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Home My WebLink Aboutexhibit 4CITY OF MIAMI Petitioner vs. CODE ENFORCEMENT CITY OF MI MI, FLORIDA RICHARD AND SUNNY MANAGAN Owners of property located at 7836 NW 6 Court, Miami, FL Respondents And Owners of property located at: 3705 NW 2• Avenue, Miami, FL 662 NW 20 Street, Miami, FL ' 3441 NW 7th Avenue, Miami, FL 1413 NW 14 Place, Miami, FL 515 NW 2°d Street, Miami, FL (dismissed) 3297 NW 7th Avenue, Miami, FL ousmissed) Respondents And • CLEAR CHANNEL OUTDOOR, INC. Tenant BEFORE SPECLAL MASTER JEFFERY ALLEN CASE NO. 0117360 AND CASE NO.01 I7199 CASE NO.0117138 . CASE NO.0117228 CASE NO.0117200 CASE NO.0117350 tdumi„adj CASE NO.01 17353 (dumu,ed) .r OPINION AND ORDER A Code Enforcement administrative hearing on the above referenced matter was held on June 20, 2002. After careful consideration of the testimony, exhibits, transcript of the hearing, and accompanying written Iegal memoranda, the Special Master issues the following Opinion and Order. t This Opinion & Order should be read in tandem with the separately issued Order addressing preliminary issues raised by the Respondents in thou memorandum of law. Counsel for both parties submitted memoranda of law regarding jurisdiction. statutory interpretation. statute of limitations, procedure, estoppel, eodce and burden ofprocE Since neither memorandum of law provided proposed findings of facts or conclusions of law, this Special Master characterized these memoranda as a Motion to Discuss and the Response to the Motion to Dismiss. The Order is entitled "Order Denying Motion to Dismiss," issued 10/02. 1 Prelimina Statement This enforcement proceeding represents a series of cases involving billboards.located within 200 feet of a limited access highway. Based on a verbal agreement among the parties:, and for purposes of judicial economy, this Opinion and Order is binding upon those Respondents who are members of a class of property owners united by a common tenant, ie, Clear Channel Outdoor, and identical issues. Proc dural Historw In May 2002,the City of Miami (Petitioner) issued Notices of Violation to the Respondents and other landowners whose properties contained outdoor advertising signs (billboards) that were not in compliance with section 926. I S' of the Miami Zoning Code. The Respondents, 'who did not bring their property into compliance, were then summoned to appear before the City of Miami's Code Enforcement Board for an administrative hearing scheduled for June 2002. Courtesy copies of the Notice and Summons were forwarded to Clear Channel Outdoor Inc., the owners of the signs. On June 20, 2002, an administrative hearing was held before this Special Master, sittin as the Enforcement. Board. Au parties were present. g At the hearing, witnesses gave sworn testimony, documents were offered and received into evidence, and arguments were presented. FINDINGS OF FACT = . 1. The Petitioner (City of Miami) is charged with the responsibility to administer and enforce provisions of the Zoning Code governing the location of outdoor advertising signs within the City of Miami, The authoritythe includes the authorization to issue Notices of Violations for unpermitted outdoor advertising signs located within the Petitioner's jurisdiction. (Transcript at 19-20) P During the hearing held June 20. 2002, the parties stipulated to consolidate all advertising signs which are owned by Clear Channel Outdoor, Inc and located alonpending casesy withingarthih outdoor Miami. (Transcript at 237 241) For this reason, all references to the Respondents will be plural.e City of tit 2 2. The Respondents are Landowners, who have leased their property to Clear Channel Outdo or, 3. Clear Channel Outdoor, Inc. is a corporation engaged in the business of owning, erecting and maintaining outdoor advertising signs (billboards). Clear Channel, the successor of Eller Media and Ackerly Communication, owns and maintains billboards on the Respondents' pro e These billboards are located adjacent to expressways within Miami. (Transcript at 52-53, p174 208, 224, 353) 4, 4. Of the various billboards owned by Clear Ch which are located within 200 feet of the right-of-way of expressways anne , Clear Channel Within the Petitioner's jurisdiction. (Transcript at 21, 52-53, 202, 204, Exhibit 1) maintains 5 billboard sites in Miami. These signs fall 237, 271-277, Petitioner's 5. The billboard located at 7836 NW 6 Court was erected in 1963. Over the succeeding ears annual renewal notices were forwarded to the billboard owners by the City of Miami, The current billboard owners have received permit renewals notices for the sign for calendar e 1989 through 2001. (Transcript at 180, 34I-342,369-370, Respondents' E Y ars Exhibits #2 and #.¢)3 6. Each year Clear Channel has paid to the City of Miami the annual permit renewal fee for each of its 5 billboards. These permit fees have been paid for the years 1989 through2001 accepted by the City. and (Respondents' Exhibits #2, #3 and #4, Transcript at 227-228, 282-283, 370) •,;• 7. In practice, permit renewal notices and accompanying fee schedules are issued routinely by the City's Zoning Department each year. The notice includes a request to furnish a list billboards held by the permittee, of all (Respondents' Exhibits #3 and #4, Transcript at 316, 341-342) 3 Over the Petitioner's objections, Respondents' Exhibit 2 for identiacation was tendc:ed and received into evidence. Sec Transcript at 198. 3 8. On May 23 1985, tha Miami City Commission adopted Ordinance No. 9993 which prohibit the location of billboards within 600 feet of the right-of-way lines of limited access hi hwa ed including expressways. (Respondents' Exhibit) g ys' 9. On July 25, 1985, the City Commission adopted Ordinance No. 10037, amendinsr the previously enacted sign law. The amendment prohibited billboards, which face highways or expressways at a greater than a 30 degree angle, from being located within in 200 feet of the right-of-way lines of highways and expressways. The amendment also provided that "a maximum of I0 in number which face such highways may be.... located within 200 feet of the... highway or expressway after approval by the City Commission." (Respondents' Exhibit) 10. On January 27, 1998, the City Commis§ion adopted Ordinance II604. This Ordinance. repealed the 600 foot limit (set forth in Ordinance 10037) by extending the setback requirement to 660 feet. The Ordinance also qualified the 10 exempt billboards by adding the phrase "including those presently inplace." (Respondents' Exhibit) 11. The billboards at issue are not one of the 10 excepted billboards referenced in Ordinan No.1003 7 and Ordinance 11604. (Transcript at 23)e 12. As a result of the sign ordinances adopted by the City in 1985 and 1998, the billboards in issue became nonconforming due to their location.(Transcript at 115) 13. In May 2002, 17 years after the enactment of Ordinance 10037 and 4 years after the enactment of Ordinance 11604, the Miami Code Enforcemdnt • Division;'d;scovered the Respondent's signs were within 200 feet of the City's highways and expressways and were not one of the 10 billboards exempted from the law's proscriptions. Upon the discovering that the signs were not in compliance with Ordinance 11604 - codified as section 926.15 of the Zoning Code - the Code Enforcement Division cited the Respondents for the violation and ordered e signs to be removed. (Respondents' Exhibit #1) the I4. To date, the Respondents have not removed their signs. 4 CONCLUSIONS OF �,AW I. The Respondents are in violation of Section 926.15 of the City Zoning Code. That section expressly provides that no outdoor advertising sign may be erected or maintained within 200 feet of the right-of-way of an access highway or expressway unless it is one of 10 signs specialI permitted. y The section reads, in pertinent part: 926.112 Limitation on location, orientation, spacing height, type and embellishments of outdoor advertising signs in relation to limited access highways and expressways. Except as other wise provided in section 926.15.1, outdoor advertising signs may be erected, constructed, altered, maintained or relocated within in 660 feet but no nearer that 200 feet of any limited access highway and expressways as established by the State of Florida or any political subdivisions, provided that such sign faces are parallel to or at an angle of not greater that 30 degrees with the centerline of any such limited access highway and faced away from such highway. 926.112.1. No outdoor advertising sign which faces a limited access highway including expressways as established by the State of Florida to a greatere that permitted in section 926.15.2 shall b be erected, constructed, altered, maintained, .replaced or relocated within 660 feet of any such highways including expressways, easterly of I-95 and southerly of 36t street. Outdoor advertising signs, a maximum of 10 in number, incIuding those presently in place, which face such limited access highways may be erected, constructed, altered, maintained, replaced or relocated within 200 feet of the westerly side ofI-95 right-of-way lines, or that portion of the easterly side of I- 95 which lies north of 36th Street, or of any limited access highway, including expressways as established by the State of Florida or any of its political • subdivisions, westerly of 1-95; or which Iie easterly of 14S -and north-. i)f.36`a Street, after City Commission approval.... 2. The 5 outdoor advertising signs maintained, Clear Channel, are located within . 200 feet of an 10 signs identified as exempt. (Transcript 52-53, erected and owned by the Respondents' tenant, expressway. None of the 5 signs are one of the 23, 34, Petitioner's Exhibit 1) 3. Despite this fact, the Respondents, through phrase "10 in number including those presently intended to exclude all signs existing prior to the their witnesses, presented testimony that the in place" set forth in section 926.15 was not enactment of the provision. In support of their S position, the Respondents presented a chronology of earlier enacted preceding ordinances which regulated and established standards similar to the current law regarding outdoor advertisencr a signs. These ordinances grand -fathered all nonconforming signs adjacent to expressways limited the erection of new signs to 10, the Respondents contend. In particular, the Respondentsnd argue that §926.I5 was derived from Ordinances T9993, Resolution 85-540, CountyOrrdin 85-36 and Ordinance *10037, adopted in May 1985, May 1985, June 1935, and Jul ance I respectively. Based on a presumption of a legislative intent to incorporate identical ran a8e when the City Commission enacted §926.15, the Special Master should construe the current see law consistent with prior law to accomplish the original purpose. The Respondents concluden that the current law's reference to "a rnaeimum of 10 signs" merely refers to 10 "new" sins and doe not include in this number pre-existing nonconforming signs, such as the Respondent ss Therefore, signs classified as nonconforming uses are entitled to remain. (Transcript at 161-I64 166-17I, Respondents' Memorandum of Law) ' 4. The Special Master examined these ordinances and concludes that the Respondents' interpretation of the current sign law is incorrect. Section 4 of Ordinance * 1 1604, which is s the Genesis of Section 926.15 expressly y provides: "all ordinances or parts of ordinances insofar as they are inconsistent dr in conflict with the provisions of this Ordinance are hereby repealed." Thus, it is clear that the provisions of the prior ordinances which are inconsistent with curre Iaw are repealed. nt 5 . Alternatively the Respondents argued at the hearing that the Respondents' nonconforming signs may remain until the year 2005, the amortization expiration date. The Respondents argued that as a nonconforming structure, the signs are subject to the amortization, provision of goad 1104 which, generally,section permits an outdoor advertising sign to remain in existence 20 years after the date it becomes nonconforming. (Transcript at 190-I95, 288, 292-293, 37 Respondents' Memorandum ofLaw)92 394, The Special Master finds this evidence unpersuasive. The amortization provisions of §1107 2 2 s govern. Pursuant to that section, a non -conforming "characteristic of use" which t' outdoor advertising signs is subject to a 5 year amortization period, not a 20year includes period. '6 Therefore, the Respondents' signs were not lawfully in existence as of 1990, 5 year date the signs became non -conforming signs. Y s after the 6. The Special Master also finds the erroneous issuance of a renewal or re_issuanc original permits by the ZoningDe a of the Department does not convert an unauthorized use into a lawful use. Respondents mistakenly rely upon the constructive administrative interpretation of section 926.15 by the Department's conduct in which, by its actions, the Department perm continued existence of the billboards at the same location by renewing the original 1per the without requiring a new application or permit until 2001. (Transcript 355-358)permits While it is true that the construction of a statute or ordinance by those whose into effect isgiven � duty it is to carry it great weight, this is only true if the administrative interpretation is not clearly erroneous. Section 2107 of the Zoning Code supports this conclusion. That section expresslyprovides: p des: A. permit or certificate of use issued in error shall not confer any rights to construction or occupancy, and upon a finding that a permit has been so issued, it shall be revoked, provided actual construction has not been commenced. No permit or certificate , of use shall be deemed or construed to authorize violations of any provisions of this zoning ordinance, and such permits or certificates shall be deemed or construed to be valid only to the extent that the work authorized is lawful. Issuance of a building permit based upon plans shall not prevent the zoo administrator from requiring thereafter correction of efrors,. in :such•- plains - Issuance of a certificate of use based upon application shall not prevent the zoning administrator from requiring correction of the application or any violation of the use regulations of the district. 7. Accordingly its follows, relief under the doctrine of equitable estoppel is ina ro ' the Respondents' contentions. 1?P pnate, despite (Transcript at I90-194) The Zoning Department did not have the authority to renew the Respondents' permits in 1990- 2001. Estoppel may be invoke power to do that governmental agency only when the agency has the w d against ,a which it promised to do, which led the opposing party reasonably and justifiably to believe it would do. 7 The undisputed facts establish that the Respondents' advertising signs were not exempt from proscription of the sign law, notwithstanding the fact they were authorized and approved as such by the City. h 8. The Petitioner having established the Respondents' billboards are not permitted sins. The Respondents having failed to establish that an exception applies, it is concluded that the subject billboards are in violation of section 926.15 of the Zoning Code. Therefore they are subjectto removal.to . ORDER WHEREFORE based on the Finding of Facts and the Conclusions of Law, it is her ADJUDGED and ORDERED: eby • That all signs located within 200 feet of highways and expressways in Miami, Florida erected on the Respondents' property and owned by Clear Channel Outdoor, Inc. be removed within 90 days from the date of said order. DONE and ENTERED this 9 day of October, 2002 in Miami, Florida. LEN, Special Master Division of Code Enforcement Miami, Florida Filed with the Clerk of the Code Enforcement Division of Administrative Hearings this a" day of October, 2002. Copies furnished to: Douglas Halsey, and Erik S. Swenson, Esquire White & Case LLP First Union Financial -center 200 S. Biscayne Blvd Miami, FL 33131 Attorneys for Respondents Marty Patrick, Esquire 1141 Kane Concourse Bay Harbor Islands, FL 33154 Attorney for Respondents 8 . ti MID Joel Maxwell, Esquire/ &Erni Turin, Esquire City ofMIami Law Department 444 Southwest 2" Avenue, Ste 945 Miami, FL 33130 Attorney for the Petitioner Carol Licko, Esquire Hogan & Hanson, LLP 1111 Brickell Avenue, Ste I900 Miami, FL 33131 Attorney for the Petitioner • 9