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Submittal-Ines Marrero-Priegues-Letter to City Commissioners
Holland & Knight Submitted into the public record fo ite (S) 701 Brickell Avenue, Suite 3300 I Miami, FL 33131 I T 305.374.8500 I F 305.789.7799 Oil Holland & Knight LLP I www.hklaw.com ---_ City Clerk Ines Marrero-Priegues 305.789.7776 ines.marreroG hklaw.com July 25, 2018 Via Hand Delivery Honorable Francis X. Suarez, Mayor Honorable Keon Hardemon, Chairman Honorable Ken Russell, Vice Charman Honorable Willy Gort, Commissioner Honorable Joe Carollo, Commissioner Honorable Manolo Reyes, Commissioner City of Miami 3500 Pan American Drive Miami, FL 33133 Re: Legal Validity and Effect of Resolution No. 4520 on Existing Entertainment Establishments Dear Mayor Suarez and City Commissioners: The undersigned is the legal representative for West Flagler Associates, Inc. and the Havenick Family, a family that, in the span of three generations, has dedicated itself to business investments, job generation, civic activism and exemplary philanthropy in our community. I write to you in connection with proposed City Resolution No. 4520 (the "Resolution"), currently on the Agenda as RE.19 on the July 26, 2018 Meeting of the City Commission. Specifically, I would like to make you aware of the Resolution's legal invalidity as it relates to creating any kind of moratorium, providing any "zoning in progress" notice and/or negating, abrogating or diminishing any vested rights of persons and/or property owners relating to the development of Entertainment Establishment facilities under the terms of the City's existing zoning ordinances. The Resolution calls for the addition of new requirements on the zoning applications of Entertainment Establishments as defined under the Zoning Ordinance of the City of Miami ("Miami 21 Code"), and specifically directs the City Manager to "immediately commence the Anchorage.' Atlanta I Austin I Boston I Charlotte I Chicago I Dallas I Denver I Fort Lauderdale I Houston I Jacksonville I Lakeland Los Angeles I Miami I New York I Orlando I Philadelphia I Portland I San Francisco I Stamford I Tallahassee I Tampa I Tysons Washington, D.C. I West Palm Beach 1.1511) - S40("ii1Ao\- \nes hvrero - \)fie ves - L\\t( \o �ounwi1 sS1 oer� Honorable Francis X. Suarez Honorable Miami City Commissioners July 25, 2018 Page 2 Submitted into the pub' record fqr ite ) E. A on - `1 ! Z 6 . City Clerk process of amending the provisions of the Miami 21 Code that regulate Entertainment Establishments." Resolution, Section 2. Importantly, however, Section 3 of the Resolution appears to be an attempt to create a moratorium on further operation or development of Entertainment Establishments until such time as the desired additional requirements are added to the Miami 21 Code, stating: From and after July 26, 2018 through the Effective Date of the proposed Ordinance, this Resolution, its Exhibits, and any and all subsequent versions thereof will serve as notice that the laws regulating the approval and operation of Entertainment Establishments, including specifically gambling uses, may be amended, revised, or terminated. Notice is also given that all persons proceed at their own risk and no vested rights of any type shall attach to any development approvals or development permits sought or obtained during the entirety of the adoption process of the proposed Ordinance. (emphasis added). To the extent that the language above seeks to act as a bar against the further operation or development of existing Entertainment Establishments until such time as the proposed Ordinance is adopted, Section 3 of the Resolution is invalid under Florida law. This language is a veiled attempt at establishing a "zoning in progress" notification to persons and property owners. And to the extent that it attempts to raise a red flag and establish some sort of notice, it is flawed and invalid. The City should know better. Ironically, back in 2007, in anticipation of Miami 21 and the nullification of Ordinance 11000, the City considered the adoption of a "zoning in progress" ordinance. That draft legislation (City of Miami Legistar File No. 06-00366zt) provided for published written notice and, more importantly, established that interim protection measures, i.e., the period of time during which applications not consistent with the code amendment may not be reviewed pending consideration of the code amendment commenced on "the date that either the Planning Advisory Board ("PAB") recommends approval of a new zoning code ... or from the date the city commission at first reading, adopts a new zoning code, ... whichever occurs first, and for a period of 180 days, thereafter unless dissolved earlier by the city commission." The Resolution, in comparison, directs the City Administration to draft a code amendment for future consideration and possible final adoption, but with an arbitrary, retroactive application. This action squarely contravenes fundamental principles of law, equity and private property rights. Florida law is clear that legislative items substantially affecting land use, such as substantially changing permitted use categories or rezoning of specific parcels of real property, may only be enacted through the adoption of an ordinance utilizing the specified notice and hearing requirements that govern zoning and rezoning of property. See Daytona Leisure Corp. v. City of 1159052517_v1 Honorable Francis X. Suarez Honorable Miami City Commissioners July 25, 2018 Page 3 Submitted into the pubic record for it m(s) — on 1 ‘t City Clerk Daytona Beach, 539 So. 2d 597, 599 (Fla. 5th DCA 1989); Baywood Construction, Inc. v. City of Cape Coral, 507 So. 2d 768, 769 (Fla. 2d DCA); §166.041(3)(c), Florida Statutes. Further, multiple Florida courts have held that a municipality cannot do an end -run around this ordinance requirement by passing resolutions or "emergency ordinances" that will implement the desired zoning changes while a formal ordinance is being drafted and considered. See City of Gainesville v. GNV Investments, Inc., 413 So. 2d 770, 771 (Fla. 1st DCA 1982) (holding that city resolution implementing moratorium on development of lands targeted by intended rewrite of zoning ordinance, until such time as a rewrite of the city zoning ordinances could be accomplished, was illegal and ineffective attempt to suspend and amend city's existing zoning ordinances while avoiding notice requirements); City of Sanibel v. Buntrock, 409 So. 2d 1073, 1074 (Fla. 2d DCA 1981) (holding that city's implemented moratorium on commercial development in anticipation of amending zoning ordinances was invalid, since the moratorium's passage failed to adhere to the required notice and hearing requirements for zoning changes). Here, Section 3 of the Resolution purports to effectively create a moratorium on the development of properties to be affected by the proposed ordinance, stating that no rights of any type will attach to development approvals or permits issued to these affected properties -- from the date the Resolution is adopted, until the proposed Ordinance is adopted. Since this moratorium is being enacted via a simple resolution, without the required notice and hearing procedures for zoning changes under §166.041, this portion of the Resolution will be rendered null and void if enacted. See Daytona Leisure, 539 So. 2d at 599 ("Florida follows the majority view whereby measures passed in contravention of notice requirements are invalid (null and void if not strictly enacted pursuant to the requirement of section 166.041))." If the intent is to provide my client of some type of "zoning in progress" notice and/or to attempt to abrogate, diminish or void any vested rights in the development of an Entertainment Facility or bar any claims in law or equity, the Resolution fails to legally accomplish any and all of that. #59052517_v1 Honorable Francis X. Suarez Honorable Miami City Commissioners July 25, 2018 Page 4 Submitted into the publhc record f r ite City Clerk Accordingly, and for all the reasons stated here, I respectfully request that you deny the Resolution. Respectfully, HOLLAND & KNIGHT LLP G�.wr• Ines arerro- riegues' Cc: Emilio T. Gonzalez City Manager City of Miami 444 SW 2nd Ave., l Oth Floor Miami, FL, 33130 Victoria Mendez, Esq. City Attorney City of Miami 444 SW 2nd Ave, 9th Floor Miami, FL, 33130 Enclosures (Cases Cited and Legistar File) AA4e- 4590525 17_v1 Submitted into the publiR record f�Oy�t6e on // I City Clerk City Commission Meeting Agenda September 27, 2007 PZ.4 06-00366zt ORDINANCE FIRST READING TO BE DEFERRED BY ADMINISTRATION TO A DATE TO BE DETERMINED AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING ARTICLE 21, SECTION 2105.4, IN ORDER TO ENSURE THIS SECTION APPLIES TO OCCUPANCY AND USE OF LAND; AND BY AMENDING SECTION 2105.5, SPECIFICALLY, BY ENACTING A NEW SUBSECTION 2105.5, ENTITLED, "INTERIM PROTECTION MEASURES PROVIDING FOR ZONING IN PROGRESS AS TO APPLICATIONS FOR DEVELOPMENT PERMITS, AS DEFINED HEREIN, UNDER ORDINANCE NO. 11000 WHEN ORDINANCE NO. 11000 IS IN THE PROCESS OF BEING REPLACED BY A NEW ZONING CODE;" PROVIDING FOR INTENT; NOTIFICATION; INTERIM PROTECTION MEASURES; APPLICATIONS FILED PRIOR TO NOTIFICATION; EXEMPTIONS; AND SCOPE; AND FURTHER AMENDING SECTION 2107 TO PROVIDE THAT CERTIFICATES OF OCCUPANCY GRANTED IN ERROR DO NOT AUTHORIZE VIOLATIONS; CONTAINING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. APPLICANT(S): Pedro G. Hernandez, City Manager, on behalf of the City of Miami FINDINGS: PLANNING DEPARTMENT: Recommended approval. PLANNING ADVISORY BOARD: Recommended approval to City Commission on April 18, 2007 by a vote of 6-3. PURPOSE: This will enact a new section 2105.5, which provides for interim protection measures implementing zoning in progress for a defined and finite interval of time during the pendency of the adoption of a new zoning code. 06-00366zt-ZIP (4-18-07).pdf 06-00366zt-ZIP April 4 (Workshop).pdf 06-00366zt - PAB Backup - April 5, 2006.PDF 06-00366zt and 05-00658zt-ZIP March 1 2006 Draft Version 1 (Workshop).pdf 06-00366zt - PAB Supporting Documentation - March 21, 2007.pdf 05-00658zt-ZIP May 31 2006 Draft -Version 2 (Workshop).pdf Sample -City of Miami Ordinanance Chapter 13 by DPZ.pdf Sample -Village of Key Biscayne ZIP and Moratoria.pdf Sample -City of Fort Myers Land Regulation Chapter 25.pdf 06-00366zt PAB Reso.PDF 06-00366zt CC Legislation (Version 2).pdf 06-00366zt CC FR 06-28-07 Fact Sheet.pdf 06-00366zt CC FR 09-27-07 Fact Sheet.pdf DATE: ACTION: JUNE 28, 2007 DEFERRED City of Miami Page 25 Printed on 9/21/2007 APPLICANT PAB HEARING DATE REQUEST/LOCATION PETITION PLANNING RECOMMENDATION BACKGROUND AND ANALYSIS: PLANNING ADVISORY BOARD CITY COMMISSION Submitted into the public record foir iteip (s) , �q on `l / L6 / l • City Clerk PLANNING FACT SHEET FILE ID: 06-00366zt City of Miami Planning Department April 18, 2007 Consideration of amending Articles 21; Section 2105 of Zoning Ordinance 11000, Status of Application for Development Permits or Certificates of Occupancy, as amended. Consideration of an Ordinance of the Miami City Commission amending Article 21 Section 2105.4 in order to ensure this section applies to occupancy and use of land; and by amending section 2105.5, specifically, by enacting a new subsection 2105.5 entitled "interim protection measures providing for zoning in progress as to applications for development permits, as defined herein, under Ordinance no. 11000 when Ordinance no. 11000 is in the process of being replaced by a new zoning code'; providing for intent; notification; interim protection measures; applications filed prior to notification; exemptions; and scope; and further amending section 2107 to provide that certificates of occupancy granted in error do not authorize violations; containing a repealer provision and a severability clause; and providing for an effective date. Approval. This will amend Article 21, Section 2105.4 of the Zoning Ordinance in order to ensure this section applies to occupancy and use of land; and by amending section 2105.5, specifically, by enacting a new subsection 2105.5 entitled "interim protection measures providing for zoning in progress as to applications for development permits, as defined herein, under Ordinance No. 11000 when Ordinance No. 11000 is in the process of being replaced by a new "Zoning Code": providing for intent; notification; interim protection measures; applications filed prior to notification; exemptions; and scope; and further amending section 2107 to provide that certificates of occupancy granted in error do not authorize violations; containing a repealer provision and a severability clause; and providing for an effective date. (See attached frequently asked questions for further information). Item #2 VOTE: CITY OF MIAMI • PLANNING DEPARTMENT 444 SW 2ND AVENUE, 3RD FLOOR • MIAMI, FLORIDA, 33130 PHONE (305) 416-1400 Date: 4/9/2007 Page 1 ZONING IN PROGRESS Frequently Asked Questions Q: What is zoning in progress? Submitted into the public record flo�er�( A) �� . � �( on 6/ City Clerk 4/5/07 A: It is an interim protection measure, or a pause button, on the City of Miami's review and approval of applications for new development. The measure is in effect while the City Commission considers the adoption of a new zoning code which if adopted may not allow the requested uses or structures that are requested in the new applications. Applications for such proposed prohibited uses or struetur._cs..will be received by the city after the zoning on progress ordinance takes effect, however, they will not be processed through zoning review until the time limits of the zoning in progress ordinance have lapsed. Q: When does zoning in progress go into effect? A: The City of Miami has proposed the effective date to be the date on which the new zoning code Is either recommended for approval by the Planning Advisory Board or adopted on first reading by the City Commission, whichever occurs first. Q: Is this a moratorium? A: A zoning in progress ordinance is not like a moratorium in that it does not stop the city from accepting all applications for development. Any development application that complies with, or is not affected by the proposed zoning ordinance amendment, will be accepted and processed as normal. In addition, this interim protection measure includes a pre -established maximum time limit, not to exceed 180 days, in which the city commission must act on the proposed zoning ordinance amendment, or else all applications that have been held under the ordinance will be released and processed as normal, whether theycomply .with the. -new zoning ordinance amendment or not. Q: What happens if I file an application for development prior to the zoning in progress date established in the zoning in progress ordinance? A: If the application is not affected by the proposed code amendments, then the application is accepted and processed as normal. If you have filed an application that would be affected by the proposed code amendments but it was fried prior to the zoning in progress effective date, then the application is accepted and processed as normal. However, once the approval is obtained, the permit must be obtained within certain specified time limits, depending on the particular type of permit being sought. Submitted into the public record for item(s) (s) �F \q on 'lit 6/ . City Clerk Q: If my application is processed for approval under the zoning in progress ordinance, how long will I have to get a building permit? A: One hundred eighty (180) days of the date of the complete application for all development permits for which no specific time frame is given in this subsection; or within ninety (90) days of the effective date of the new ordinance, whichever is greater; time extensions for periods not to exceed ninety (90) days shall be granted by the zoning administrator for development permits that are actively within the review process; actively within the review process shall mean that the pending application has received comments from at least one of the building department disciplines and the applicant is in the process of making required changes to the pending application in order to satisfy such building department comment(s); One year from -the effective date of Class II special permit, special exception, or variance approval by the appropriate department, or final public hearing approval, as the case may be; or within ninety (60) days of the effective date of the new ordinance, whichever is greater; time extensions for periods not to exceed ninety (90) days shall be granted by the zoning administrator for development permits that are included within the scope of the approved special permit, or variance for associated development permits that are actively within the review process; actively within the review process shall mean that the pending application has received comments from at least one of the building department disciplines and the applicant is in the process of making required changes to the pending application in order to satisfy such building department comment(s); Within six (6) years from the final public hearing approval by the City Commission for major use special permits, provided that time extensions (non -substantial modifications) are granted as provided for in Article 17; and For subsequent phases of an approved phased project (beyond phase I), within six (6) years from the issuance of a building permit for phase I of said approved phased project; and no snore than subsequent six (6) year periods between additional phases; subsequent six year periods shall be counted from the issuance ofa building permit of each phase to the issuance of a building permit on the subsequent phase(s). Q: What if I don't get my building permit on time? A: Then the application for development permit will have to be modified to meet the newly adopted regulations; the plans will be rejected by zoning. Submitted into the publi� record fo ite s) `1 e , n on City Clerk Q: What if I don't get my application for development filed prior to the zoning in progress date established in the zoning in progress ordinance? A: If the application is not affected by the zoning ordinance amendment in question, then it is accepted and processed as normal. If the application is filed after the effective date of zoning in progress, and is affected by the zoning ordinance amendment in question, then it is received by the City of Miami's Zoning Administrator and time and date stamped. All applications for uses and structures which would not be permitted by the proposed zoning ordinance amendment will be held by the Zoning Administrator until such time that the City Commission acts on the proposed amendment. If the amendment is adopted prior to 180 days, all such applications will be returned to the applicants; if the amendment is rejected by the City Commission, all applications being held will be accepted and processed as normal; and if the City Commission fails to act within 180 days, then all applications being held will be accepted and processed as normal. Q: How long can my application for development be held without processing while a new ordinance is being considered by the City Commission? A: No longer than 180 days from the effective date of the particular zoning in progress date established in the ordinance. Q: If I file an application for development that is held because it is affected by a proposed new ordinance, and then another new ordinance is proposed by the City Commission prior to the 180 days established for the first ordinance, am I subject to another 180 day wait because of the second ordinance? A: No; each new ordinance is independent of the other and the effective zoning in progress date is particular to each ordinance. A second 180 day wait for an application filed under the first proposed ordinance will not be added because of a second proposed ordinance. An application received when a proposed ordinance starts the 180 day clock are time and date stamped in order for the City of Miami to know when it came in, so that it is only held up for the ordinance amendments filed prior to the receipt date of the development application. If a new ordinance amendment is proposed, it will have its own effective zoning in progress date based on the PAB action or commission adoption. City of Miami Legislation Resolution Submitted into the public record qr ite s) on /6 City Clerk City Hall 600 Pan American Drive Miami, FL 33133 www.miaminov.com File Number: 06-00366zt Final Action Date: AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING ARTICLE 21, SECTION 2105.4 IN ORDER TO ENSURE THIS SECTION APPLIES TO OCCUPANCY AND USE OF LAND; AND BY AMENDING SECTION 2105.5, SPECIFICALLY, BY ENACTING A NEW SUBSECTION 2105.5 ENTITLED "INTERIM PROTECTION MEASURES PROVIDING FOR ZONING IN PROGRESS AS TO APPLICATIONS FOR DEVELOPMENT PERMITS, AS DEFINED HEREIN, UNDER ORDINANCE NO. 11000 WHEN ORDINANCE NO. 11000 IS IN THE PROCESS OF BEING REPLACED BY A NEW ZONING CODE"; PROVIDING FOR INTENT; NOTIFICATION; INTERIM PROTECTION MEASURES; APPLICATIONS FILED PRIOR TO NOTIFICATION; EXEMPTIONS; AND SCOPE; AND FURTHER AMENDING SECTION 2107 TO PROVIDE THAT CERTIFICATES OF OCCUPANCY GRANTED IN ERROR DO NOT AUTHORIZE VIOLATIONS; CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Miami is experiencing significant development activity while engaged in a reevaluation of its planning and zoning process that may result in changes to the zoning code of the City Code, including the adoption of a whole new zoning code; and WHEREAS, it is prudent as a matter of general policy and well accepted as a matter of zoning practice under the principles of "zoning in progress" and equitable estoppel that, when amending the zoning code, or enacting a new zoning code, the City should provide an interim period during which applications that are inconsistent with the proposed new regulations are not processed until the new regulations are in place, so long as applicants have notice of the intent of the City to amend the zoning code; and WHEREAS, the City of Miami finds it necessary and appropriate to adopt transitional development approval requirements involving the applicability of equitable estoppel in order to prevent or, at minimum, reduce incompatible development within the City of Miami during the time the City finalizes, conducts the necessary public hearings, and adopts the new zoning code and makes the other Code changes as are required by law or are otherwise in the best interests of the City and its residents; and, WHEREAS, the City of Miami Planning Advisory Board (PAB) considered this item at its 2007 meeting, Item No. and by a vote of — to _ has recommended the adoption of this item to the City of Miami City Commission; and WHEREAS, the City Commission after careful consideration of this matter deems it advisable and in the best interest of the general welfare of the City of Miami and its citizens to amend its Zoning Ordinance as hereinafter set forth. City of Miami Page 1 of 7 Printed On: 4/9/2007 Submitted into the public record fqr ite (s) ``i\E. N on 9/ Z h X . City Clerk File Number: 07-00199mu NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA, AS FOLLOWS: Section 1. The recitals and findings contained in the Preamble to this Ordinance are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City of Miami Zoning Ordinance is hereby amended by amending Article 21 as follows: {1} "Article 21 Administration, Enforcement, Violations, and Penalties Sec. 2105. Status of applications for development permits. 2105.1. Status of development permits issued prior to the effective date of Zoning Ordinance No. 1100 (September 4, 1990). * * * 2105.4.2. Construction, use, and occupancy. If actual construction is not under way, and previous issued building permits or certificates of use or occupancy have expired or become void, new building permits or certificates of use or occupancy shall be required and shall be in accord with any new regulations established by the amendment of this ordinance. 2105.4.3. Occupancy or use not involving pending building permits. Where certificates of use or occupancy do not relate to a pending building permit, unless such use or occupancy has been established prior to the effective date of this ordinance or its amendment which would prohibit such occupancy or use, such certificates shall become void, and new certificates, conforming to the new regulations, shall be required. * 2105.5. Interim Protection Measures providing for Zoning In Progress as to applications for development permits, as defined herein, under Ordinance No. 11000 when Ordinance No. 11000 is in the process of being replaced by a new zoning code. 2105.5.1. Intent It is intended and hereby eressiy provided that except as provided for below and except for Class I special permits and certificates of occupancy, no development permits including, without limitation, special permits special exceptions budding permits, variances, rezoning or certificates of use and all other applications or requests for project approval (collectively "development permits"), shall be granted to any property owner or lawful representative thereof for structures or activities within structures during the interim period between the time that a new zoning code prohibiting such structures or uses are either recommended for approval by the Planning Advisory Board ("PAB "), or adopted on first readinq by the City Commission, whichever occurs first, and the time that they take effect. City of Miami Page 2 of 7 Printed On: 4/9/2007 Submitted into the public' record fgrite91(s) 91E11 on 1/ 7 6 / 1 g . City Clerk File Number. 07-00199mu An Interim Protection Measure is hereby created in order to allow a new or amended zoning code to be properly considered prior to the approval of new applications for development that will be prohibited as a result of the adoption of the new zoning code. A new zoning code shall include its associated atlas. These interim protection measures shall only apply to Quadrants of the city, or the entire city, as the case may be, when such quadrants are under consideration for the implementation of a new zoning code. The quadrant boundaries, referenced herein and incorporated by reference. shall be delineated on a map available to the public at the City Clerk's office and by the Director of the Planning Department. 2105.5.1.1. Notification. The City shall publish a written notice in a newspaper of general circulation at least ten (10) days prior to the consideration of any new land development regulation by the Planning Advisory Board, or city commission whichever occurs first. This date of publication is the date of notification under subsection 2105.5 of a pending "Zoning in Progress". The written notice shall state that it is a "Notice of Zoning in Progress". 2105.5.1.2. Interim Protection Measures. From the date that either the Planning Advisory Board ("PAB") recommends approval of a new zoning code, or from the date the city commission at first reading, adapts a new zoning code, whichever occurs first and for a period of one hundred eighty (180) days thereafter unless dissolved earlier by the city commission, no application for special permit, special exception, building permit, variance, rezoning (including amendments to the zoning atlas of the city), certificate of use or any other application for development permit (excluding Class I special permits and certificates of occupancy) shall be approved by the city for any structure or use that may be prohibited by such proposed amendment or new regulation. Applications may only be accepted and approved for structures and uses that are not affected by the particular amendment(s) or new zoning code, and which conform in all respects thereto. During the 180 days referenced above, while a new zoning code regulations are being considered, the city will receive applications to be held by the zoning administrator until such time that the new proposed regulations are either adopted, rejected or abandoned by the city commission, or until such time that the 180 day period referenced herein lapses. Each proposed ordinance consisting of an amendment to the zoning code shall be considered a separate ordinance for the purposes of this section. Therefore, all applications for development approval received and held under these interim protections measures shall be time and date stamped by the zoning administrator so that a record is kept of when such applications were received; if the city proposes another amendment subsequent to the date and time stamp on an application for development approval already being held, the new proposed amendment will not start a new 180 day time period on pending applications. In the event that the city commission adopts the new regulations, the zoning administrator will return all applications received during the period of time covered under this section which do not conform to such new regulations; in the event the city City of Miami Page 3 of 7 Printed On: 4/9/2007 File Number: 07-00199mu Submitted into the public record fgr��fn e�s) RE E. iq on `1% . City Clerk commission reiects the new regulations, the zoning administrator will accept for processing any application received during the period of time covered under this section; in the event the city commission withdraws or abandons the new regulations, the zoning administrator will accept for processing any application received during the period of time covered under this section; and, in the event the city commission fails to act on the new regulations within the 180 days allotted above (from the date as specified in Section 2105.5.1.2.) the zoning administrator will accept for processing any application received during the period of time covered under this section. 2105.5.1.3. Applications filed prior to the date of recommendation for adoption or adoption at first reading. Any property owner or lawful representative thereof who, prior to the beginning of the 180 day period established pursuant to section 2105.5.1.2, earliest date in which: PAB recommends for adoption, or City Commission adopt, as applicable, has properly filed a complete application for a development permit(s) with the appropriate city department, is hereby authorized to proceed with such applicatiojs) regardless of the subsequent repeal of regulations relevant to such requested activity, unless the contrary is specifically decreed. The term complete application shall mean an application that meets the requirements of Articles 15, 16, 17, 19 and section 2502 of this Code and includes the customary and usual documentation, reports, forms and materials which are to be submitted in the city for the special permit, special exception, variance, rezoning, amendments to the zoning atlas, certificate of use or building permit, as may be applicable. The City shall maintain development permit application forms that provide the documentation required for each type of development permit in order to be determined complete. In no case shall an application be accepted or modified subsequent to the effective date of an ordinance which precludes the approval or action applied for. An applicant for a development permit shall be allowed to make nonsubstantial changes to an approved Class II, Special Exception or Major Use Special Permit, as provided in Articles 15, 16 and 17 of this ordinance, or changes to other development permit applications as a result of the City's review of the application. In the case of approved special permits and variances, development permits may be accepted and approved by the city for such subordinate development activity covered by and included in the scope of such approved special permit or variance (i.e. if a special permit requires re -platting, such activity will be allowed under the scope of the special permit). The necessary building permit(s). certificate(s) of use or other development permits, whichever is first required, when reviewed under expired regulations, shall be obtained: a) Within one hundred eighty (180) days of the date of the complete application for all development permits for which no specific time frame is given in this subsection; or within ninety (90) days of the effective date of the new ordinance, whichever is greater time extensions for periods not to exceed ninety (90) days shall be granted by the zoning administrator for development permits that are actively within the review process: actively within the review process shall mean that the pending application has received comments from at least one of the City of Miami Page 4 of 7 Printed On: 4/9/2007 Submitted into the pubjicE ,'q on record �f/ grte���(s) �� // (. City Clerk File Number. 07-00199mu building department disciplines and the applicant is in the process of making required changes to the pending application in order to satisfy such building department comment(s)i b) Within one year from the effective date of Class II special permit, special exception, or variance approval by the appropriate department, or final public hearing approval, as the case may be; or within ninety (90) days of the effective date of the new ordinance whichever is greater; time extensions for periods not to exceed ninety (90) days shall be granted by the zoning administrator for development permits that are included within the scope of the approved special permit, or variance for associated development permits that are actively within the review process; actively within the review process shall mean that the pending application has received comments from at least one of the building department disciplines and the applicant is in the process of making required changes to the pending application in order to satisfy such building department com ment(s); c) Within six f 6) years from the final public hearing approval by the City Commission for major use special permits, provided that time extensions (non -substantial modifications) are granted as provided for in Article 17; and d) For subsequent phases of an approved phased project (beyond phase I), within six (6) years from the issuance of a building permit for phase I of said approved phased project; and no more than subsequent six (6 ear •eriods between additional phases; subsequent six year periods shall be counted from the issuance of a building permit of each phase to the issuance of a building permit on the subsequent phase(s). No further extensions may be granted beyond these time periods and permissible extensions referenced above. In the event an appeal or challenge to a decision on a development permit or order is taken to the courts, the time limitations specified above shall commence from the date the final decision is rendered in court of competent jurisdiction or an appellate court, as applicable, on the development permit or order that is the subject of the appeal or challenge. 2105.5.4 Exemptions. Nothing in 2105.5 shall apply to: (i) an application, permit or development by a governmental agency for a G/I (Govemment and Institutional Use) project as those terms are defined by the Zoning Ordinance; (ii) a Development of Regional Impact authorized pursuant to Chapter 380.06. Florida Statutes, as amended, prior to the effective date of this amendment: or (iii) proposed amendments to Chapter 23, City Code, as amended, entitled "Historic Preservation," as the interim protection measures applicable to such proposed amendments are set forth in that chapter; or City of Miami Page 5 of 7 Printed On: 4/9/2007 Submitted into the public record f r ite ) s on 1/73 / I �• City Clerk File Number: 07-00199mu (iv) a Development authorized pursuant to the Florida Local Government Development Agreement Act, Section 163.3221, et. sec., Florida Statutes. 2105.5.5. Scope. A determination that a completed application as provided herein has been made prior to the notice of publication for the new land development regulations shall not limit the applicability of other ordinances, rules and regulations of the City of Miami, nor shall it entitle the applicant to any development resolution, permit, or other action by the city related thereto which is not expressly exempted or which is found to be not applicable pursuant to the provisions of this section. * * * Sec. 2107. Permits or certificates of use or occupancy granted in error do not authorize violation of ordinance; corrections required. A permit or certificate of use or occupancy, or other city approval subject to this section, issued in error shall not confer any rights to construction, useor occupancy, and upon a finding that a permit has been so issued, it shall be revoked, provided actual permitted construction has not commenced. No permit or certificate of use or occupancy, or other city approval subject to this sectionshall be deemed or construed to authorize violation 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 zoning administrator and/or building official from requiring thereafter correction of errors in such plans. Issuance of a certificate of use based upon application shall not prevent the zoning administrator from requiring correction of the application or of any violation of the use regulations of the district. * *„ Section 3. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed. Section 4. If any section, part of section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 5. This Ordinance shall become effective ten (10) days after approval at second reading, unless vetoed by the Mayor within ten days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission. APPROVED AS TO FROM AND CORRECTNESS: City of Miami Page 6 of 7 Printed On: 4/9/2007 Submitted into the publj record for item�(s� on City Clerk File Number. 07-00199mu JORGE L. FERNANDEZ CITY ATTORNEY ..Footnote {1} Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. City of Miami Page 7 of 7 Printed On: 4/9/2007 Daytona Leisure Corp. v. City of Daytona Beach, 539 So.2d 597 (1989) 14 Fla. L. Weekly 647 KeyCite Yellow Flag - Negative Treatment Distinguished by M & A Management Corp. v. City of Melbourne, Fla., Fla.App. 5 Dist., March 31, 1995 539 So.2d 597 District Court of Appeal of Florida, Fifth District. DAYTONA LEISURE CORP., Appellant, v. The CITY OF DAYTONA BEACH, Florida, Appellee. No. 89-378. March 10, 1.989. Synopsis Property owner filed complaint for temporary and permanent injunction to prevent city from enforcing emergency zoning ordinance. The Circuit Court, Volusia County, James T. Nelson, J., denied relief. Property owner appealed. The District Court of Appeal, Cobb, J., held that ordinance, which substantially changed permitted use of property by prohibiting sale or dispensing of alcoholic beverages for consumption on the property, was invalid. Reversed and remanded. Attorneys and Law Firms *598 C. Allen Watts and Robert A. Merrell, III, Daytona Beach, for appellant. Frank B. Gummey, III, Daytona Beach, for appellee. Opinion COBB, Judge. The appellant, Daytona Leisure Corporation, seeks expedited appellate relief from the denial by the circuit court of its application for injunctive relief against the City of Daytona Beach from enforcement of an emergency zoning ordinance. Daytona Leisure planned to open an entertainment facility on a parcel of property located at the corner of Grandview and Glenview Avenue in Daytona Beach, Florida. A contract to purchase this Submitted into the publ rr record fite s) •G • l9 on `-jit6 City Clerk property was executed on December 27, 1988, and was conditioned upon the zoning being proper to permit the serving of alcoholic beverages on the premises. The total purchase price was $375,000.00. In order to be sure that the current zoning would support the intended use, agents of Daytona Leisure contacted a city zoning official at the building department who gave assurances that the property in question was within the proper zoning. Prior to closing on February 2, 1989, Daytona Leisure received written verification on a liquor license application from the City's zoning officer (one Paul McKitrick) on January 27, 1989, that the property in question did comply with zoning requirements for the sale of alcoholic beverages. Altogether the various work contracted for, and the commitments undertaken, represented a gross investment by Daytona Leisure of some $800,000.00. This amount is not controverted by the City. On January 12, 1989, Daytona Leisure submitted a building permit application to remodel a building located on the property. Three days later, it applied for a re -roofing permit which was granted by the City. On approximately January 20, 1989, an official of the City advised Daytona Leisure that an additional permit was needed in order to repair structural portions of the building. Because of this, the City halted construction on the property at that time. On January 27, 1989, Daytona Leisure received comments from the City in response to the January 12th application. The last paragraph stated that after revised plans were submitted to show corrections, a building permit "may be obtained." Daytona Leisure has subsequently submitted a revised application to the City with the requested corrections. On January 30, 1989 Daytona Leisure submitted a plan for the repair of the roof structure and was issued a separate building permit for that purpose. On February 2, 1989, Daytona Leisure closed on the property. On February 8, 1989, the City passed "Emergency Ordinance" 89-31, which created a new zoning provision numbered 1.8.' At the time the ordinance was passed, the only pending application for a building permit before the *599 City was the application of Daytona Leisure. While a planning board had been discussing the possibility of such an ordinance since November of 1988, Daytona Leisure was not given any notice of the emergency ordinance nor any opportunity to make comments. Daytona Leisure filed a complaint for a temporary and permanent injunction to prevent the City from applying WESTLAIN © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Daytona Leisure Corp. v. City of Daytona Beach, 539 So.2d 597 (1989) Submitted into the public record fqr�i� npl(� �E ,'q on / / City Clerk 14 Fla. L. Weekly 647 Ordinance 89-31 to its property. A final hearing was held on February 17, 1989, and the Circuit Court entered a final judgment denying Daytona Leisure's request for injunctive relief. That judgment has been appealed and afforded expeditious consideration. Daytona Leisure contends that the emergency ordinance is legally defective and void because it is a zoning ordinance, and, as such, was enacted without providing notice and an opportunity to be heard as required under section 166.041(3Xc), Florida Statutes (1987).2 It also contends that equitable estoppel should apply against the City. The City, on the other hand, argues that Daytona Leisure did not rely in good faith upon any act or omission of the City in either purchasing the property or contracting improvements or licenses for it; that Daytona Leisure was on at least constructive notice of a pending zoning amendment prior to incurring its financial commitments; and that Ordinance 89-31 was validly enacted as an emergency ordinance because it did not rezone Daytona Leisure's property or substantially change a permitted use category in the particular zone. We find the procedural issue dispositive of this appeal. In regard to that issue, the City is patently wrong. Ordinance 89-31 does substantially change the permitted use of Daytona Leisure's property: it prohibits the sale or dispensing of alcoholic beverages for consumption on the premises, which previously was permitted. It is sheer sophistry to say this is not a substantial change in a use previously permitted to the owner of property who is actively constructing an entertainment facility thereon to the tune of $800,000.00 or more. The City's reliance on section 166.041(3)(b), which authorizes the adoption of emergency ordinances, is misplaced; that statute expressly provides that "no emergency ordinance shall be enacted which enacts or amends a land use plan or which rezones private real property." See Baywood Construction, Inc. v. City of Cape Coral, 507 So.2d 768, 769 (Fla. 2d DCA), review denied, 513 So.2d 1060 (FIa.1987); City of Sanibel v. Buntrock, 409 So.2d 1073 (Fla. 2d DCA), review denied, 417 So.2d 328 (FIa.1982). Footnotes Florida follows the majority view whereby measures passed in contravention of notice requirements are invalid (null and void if not strictly enacted pursuant to the requirement of section 166.041). Ellison v. City of Fort Lauderdale, 183 So.2d 193 (F1a.1966); Fountain v. City of Jacksonville, 447 So.2d 353 (Fla. 1st DCA 1984); City of Gainesville v. G.N. V. Investments, 413 So.2d 770 (Fla. 1st DCA 1982); Buntrock; Malley v. Clay County Zoning Commission, 225 So.2d 555 (Fla. 1st DCA 1969). Where an ordinance substantially affects land use (substantially changes permitted use categories) or rezones specific parcels of private real property, it must be enacted under the procedures that govern zoning and rezoning, i.e., section 166.041(3)(c). Baywood Construction. Given our determination of the procedural issue, we need not address the estoppel issue. We note, however, that prior to passage of the invalid emergency ordinance, substantial expenditures and obligations were incurred by Daytona Leisure. See Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (F1a.1976); Sakolsky v. City of Coral Gables, 151 So.2d 433 (F1a.1963); The Florida Companies v. Orange County, Florida, 411 So.2d 1008, 1010 (Fla. 5th DCA 1982); Town of Largo *600 v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975). Accordingly, we reverse the trial court's final judgment and remand with directions to the trial court to issue the injunction. No motion for rehearing will be entertained and the mandate shall issue forthwith. DANIEL and GOSHORN, JJ., concur. All Citations 539 So.2d 597, 14 Fla. L. Weekly 647 1 1.8 Restaurants and Cocktail Lounges All businesses including restaurants and cocktail lounges which sell and dispense alcoholic beverages for consumption by patrons on the premises from which they are sold or dispensed are prohibited within 200 feet of any property that is zoned residential except such property which is zoned RP (Residential Professional District). The two hundred foot separation shall be measured from the nearest point of the property line of the business use to the nearest point of the property line of the residentially zoned property. 2 Under this section, ordinances which rezone specific parcels of private real property or which substantially change the permitted use categories in zoning districts must be enacted with specific procedures. Where the proposed rezoning or change in permitted use involves less than 5% of the total land area of the municipality, notice to affected property owners and one public hearing are required. In cases in which the proposed ordinance deals with more than 5% of the WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Submitted into the public record i gr�terp, 0 � E , 11 on / 6/ City Clerk Daytona Leisure Corp. v. City of Daytona Beach, 539 So.2d 597 (1989) 14 Fla. L. Weekly 647 total land area of the municipality, stricter procedures must be followed. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAVV © 2018 Thomson Reuters. No clairn to original U.S. Government Works. 3 City of Gainesville v. GNV Investments, Inc., 413 So.2d 770 (1982) Submitted into the public record/ ejZ 6 ��) . `�� . `Q l on gCity Clerk 413 So.2d 77o District Court of Appeal of Florida, First District. CITY OF GAINESVILLE, Appellant, v. GNV INVESTMENTS, INC., a Florida corporation, and Wayne Fann and Charles Powers d/b/a Sun Skate Center, Appellees. No. AC-88. March 1.5, 1982. Synopsis Property owners brought action challenging city plan board's denial of a site plan petition to construct a skate center. The Circuit Court, Alachua County, Theron A. Yawn, Jr., J., entered judgment for property owners, and city appealed. The District Court of Appeal, Mills, J., held that: (1) where property owner's site plan petition to construct a skate center on property zoned "shopping center" met all technical requirements of city's ordinances regarding site plan approval, city plan board's denial of the petition for site plan approval was unlawful and arbitrary, and (2) city commission's declaration of moratorium on any development of lands zoned "shopping center" until a rewrite of city zoning ordinances could be accomplished, as well as city's subsequent zoning resolution adopting a more restrictive zoning ordinance for property owner's land, were invalid and ineffective regarding property owner's proposed development, since city failed to comply with statutory notice requirements regarding zoning ordinances. Affirmed. West Headnotes (3) !'I Zoning and Planning -Other particular considerations Where property owner's site plan petition to construct a skate center on property zoned "shopping center" met all technical requirements of city's ordinances regarding site plan approval, city plan board's denial of the petition i2J for site plan approval was unlawful and arbitrary. 1 Cases that cite this headnote Zoning and Planning Sufficiency of notice or publication City commission's declaration of moratorium on any development of lands zoned "shopping center" until a rewrite of city zoning ordinances could be accomplished, as well as city's subsequent zoning resolution adopting a more restrictive zoning ordinance for property owner's land, were invalid and ineffective regarding property owner's proposed development, since city failed to comply with statutory notice requirements regarding zoning ordinances. West's F.S.A. § 166.041(3)(c). 4 Cases that cite this headnote Frauds, Statute Of *C -Persons to Whom Statute Is Available In action challenging city plan board's denial of site plan petition, city, which was not a party to contract between plaintiffs, could not raise any issue regarding the applicability of the statute of frauds to those contracts. 1 Cases that cite this headnote Attorneys and Law Firms *770 David LaCroix of Sieg, Comfort, Hawk, LaCroix & Reid, P. A., and J. T. Frankenberger, Gainesville, for appellant. William N. Long of Scruggs & Carmichael and Leonard E. Ireland, Jr. of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 City of Gainesville v. GNV Investments, Inc., 413 So.2d 770 (1982) Opinion MILLS, Judge. Submitted into the public record ifpteln�s) �Crr , 11 on /� 7,4 / . City Clerk The City of Gainesville (City) appeals the trial court's order finding that the City's Plan Board unlawfully and arbitrarily denied approval of appellees' site plan petition to construct a skate center on real property located within the City and holding that the City is estopped from enforcing a new, more restrictive zoning ordinance on appellees' *771 real property. The order also ordered the City to issue a building permit for construction of the proposed skating center. We affirm. I'I On 29 April 1980, appellee, Sun Skate Center, contracted to purchase real property from appellee, GNV Investment. The parcel was zoned "shopping center" which permitted use of the land as a skate center. Sun Skate Center prepared a site plan petition and submitted it to the City Plan Board. The plan met all "technical requirements" of the City's ordinances, regarding site plan approval. Under the City's ordinances, the Plan Board is delegated the authority to approve or deny site plans. The site plan merely regulates the layout of a piece of property, the design of the buildings, and the actual locations of the buildings on the site. The City's zoning ordinances control the uses to which a particular piece of property may be put. The Plan Board, therefore, is not to be concerned with a particular use of a piece of property as long as it fits within the permitted uses of the City's zoning ordinances. The record amply supports the trial judge's finding that the Plan Board unlawfully and arbitrarily denied Sun Skate Center's petition for site plan approval. The Plan Board members voted to deny the petition because of the parcel's intended use as a skate center, not because it failed to comply with the appropriate criteria for site plan approval. 121 During the site plan approval process, on 7 July 1980, the City Commission, without notice, declared a moratorium on any development of lands zoned "shopping center" until a rewrite of the City zoning ordinances could be accomplished. The City Commission's minutes reveal that the Commission was specifically apprised of the proposed skating center on appellees' land zoned "shopping center" prior to declaring the moratorium, and that the moratorium was an attempt to stop this development. The zoning rewrite was to contain a new zoning classification, "neighborhood shopping center," which prohibited use as a skating center. The moratorium was also passed with the understanding that any shopping center parcel not neighborhood oriented could be brought to the Commission for review and referral to the Plan Board for special exception. On 9 JuIy 1980, the Commission passed a resolution reaffirming and ratifying its earlier moratorium. The City's new zoning ordinance was enacted on 24 November 1980. On 12 January 1981, appellees' property was rezoned to "neighborhood shopping center" which precluded use as a skating center, and the moratorium was lifted on shopping center development. Appellees' same site plan, previously denied on 8 July 1980, was approved on 10 February 1981, although appellee could no longer construct a skating center under the new zoning classification. We hold the moratorium and resolution, passed without notice, were an ineffective attempt to suspend and amend the City of Gainesville's existing zoning ordinances. We find the City's argument that it has the power, under its general home rule powers, to suspend zoning ordinances by resolution without notice to be without merit. Each case cited by the City in support of that proposition dealt with a situation where a municipality passed an interim zoning ordinance rather than resolution. In City of Miami Beach v. State, 108 So.2d 614 (Fla. 3d DCA 1959), the court held that the authority to materially limit the use of property ought not to be inferred under a general grant of authority found in the City's charter, especially when there was a specific grant of authority from the legislature concerning zoning which contained limitations on that power such as notice, public hearings, etc. The court went on to say that these limitations were designed to protect the public from hasty or ill-advised use of that authority. In this case, the City of Gainesville has a specific grant of power concerning zoning, Section 166.041(3)(c), Florida Statutes (1979), which contains specific limitations (notice, opportunity to be heard, etc.) on the use of that power. The attempted moratorium was, therefore, invalid and ineffective regarding appellees' proposed development since the City failed *772 to comply with the specific notice requirements regarding zoning ordinances. City of Miami Beach v. State, supra; Gulf and Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (F1a.1978); and generally Annot., 30 A.L.R.3d 1196 (1970). 131 The remaining issues raised by the City are without merit. Since the City was not a party to the contracts between appellees, it may not raise any issue regarding the applicability of the statute of frauds to these contracts. Commercial Union Insurance Co. v. Padrick Chevrolet, 196 So.2d 235 (Fla. 4th DCA 1967). WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Submitted into the public record fof ite (s) CE. 1C( on `i/ Z6 JIL. City Clerk City of Gainesville v. GNV Investments, Inc., 413 So.2d 770 (1982) All Citations Accordingly, the order of the trial court is affirmed. 413 So.2d 770 WENTWORTH and THOMPSON, JJ., concur. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAVV © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 City of Sanibel v. Buntrock, 409 So.2d 1073 (1981) Submitted into the public n record fo ite (s) 9 E .' 1 on 177_ 1 / ) % . City Clerk 409 So.2d 1073 District Court of Appeal of Florida, Second District. The CITY OF SANIBEL, Florida, and Anne Winterbotham, Joseph Searing, Arthur Wykoff, Donald Manchester, William Hagerup, Larry E. Simon, as successor to Judy Workman, and Louise Johnson, constituting the Planning Commission of the City of Sanibel, Florida, and Bernard J. Murphy, Jr., City Manager, Appellants, v. Robert F. BUNTROCK and Charles R. Blakely, Jr., and Joyce Blakely, Husband and Wife, Appellees. No. 81-499. 1 Dec. 30, 1981. 1 Rehearing Denied Feb. 8,1982. Synopsis Developer brought action challenging ordinance declaring building moratorium. The Circuit Court, Lee County, R. Wallace Pack, J., declared ordinance invalid and directed city to process developer's application, and city appealed. The District Court of Appeal held that municipality was required to enact ordinance declaring building moratorium with same formality required for ordinance which rezones property. Affirmed. West Headnotes (1) 11] Zoning and Planning Procedural Requirements Municipality must enact ordinance declaring building moratorium with same formality required for ordinance which rezones property. West's F.S.A. § 166.041(3)(c)1. 10 Cases that cite this headnote Attorneys and Law Firms *1074 Neal D. Bowen, Sanibel, for appellants. Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Cape Coral, for appellees. Opinion PER CURIAM. In this appeal we hold that a municipality must enact an ordinance declaring a building moratorium with the same formality required for an ordinance which rezones property. The City of Sanibel has adopted a comprehensive land use plan which includes all of the traditional aspects of municipal zoning. Appellees Charles and Joyce Blakely owned land within the city which has a permitted use of restricted commercial. They contracted to sell their property to appellee Robert S. Buntrock contingent upon his obtaining the appropriate permits for the development of an office complex. In the meantime, the city enacted an ordinance placing a one year moratorium on the issuance of permits and approvals for commercial development. Except for the moratorium, Buntrock was in a position to obtain the requisite permits for the proposed complex. When the city refused to issue him a permit, he filed suit attacking the validity of the moratorium ordinance. Ultimately the court declared the ordinance invalid and directed the city to process Buntrock's application. The basis for the court's ruling was that the city had not enacted the moratorium ordinance pursuant to the notice and hearing requirements of section 166.041(3)(c)1., Florida Statutes (1979),' that are applicable to ordinances "which rezone private real property."' The city concedes that it did not follow the procedure outlined in the statute but argues that it was unnecessary to do so because the moratorium ordinance did not constitute rezoning.' A number of jurisdictions have decided this issue. Some states have held that a moratorium on the issuance of building permits pending zoning or rezoning may be accomplished without following the formalities required when the actual zoning or rezoning takes place. CEEED v. California Coastal Zone Conservation Commission, 43 Cal.App.3d 306, 118 Cal.Rptr. 315 (1974); A. Copeland Enterprises, Inc. v. City of New Orleans, 372 So.2d 764 (La.App.1979); City of Dallas v. Crownrich, 506 S.W.2d WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Submitted into the public record fo ite (s G . \ { T on 1/ / 6 . City Clerk City of Sanibel v. Buntrock, 409 So.2d 1073 (1981) 654 (Tex.Civ.App.1974). Other courts, however, have struck down similar moratoria because they were not adopted with the same formality required of zoning or rezoning ordinances. State ex rel. Brodie v. Powers, 168 Conn. 147, 362 A.2d 884 (1975); *1075 Lancaster Development, Ltd. v. Village of River Forest, 84 Ill.App.2d 395, 228 N.E.2d 526 (1967); State ex rel. Kramer v. Schwartz, 336 Mo. 932, 82 S.W.2d 63 (1935); State ex rel. Christian, Spring, Sielbach & Associates v. Miller, 169 Mont. 242, 545 P.2d 660 (1976); State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777 (1941). No Florida court has precisely answered the question, but two decisions suggest an inclination toward the latter view. In City of Miami Beach v. State ex rel. Fontainebleau Hotel Corp., 108 So.2d 614 (Fla. 3d DCA), cert. denied, 111 So.2d 437 (F1a.1959), the city refused to issue a building permit for an addition to the Fontainebleau Hotel because of the enactment of an emergency amendment to the building code establishing certain height restrictions. The owners of the hotel contended that the ordinance was a zoning ordinance which the city could pass only after notice and a public hearing, neither of which had been accomplished with respect to the emergency amendment. The court agreed and declared the ordinance invalid for failure of the city to comply with the notice and hearing provisions of the zoning enabling act. In Ellison v. City of Fort Lauderdale, 183 So.2d 193 (F1a.1966), the city had enacted an ordinance without public notice or hearing which prohibited the keeping of horses on land zoned R-0. An owner of land within the zone who had been convicted of violating the ordinance attacked the validity of its enactment. The lower appellate court upheld the trial court's finding that the challenged ordinance was not a zoning ordinance but rather "an exercise of the City's general police power relating to health, morals and general welfare." Id. at 194. In reversing the conviction, the supreme court said: Footnotes Clearly the restriction imposed by the ordinance in question is a use regulation. It is true that zoning power is justified only as an exercise of the general police power but this will not permit a municipality to evade the protections thrown about the citizen's use of his property by the legislative limitations imposed on the zoning power by the device of labeling a zoning act a mere exercise of police power. Specific grants by the legislature always limit general grants. The specific grant of zoning power is conditioned by the provision for notice and public hearing. Since the City Commission did not comply with the notice and public hearing provisions, the ordinance under which the petitioner was arrested and convicted was invalid. 183 So.2d at 195. Neither of these cases involved building moratoria. Yet the implication is clear. If an ordinance substantially affects land use, it must be enacted under the procedures which govern zoning and rezoning. To entirely prohibit a person from building upon his property even temporarily is a substantial restriction upon land use. Consequently, it is not too much to ask that a municipality follow the same procedures with respect to notice and hearing before it puts such a moratorium into effect. AFFIRMED. SCHEB, C. J., and HOBSON and GRIMES, JJ., concur. All Citations 409 So.2d 1073 Section 166.041(3)(c)1. applies to ordinances affecting less than 5% of the total land area of a city which was the case here. 2 In adopting the ordinance in question, the city followed section 166.041(3)(a), Florida Statutes (1979), which prescribes the ordinary method for enacting ordinances. However, this section specifically excepts "rezoning" ordinances which must be enacted according to the procedure prescribed in section 166.041(3)(c). Section 166.041(3)(b) authorizes the adoption of emergency ordinances but stipulates that a municipality cannot use an emergency ordinance to amend a land use plan or rezone private real property. 3 At one point in its brief, Sanibel contends that because it accomplishes its land use control through the vehicle of a comprehensive land use plan adopted under the authority of the Local Government Comprehensive Planning Act of 1975, section 166.041(3)(c) has no continuing efficacy in the City of Sanibel. It points to section 163.3211, Florida WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Submitted into the public record for ite (s) . \A on `1 / 'L / 1 City Clerk City of Sanibel v. Buntrock, 409 So.2d 1073 (1981) Statutes (1979), which provides that if the Act is in conflict with other laws relating to local governments having authority to regulate the development of land, its provisions "shall govem unless the provisions of this act are met or exceeded by other provision or provisions of law relating to local govemment." Significantly, however, Sanibel overlooks the fact that the procedure to be followed in amending a land use plan involving less than 5% of the total land area is the same as that set forth in section 166.041(3)(c)1. for rezoning. ss 163.3187, . 3184(7)(b), FIa.Stat. (1979). End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3