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Home My WebLink About03-28-2008 Thomas B. Binford vs. City of Winter SpringsFtCEIVED fit,., � j n ?.^, 0 BROWN, GARGANESE, WEISS & UAGREST4�-�FA� E TY CLERK Debra S. Babb-Nutcher" Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta" Anthony A. Garganese" J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer "Board Certified City, County & Local Government Law 'Board Certified Appellate Practice Attorneys at Law Offices in Orlando, Kissimmee, Cocoa, Ft. Lauderdale & Tampa March 28, 2008 Andrea Lorenzo-Luaces, City Clerk City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Re: Thomas B. Binford vs. City of Winter Springs Dear Andrea: Tara L. Barrett Vivian P. Cocotas Scott J. Dornstein Robin Gibson Drage Mitchell B. Haller Katherine W. Latorre Terri E. Oster Amy J. Pitsch Erin J. O'Leary' Catherine D. Reischmann" William E. Reischmann, Jr. Of Counsel Please find enclosed for your records, the Order Granting Final Summary Judgment on First Amendment and Final Judgment. Should you have any questions, please do not hesitate to me. Very ruly yours, Jennette Farris Assistant to Anthony A. Garganese /jf Enclosure 225 East Robinson Street, Suite 660 • P.O. Box 2873 -Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 - Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net - Email: firm@orlandolaw.net IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY CASE NO: 05-CA-367-16-W THOMAS A. BINFORD, Plaintiff, vs CITY OF WINTER SPRINGS, a Florida municipality Defendant. ORDER GRANTING FINAL SUMMARY JUDGMENT ON FIRST AMENDMENT AND FINAL JUDGMENT On February 28, 2008, this matter came on for hearing before this Court on remand from the Fifth District Court of Appeal for this Court to consider Plaintiffs argument in Paragraph 7 of his previously filed Affidavit in opposition to the City's previously filed and heard Motion for Summary Judgment on the First Amendment issues. The Court having reviewed the Plaintiffs Affidavit and the City's Response, and having heard arguments of Plaintiff and counsel for the City, the Court makes the following FINDINGS: 1. Based on a plain reading of the written opinions from the Fifth District Court of Appeal in this case, including the decision regarding the City's Motion for Rehearing or for Clarification, this Court's task on remand was to consider whether Ordinance 2006-18, which substantially amended the City's sign regulations, was properly advertised and enacted by the City. It is evident from the direction from the Fifth District Court of Appeal that the limited issue on remand was whether the -ordinance was properly enacted. 2. Ordinance 2006-18 was advertised and adopted pursuant to section Page 1 _ of 5 166.041(3)(a), Florida Statutes. The issue is whether the ordinance should have been adopted pursuant to the more stringent advertising requirements of section 166.041(3)(c), Florida Statutes instead. If section 166.041(3)(c) applies, the City was required to hold two advertised public hearings on the proposed ordinance before the city commission, and to publish a display ad before each hearing in a newspaper of general circulation. See §166.041(3)(c)2, Fla. Stat. The City did not do so. 3. According to a plain reading of section 166.041(3)(c), the more stringent advertising requirements are triggered only if: 1) the ordinance changes the actual list of permitted, conditional, or prohibited uses within a zoning category, or 2) the ordinance changes the actual zoning map designation of a parcel or parcels of land. No one has argued that Ordinance 2006-18 changes the actual zoning map designation of a parcel of land and it is evident the ordinance does not change the actual zoning map designation of a parcel of land. 4. Plaintiff argued atthe hearing that Ordinance 2006-18 changes the actual list of permitted, conditional, or prohibited uses within a zoning category; however, Plaintiff could not extemporaneously identify any zoning category in the City of Winter Springs where signs are actually listed as permitted, conditional, or prohibited uses within a zoning category, nor could Plaintiff identify any use that was once permitted, conditional, or prohibited before adoption of Ordinance 2006-18 that was somehow changed by Ordinance 2006-18. Winter Springs has clearly defined zoning categories and, within those zoning categories, particular uses are listed as permitted, conditional, or prohibited. Plaintiff did not dispute this. The ordinance changes permitting requirements, construction standards, and design criteria related to signs. Page 2 of 5 5. The Court rejects any suggestion that an ordinance that could possibly affect one's use and enjoyment of land necessarily falls under the criteria of section 166.041(3)(c), Florida Statutes. 6. Plaintiff urged this court to rely on case law he submitted at the hearing discussing section 166.041(3)(c), Florida Statutes before it was amended in 1995. Prior to 1995, section 166.041(3)(c) set forth a different standard to trigger the more stringent ordinance advertising requirements. The more stringent advertising applied to ordinances "which substantially change permitted use categories in zoning districts." As a result of this previous language, numerous cases, some cited by Plaintiff, found that ordinances were void ab initio because they somehow affected the use of land. The previous version of subsection (c) caused confusion as to which enactment procedure applied, inconsistency in court decisions, and a burden on local governments. As noted in the legislative staff comments: Depending on the type of ordinance, however, there are many statutes dictating very different procedures that must be adhered to by local governments. One consequence of this significant variety in procedures, found in various parts of the Florida Statutes, for the enactment of different kinds of ordinances is a certain amount of confusion by local governing body officials. This confusion sometimes results in the use of enactment procedures that are incorrect or should not have been used in a given instance. The problem is particularly severe in the land use area. Statutory provisions require that more stringent or extensive notice be afforded to the public where the object of the ordinance is the rezoning of land. A series of court cases and statutory amendments have expanded the applicability of the rezoning ordinance enactment procedures to nearly all ordinances that somehow affect the use of land. Coupled with a long standing judicial doctrine that all ordinances that have been enacted improperly are null and void or are of no effect, a lot of litigation concerns the validity of ordinances based entirely on the enactment procedure. The courts have declared may ordinances null and void although they were in effect for years before their enactment procedures were challenged. This bill is designed to alleviate these problems. Page 3 of 5 Final Bill Analysis & Economic Impact Statement, House of Representatives Committee on Community Affairs (1 sT ENG/HB 2055), May 16, 1995, pages 10, 11. The bill analysis further states that one of the primary objectives of the bill was to increase "precision and clarity" for the adoption of ordinances "by the same general notice procedures except for ordinances that change the actual zoning designation of a parcel or property or change the actual list of permitted or conditional or prohibited uses within a zoning category." Id. at 11. 7. This Court agrees with the City that the 1995 change in the statute made the standard clearer and more precise and that cases referencing or interpreting the previous version of section 166.041(3)(c) are not relevant in this case as they do not reference.or interpret the standard currently set forth in the statute. 8. The Court finds that Ordinance 2006-16 does not change the actual list of permitted, conditional, or prohibited uses within a zoning category in Winter Springs. Therefore, the City properly advertised and enacted Ordinance2006-18. If the ordinance affects a zoning category as set forth in section 166.041(3)(c), Florida Statutes, that determination must come from the appellate court. Therefore, it is ORDERED AND ADJUDGED: 9. The Order Granting Final Summary Judgment on FirstAmendment, Denying Motion for Rehearing, and Final Judgment previously granted on December 15, 2006 remains valid and is re -affirmed. 10. The Court enters final judgment in favor of the City. Plaintiff shall take nothing in this action and the City shall go hence without day. 11. The Court reserves jurisdiction to award the City its costs upon proper Page 4 of 5 application. ORDERED at Sanford, Seminole County, Florida this ? of March, 2008. Isl ALAN A. DICnY HONORABLE ALAN A. DICKEY CIRCUIT JUDGE copies: Anthony A. Garganese, City Attorney Debra S. Babb-Nutcher, Esq. Thomas A. Binford, Pro Se Page 5 of 5