HomeMy WebLinkAboutLegal OpinionSG/JOTTED INTO THE
PW3LIC RECORD FOlFF10E OF THE CITY ATTORNEY
CITY OF MIAMI
376 t\t ON 7-o-o6 MEMORANDUM
TO: Honorable Mayor'; d Members oft - City Commission
FROM: Jorge L. Fernan y : orney
DATE: July 27, 2006
RE: Required Qualifications of Planning and Zoning Board Members
I have been asked whether members of the Planning Advisory Board ("PAB") and
Zoning Board ("ZB") must be electors of the City of Miami ("City")?
The answer is yes, under the currently worded provisions of the City Code, PAB
and ZB members must be electors of the City.
The applicable and pertinent provision that deals specifically with PAB and ZB
members is § 62-124, City Code, which provides the qualifications for filling a vacancy
on the PAB or ZB. The pertinent subsection this Code provision states: "Persons
appointed shall be electors of the City. § 62-124(d), City Code"
The foregoing Code provision is a specific Code provision that governs the
qualifications of PAB and ZB members. As a specific provision pertaining expressly to
them it takes priority or precedence to the general rule in § 2-884, City Code.
The veneral Boards membership provision in the Code is as follows:
City Code Sec. 2-884 (a) and (b) states:
Sec. 2-884. Membership on boards.
(a) Unless otherwise specifically provided in the Charter or the Code, all
members of city boards shall be permanent residents of the city, own real
property in the city, or work or maintain a business in the city, and shall have
good reputations for integrity and community service. In addition, all board
members should have demonstrated an interest in the field, activity or sphere
covered by the board. Each board shall include at least one member whose
livelihood does not depend on the area regulated, administered or dealt with by
the board.
(b) Unless the city commission by four -fifths vote of its membership waives the
requirement that board members either reside in the city, own real property in the
city or maintain a business in the city, any member of a city board who ceases to
be a resident of the city and/or ceases to work, own real property or maintain a
business in the city during the term of his or her office shall immediately advise
the city clerk....
Required Qualifications of Planning & Zoning Board Members
Page 2 of2
Rules for interpreting ordinances state that a general ordinance (in this instance
the general membership provision in § 2-884) should try to be harmonized with a specific
provision (in this instance the specific membership for PAB/ ZB in § 62-124). However,
in the event of a conflict, as exists here, the special ordinance will prevail and control
over the general ordinance. City of St. Petersburg v. Carter, 39 So. 2d 804(Fla. 1949).
In addition, the use of the word "shall" normally creates an obligatory (as opposed
to a discretionary requirement) in a law. Lexecon, Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26,118 S. Ct. 956, 140 L. Ed. 2d 62(1998). Lastly, § 2-884 itself states
that if the Code or Charter provide other membership rules for a specific Board they will
be followed.
In conclusion, PAB and ZB members must be electors of the City. An elector has
been generally defined as a duly qualified voter, one who has a vote in the choice of any
officer, a constituent. BLACK'S LAW DICTIONARY (6TH Ed.) at p. 519.
In the event the City Commission wishes to modify the membership qualifications
for PAB/ ZB set forth in § 62-124, it may amend the section to make it read the same as
§ 2-884, and provide for a waiver by 4/5t'' vote of the requirement of being a resident or
property owner or working or maintaining a business in the City.
I have prepared the attached amendment for your review.
JLF:RSR
Attachment(s)
cc: Pedro G. Hernandez, City Manager
Priscilla A. Thompson, City Clerk