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HomeMy WebLinkAboutResolution No. 1974-47RESOLUTION No. 74 -47 A RESOLIrI'ION AUTHORIZING Tl Ir CITY ATTORNEY OF THE CITY OR CAPE CANAVERAL. TO TAKE LEGAL ACTION TO HAVE DUTIES OF THE MAYOR JUDICIALLY DETERMINED; AUTHORIZING PAYMENrl' OF LEGAL FEES AND COSTS; PROVIDING AN EFFECTIVE DATE. WHEREAS, a conflict has arisen over the Interpretation of the duties of the Mayor of the City of Cape Canaveral; and WHEREAS, the City Council deems it to be in the best interest of all concerned to have Judicial clarification of the duties of the Mayor; NOW, "THEREFORE, BE IT RESOLVED BY TI 117 CITY COUNCIL OF TIIE'• CITY OF CAPE CANAVERAL, FLORIDA, AS FOLLOWS: SECTION 1. The City Attorney is hereby authorized to take whatever legal action, including the filing of a suit in the proper Court, to have the question of the duties of the Mayor of the City of Cape Canaveral judicially determined. Payment of all attorney's fees and costs and expenses incidental to such action are hereby authorized. SUCTION 2. This Resolution shall become effective immediately upon Its adoption. ADOPTED by the City Council of the City of Cape Canaveral. Florida, this day of , 1974. Attest. City Clerk Approved as to form: ity Attorney F" \VOLT' ?!A\ AND SCOTT c xo r .* rfc�n r Isr x'rr'V,.ox,uw azu�z August 26, 1974 .........uo.......... Mayor Franklyn P. Nlaclay Cape Canaveral City Hall 105 Polk Avenue Cape Canaveral, Florida 32920 Dear Mayor Maclay: Thank you for your letter of August 26, 1974, in which you requested that the City Attorney petition the Court for a Writ of Mandamus. Article VII, Section 2, of the Charter of the City of Cape Canaveral establishes the duties of the Attorney. The City Charter states: and when required by the Council, he shall prosecute and defend, for and in behalf of the City, all complaints, suits and controversies In which the City is a party. lie shall furnish the Council, or the City Clerk, his opinion on any question of law relating to their respective powers and duties, and he shall perform such other professional duties as may be requiredof hlm by ordinance or resol ution of the Council or by this act, or such as are prescribed for City Attorneys under the general laws of this state, not Incon- sistent with this Charter." Our Interpretation of The Charter Is that we cannot proceed in any litigation either for or against the City, unless requested to do so by the City Councl1 by resolution or ordinance. Your request, therefore, that we seek a petition for Writ of Mandamus must be deferred to the City Council for their action. Yours very truly, Richard F. Scott Assistant City Attorney Sit. CVO LPN, \ti AND SCOTT 1A 475 cc oo. a u r orr .osr orrr yyu,.�u„ s,r u�cu• o . sc Nr.�r �rrr Isu4n F'wxrnw:r. ,sa ,r.r•.owa laosi..r••ara August 22, 1974 Mr. Albert J Francis, City Manager Mrs. Anita Ostrom, City Clerk City of Cape Canaveral 105 Polk Avenue Cape Canaveral, Florida Dear Mr. Francis and Mrs. Ostrom: This Is in response to your inquiry regarding whether or not City employees should assist Mayor Franklln Maclay in the preparation of documents for his appeal to the City's Board of Adjusme tit to be beard Monday evening. August 26. 1974. It is our opinion that Mr. J9aclay should present said appeal as a private citizen and not as an official of the City of Cape Canaveral. or In his capacity as Mayor. It is further our opinion that any official action taken by any officer of the City, on tx half of the City, can only be clone after approval of the majority of the City Council, or unless such action is specifically provided for by ordinance, charter or state law. There appears to be no authority for the Mayor to file an appeal to the Board of Adjustment on behalf of the City without such approval of the City Council. Therefore, the City should in no way assist the Mayor with the preparation of documents, or in any -other manner, as regards his appeal pending before the Board of Adjustment. Please let us know if you require further Information regarding this matter. _-Very t Illy yours. Richard F. Scott Assistant City Attorney rrs /t of Cape Canaveral / 10! POIN >V ENUE >YEI1 >�, E>O UiO> ]2lx0 � fE�EY N ]O! YU]11OO � : August 22, 1971 +j Lj r` ;1 /�� 9'c — Mayor Franklyn P. Idaclay 105 Polk Avenue Cape Canaveral, Florida 32920 Dear Mayor Maclay: Based ti-rhichnis opinion attached, the ve City ill noto ey, a copy be able to comply vrith your request to supply you with city secretarial services by city employees or any other services pertaining to documents Or correspondence relative to your appeal- to the Board of Adjustment, to be heard by t:..: Board on August 26th. Sincerely, CITY OF CAPE CANAVERAL Albert J. rrancia City Manager rhL attachment as stated 26 August 1974 M.r. Iuchaa3 P. Scott Attorney at Law. P. o. Box 513 200 ,I. 2 -'mitt Island Caussway Ferritt Island, Florida 32952 Re: Bequest for a Writ of Mandamus Dear 1-'a. Scott: The Cape Canaveral Charter and the City's 'delegation of nuthority' ordinance, No. 33 -73, both state ti-.at the i•ayor is responsible for "the faithful execution of nil ordinances ". 14o one else is given this responsibility in either document. In your letter of August 2, 1971% (enclosure 1) you reaf- firmed this by stating that "the Mayor of the City of Cape Canaveral has an affirmative duty and obligation to see that the ordinances of the City are enforced." This opinion to the i'ayor, however, is in direct opposition to the opinion in your letter to th' Ct.ty 1hnn,Sar Wlu City Clr_;t dated 22 August 1971% (enclosure 2) regarding the enforcement of the Zoning ordinance. Your statement to then that "there PPea Hoard s to be no authority for the i'ayor to file an app eal to of Adjustment on behalf of the City without such naps a! of the City Council ", based on your opinion that ` sy official actioonly taken by any officer of the City, on behalf of the City, be done after approval of the najoritY of the City COunell, or unless such action is specifically provided for by ordinance, charter, or state law" appears not to have talcen into account the following: 1) that the City Charter and City. ordinance 33 -73, as noted cution makes ;ayorimustibexe- considered separately from the other City officials. 2) that the City Zoning Ordinance is certainly one of tce ordinances that the Kayo,^ has an obligation to see en- forced. 3) that the City I'.anager has a responsibility under Ordi- nsnee 33 -73 to "assist the Mayor In carrying out the ad- ninistrative and executive responsibilities delegated to the 7lsyor." These Include enforcing ths l ordinances and other duties such as specified (letter from Eayor ;hclay, 26 Auluet 1974, pipe 2, contlnucd) - Th- City Manager states In his letter dated 22 t:ugust (C-103117e 3) that he will not provide secretarial or ot:^_ r (r ^production) services relnti•'c to the Eiyor +s append to ti's 3oard of Adjustment. This is in conflict with his responslbil- ity to assist the X.ayor In enforcing both the :state Law anC tta City's 'toning Ordinance as noted above in ordinance 33 -73. l conflict between the two opinions (enclosures 1-and 2) of the City Attorney has resulted in confuolon in enforcing city ordinances and is In opposition to the Ordinance's direct - Ivo to nssist the :ayor in cnforcin.3 all ordinances including the Zoning Ordinance. However, Zonlnc, Ordinance enforcement is not the only problem. A number of City ordinances are only haphazardly en- forced or not at all.. For example; 1) The Southern Standard Housing Code was adopted In 1967. It has never been implemented even though I requested enforcement in July 1973 and negotiated a half a man - year from the Police Denartment In October 1973 to assist the Building Official in enforcing the Code. 2) A sign Ordinance has been In effect since 1965. The pre- sent status is shown In enclosure 4. Most of the signs in the state road risht -of -way were Identified in 1972 during trn fact findln :gall: ale. ^.s Ain by' the Planing- and %uni.ng Board with one of the Council members. No corrective action was ever taken. 3) Zoning Ordinance violations: n. Visibility at intersections - In 1973 1 identified 62 intersections in :violation and cent out letters requestin'; voluntary corrective action. About 20," complied. :;owever,.no official follow -up action took nlaca on the renaming violations. For present status see enclosure 5. b. Lack of sidewalks on `..a Ocean street -ends - Although the Zoning Ordinance requires sidewalks in necordanca with city specifications in conjunction with the con- struction of any building on a property abutting a city street, the Building Official trith the City Sngl- near decided that since the street came to 2 feet of the lot line, no sidewalks are required. A variance from the Zoning ordinance regulations mny be granted only by the Board of Adjustment. Since this decision ets a precedent for 15 Ocean street -ends and fixes the street width at 5.5 feet below the minimum recom- nanded by the American, Institute of Architects, I brought It to the attention of the City tanager and Council. The Council stated that It was not their con- cern and directed me to take it to the Board of Adjust- ment an a private citizen. I did and lost (enclosure 6). • "(letter from Layor iiaclaY, 26 Au; ustl97!; ^o . p' 3, continued) It requires a 4tl vote of the Board of Adjustment to overturn a Building Official's decision. c. S.oning cha.°Ige from R -1 to R_3._ The previous Building O:ficlal approved a change in zoning not only t+lthont It Was it;c but also without notifying anyone. ;;hen It Building discovered and brought to the attention•of the Building Official, he upheld the chinga. For details see enclosure 7, 2 '- - entered an appeal with tit Board of Ad,iu3 tment a7d the case will ba heard oy Aug113t 26, 1974. Eio«evar, -,Inca I I�ava been forced to appeal as a private citizen, I believe that tit; oast Will be decided not on the facts of the case o_ case whether or not I am an aggrieved' citizen.. I felt strongly enough In both of these cases to pay the ao Peal fees out of My Own pocket. _ In A methodothat resolve yor confusion and to establish I act requesting that you S 1 ordinances, tents, examples, and attachmentsnOfh this uletter, fornat4rltoof Nandamus that would; 1. Direct the City Manger and the departments under him to be responsive to requests from the d•Lcyorfor enforcement of ordinances. 2. .111o:v the Mayor the use of the Office of the I '-ayor to file complaints to the City :_anger and hlsdepartments ar.3 ap_ peals to the Board of Adjustment. 3. Direct the City Manager to provide socretnrlal and assn_ elate services for the Nayor that ra deems expedient r._nd proper. 4• Direct the City Attorney to file at tha request of the E,ayor appeals to the Board of Adjustment. 5. Direct the City Manger to provide a suitable office space wlthln a reasonable period of time when requested by the E:ayor. (Last year the i:syor's private office, executive desk, chair, and credenza which had been there sine building was built were ta!:en from him.) s the Yours very truly, FR'd; FZ C P- RACL(A ap'- Canaveral,, FloridaOr . t (Letter fro-1 1'ayor Paclsy, 26 Ausunt 1971, peige 4, continued) . ':nclosuras: 1. I.:tter. City Attorney to t:ayor, dated 2 All;;. 197+ 2. Lotter. City Attorney to City l:arager /Clty Clorl,., dated 22 Aug. 1974 j. Letter. City idvtager to i:ayor, dated 22 Au: ;. 1974- 4. Letter. I'ayor to Building Official /Police Chief, dated 14 Aug. 1971. Subject: sign Ordinance violations.. $. :eno. Mayor to E. A. Allen, 14 Aug. 1974• subject: Com- plaint - Visibility at Intersections. G. Letter. idayor to City Snglnear, dated 11 Aug. 1971, Sub- ject: Sidewp.lks at Ocaan stroet -ends. 7. Letter. Payor to Board of Adjustment, dated 17 Aug. 1974, Subject: Building Officlalts decision re Ocean Place, r_ero dated 14 Vey 1974.