]f the city officials of Orlando had the right to change the location
of the facility involved in this case, we see no reason why the people of the
City of Orlando, voting in an initiative election upon a city ordinance changing
the location of this permanent facility, should not have the same right.”
Id. at 508.
In Wilson v. Dade County, 369 So.2d 1002 (Fla. 3d DCA 1979), the Third District
held that it was improper to enjoin the electorate from passing upon a proposed
ordinance to limit the county millage rate in a referendum election where the
alleged invalidity of the proposed ordinance did not clearly appear on its face
and there was no constitutional challenge to the proposed ordinance. The court
reversed the injunction because “the trial court was not authorized by
the applicable law prospectively to interfere with the electoral process by
precluding a decision of the voters on the proposed ordinance.” Id. at
1003.
*7 The common thread running through cases concerning the referendum process
is the principle that citizens are free to express their views on municipal
matters through the power of referendum and that courts should not interfere
with the exercise of their referendum rights except in very narrow circumstances.
See West Palm Beach Ass'n of Firefighters, Local Union 727 v. Bd. of City Comm'rs
of City of West Palm Beach, 448 So.2d 1212, 1214 (Fla. 4th DCA 1984) (holding
that where the proposed initiative ordinance governing resolution of contract
issues between the city and its firefighter employees was unconstitutional in
its entirety and on its face, the trial court properly denied petition for writ
of mandamus; however, where challenge to the initiative petition is based on
grounds that it is unconstitutional in part or invalid on non-constitutional
grounds, such issue is not cognizable by the court prior to the proposed election);
Gaines v. City of Orlando, 450 So.2d 1174, 1177 (Fla. 5th DCA 1984) (reversing
an injunction prohibiting the city commission from placing an initiative ordinance
on the ballot on the basis of its claim that the ordinance would violate statutes);
Wilson, 369 So.2d at 1003; Rivergate Rest. Corp. v.. Metro. Dade County, 369
So.2d 679 (Fla. 3d DCA 1979) (holding that a referendum election to restrict
smoking in public places would be enjoined only if the proposed law was invalid
in its entirety).
Here, as in Brooks, the proposed ordinances have not been shown to be defective
or unconstitutional in any respect. The City's opposition to submitting the
ordinances to the electors is based primarily on the passage of time and expenditure
of funds on relocation efforts. However, those city expenditures were paid for
by the taxpayers-the very same citizens who would weigh these factors and vote
on any future relocation and cost issues. The city charter entitles them to
vote on these issues, regardless of their failure to propose these ordinances
at some earlier point. Moreover, as the Committee points out, the City passed
resolutions, instead of ordinances, to effectuate their plans for relocation.
The thirty-day limitation for repealing ordinances, under section 6 .02 of the
City Charter, thus does not apply. Further, the charter does not prohibit new
initiative ordinances that negate the effect of mere resolutions.
Although Brooks arose from an action to enjoin the City from placing an ordinance
before the electors for referendum, rather than an action to compel the City
to place an ordinance on the ballot, the governing principle is the same: the
right of the voters to exercise their power of initiative and referendum should
be honored “unless it is demonstrated that the ordinance is unconstitutional
in its entirety.” 706 So.2d at 90. An ordinance requiring a vote before
the relocation of city buildings is a proper subject of a referendum under the
Florida Constitution, state statutes, and the City's Charter. Because the City
failed to comply with its legal duty to either adopt the Committee's proposed
ordinances or submit them to the electorate in a referendum election, the trial
court erred in quashing the alternative writ of mandamus and denying the Committee's
motion for summary judgment.
*8 Reversed and remanded.
WARNER, POLEN, FARMER, STEVENSON and GROSS, JJ., concur.
SHAHOOD, C.J., dissents with opinion, in which MAY, J., concurs.
STONE, J., dissents with opinion, in which MAY, J., concurs.
GUNTHER, KLEIN and HAZOURI, JJ., recused.
SHAHOOD, C.J., dissenting.
*8 I dissent. I would deny the motion for rehearing en banc.
*8 The facts of this case as stated in the original majority opinion were that
the City began passing resolutions as early as July of 2002 relating to the
development of the City Center area. Thereafter, more resolutions were passed
up to November 2003. It was not until May of 2006, almost four years after the
passage of the first resolution, that the Committee filed a petition for initiative
ordinance on the relocation of City Hall.
*8 As we held:
*8 Laches is defined as an “[u]nreasonable delay in pursuing a right
or claim-almost always an equitable one-in a way that prejudices the party against
whom relief is sought.” Black's Law Dictionary 891 (8th ed.2004). Generally,
whether a lawful claim is barred by laches is a matter of trial court discretion.
Metro Dade County Plumbing Contractors' Examining Bd. v. State ex rel. Bishop,
216 So.2d 76, 77 (Fla. 3d DCA 1968).
*8 Wright v. Frankel, 32 Fla. L. Weekly D97, D98 (Fla. 4th DCA Dec. 27, 2006).
*8 Like the majority opinion on the motion for rehearing en banc, I agree that:
*8 If ... a suggestion of futility is not a proper basis for preventing citizens
from exercising their charter right of referendum to enact ordinances, then
neither is a claim of unreasonable delay. The people reserved to themselves
the power of referendum. Their legal right to govern themselves should not be
abridged.
*8 I too feel that the right of the citizenry to govern themselves through
the referendum process is an extremely important right, but not a limitless
right. In this case the committee, by waiting over three years to file its petition
for initiative ordinance, went well beyond any permissible time constraints
for such filing.
*8 I also agree with the decisions cited by the new majority opinion that:
*8 The common thread running through cases concerning the referendum process
is the principle that citizens are free to express their views on municipal
matters through the power of referendum and that courts should not interfere
with the exercise of their referendum rights except in very narrow circumstances.
See West Palm Beach Ass'n of Firefighters, Local Union 727 v. Bd. of City Comm'rs
of City of West Palm Beach, 448 So.2d 1212, 1214 (Fla. 4th DCA 1984) [emphasis
added].
*8 Again, this is not a limitless right, but rather is a case involving “very
narrow circumstances.”
*8 I do not agree that where the Committee has demonstrated a right to mandamus,
the court lacks discretion to deny such relief based on laches. I therefore
conclude, as we held in the original majority opinion, the trial court did not
abuse its discretion in determining that the doctrine of laches applied.
MAY, J., concurs.
STONE, J., dissenting.
*9 I am not unmindful of the compelling basis for our recognizing the right
to exercise the initiative process granted by the charter. However, in my judgment,
the trial court had the discretion to conclude that the extraordinary delay
in bringing this initiative subjects it to application of the equitable doctrine
of laches. That doctrine is available in mandamus proceedings. See State ex
rel. Haft v. Adams, 238 So.2d 843, 844 (Fla.1970); Ladas v. Titus, 53 So.2d
323 (Fla.1951); Brown v. Firestone, 382 So.2d 654, 671 (Fla.1980); Bd. of Pub.
Instruction of Hendry County v. State ex rel. Hilliard, 188 So.2d 337 (Fla.
2d DCA 1966), aff'd on other grounds, 191 So.2d 561 (Fla.1966).
*9 In this case, almost three years passed, the project was well underway,
and millions of dollars had been spent and committed by the time the initiative
was presented to City. Although the proposed ordinances are silent as to whether
they apply to the move of the city hall and library in progress, they appear,
to me, to be directed at the current relocation.
*9 The trial court could properly recognize that Committee had not acted for
approximately three years while City continued to pass resolution after resolution
providing for and funding the current relocation. Although the parties argue
about the extent of planning, expenditures, and completeness of the project
as it relates to the prejudice element, I would conclude that there has been
enough work done on the project to support the trial court's conclusion of prejudice
to City.
*9 The trial court could also consider, and find instructive, section 6.02
in determining what constitutes an unreasonable delay. That section provides
that a petition seeking to repeal an ordinance, or submit that ordinance to
a vote of the electors, must be filed within thirty days of enactment of the
ordinance. Although City, properly, passed this project through resolutions
rather than by ordinance, the time limitation provision in the charter evinces
an intent that objections be lodged to the actions of City within a brief period
of time. Though I am mindful of the difference between an ordinance and a resolution,
section 6.02 is of sufficiently like character to guide the court in weighing
the equity of laches as it applies to an unreasonable delay in effectively seeking
to repeal the three years of resolutions. See generally Radiation, Inc. v. Campbell,
200 So.2d 192, 193 (Fla. 4th DCA 1967) (“[R]ecognizing that in courts
of equity there is no such thing as a statute of limitations but rather that
the court is governed by the doctrine of laches, [but noting] the Florida Supreme
Court nevertheless held an equity action could be barred by applying the statute
of limitations .”) (citing Grable v. Nunez, 64 So.2d 154 (Fla.1953));
Reed v. Fain, 145 So.2d 858, 870 (Fla.1961) (“A statute of limitation
may, of course, be employed as a guide in an equity action in connection with
a careful consideration of all of the existing equities.”).
*10 Here, the delay could properly be considered unreasonable when gauged against
the thirty-day period that would have been imposed had City acted by ordinance
rather than resolution. Committee acknowledges the thirty-day limit would apply
to these petitions had they been directed at an ordinance. If the right to contest
an ordinance is cut off after thirty days, it follows that, at some point, the
right to overturn acts passed by resolutions may similarly be cut off.
*10 As noted by the trial court, the delay in this case was thirty times longer
than the time period provided in the charter. There comes a point when an unreasonable
delay in bringing an action trumps the right to vote on the questioned decision.
See Paget v. Logan, 474 P.2d 247, 252 (Wash.1970) (en banc) (“[A]t some
point in time, a proposed stadium project may progress to a point where only
administrative decisions will remain to complete the project. Initiative measures
concerning site selection at that time could well be inappropriate.”);
Kirsch v. City of Abilene, 244 P. 1054, 1056 (Kan.1926) (finding laches where
“[t]he plaintiffs ... stood by from April until September, while the city,
under the instruction of the voters, was disposing of bonds, wrecking a building,
incurring large obligations, expending considerable sums of public money, and
entering into contracts involving great amounts of money and levying a tax for
payment of the bonds, before they asserted their claims”).
*10 Finally, the trial court could properly consider that issuing the writ
in this case would have caused confusion as to whether the relocation in process
will proceed or whether it must be stopped. Committee argues forcefully that
the application of the proposed ordinance to the pending project could not be
determined until a later date, after passage. Disorder and disturbance to City
would result from having to stop the current relocation, wait for the vote on
the ordinances, and, if the ordinances passed, try to determine whether the
new ordinances are even applicable to the move in progress, and, if so, wait
until the voters either accepted or rejected the current site. As our supreme
court stated in Ladas, “[i]t would be most disastrous to permit the city's
business to drag along in such a slipshod, hit or miss kind of a way .”
53 So.2d at 324. Similar considerations were before the trial court here. I
would, therefore, find that there was no abuse of discretion.
*10 I would also conclude that the proposed ordinances are impermissibly vague.
MAY, J., concurs.
Fla.App. 4 Dist.,2007.
Wright v. Frankel
--- So.2d ----, 2007 WL 2847951 (Fla.App. 4 Dist.)
END OF DOCUMENT
(C) 2007 Thomson/West. No Claim to Orig. US Gov. Works.
Copyright © by Lake Worth Media All Rights Reserved.
