HomeMy WebLinkAboutItem #11 Silver Bend HOA Appeal- Motion to StaySHUFFIELDLOWMAN
AGENDA ITEM COVER SHEET
Meeting Date: May 7, 2013
Item #
Reviewed By:
Contact Name: Scott A. Cookson, Department Director:
City Attorney
Contact Number: 407 - 581 -9715 City Manager:
Subject: Silver Bend HOA Appeal — Motion to Stay
Background Summary:
The Silver Bend Homeowner's Association, Inc. (the "HOX) has filed an appeal with the Circuit
Court appealing the decision of the City Commission to uphold City Staff's approval of a site plan
for the proposed Dollar General store on the corner of Silver Star Road and Silver Bend Boulevard.
In connection with that appeal, the HOA has filed a Motion to Stay requesting that the City
Commission issue a stay upon the issuance of any permits for the development of the property.
Issue:
Should the City Commission issue a stay upon the issuance of any permits relating the
development of the property at the southwest corner of Silver Star Road and Silver Bend Boulevard
until the lawsuit against the City and the Developer is fully adjudicated?
Attachments:
Motion to Stay (HOA)
Response to Motion to Stay (Developer)
Financial Impact:
None
Type of Item:
El
El
El
El
JR
Public Hearing
Ordinance First Reading
Ordinance First Reading
Resolution
Commission Approval
Discussion & Direction
For Clerk's Dept Use
❑ Consent Agenda
❑ Public Hearing
10 Regular Agenda
❑ Original Document /Contract Attached for Execution by City Clerk
❑ Original Document /Contract Held by Department for Execution
Reviewed by City Attorney ❑ N/A
Reviewed by Finance Dept. ❑ N/A
Reviewed by ( ) ❑ N/A
® SHUFFIELDLONXIMAN
MEMORANDUM
CLIENT - MATTER NUMBER
06286 -0001
TO: The Honorable Mayor and City Commissioners
FROM: Scott Cookson, City Attorney
DATE: April 29, 2013
RE: Silver Bend/ Dollar General — Motion to Stay
Staff Report
ISSUE
Should the City Commission issue a stay upon the issuance of any permits relating the
development of the property at the southwest corner of Silver Star Road and Silver
Bend Boulevard until the lawsuit against the City and the Developer is fully adjudicated?
BACKGROUND/DISCUSSION
The Silver Bend Homeowner's Association, Inc. (the "HOX) has filed an appeal with the
Circuit Court appealing the decision of the City Commission to uphold City Staff's
approval of a site plan for the proposed Dollar General store on the corner of Silver Star
Road and Silver Bend Boulevard. In connection with that appeal, the HOA has filed a
Motion to Stay requesting that the City Commission issue a stay upon the issuance of
any permits relating to the development of the property.
Pursuant to the Rule 9.310 of the Rules of Appellate Procedure, the City Commission
has continuing jurisdiction and the discretion to grant, modify or deny such relief. In
addition, the City Commission may condition the stay on the posting of a good and
sufficient bond, other conditions, or both.
The HOA has requested that, due to limited funds, the City Commission issue the stay
without conditioning the same on the posting of a bond. The Developer is opposing the
issuance of the stay and has indicated that issuing the stay will cause the Developer to
suffer substantial financial and business harm including, but not limited to, delay
damages, lost profits, legal expenses, deprivation of property use, and additional
acquisition and carrying costs.
Pending the hearing on issuance of the stay, the Applicant has agreed not to seek
issuance of building permits on the property.
Both the HOA and the Developer are represented by competent counsel and both will
have an opportunity to argue their positions with respect to the motion to stay. The City
Commission has the final say with respect to the issuance of the stay and, if the stay is
granted, what bond amount or other conditions, if any, should be imposed in connection
with the issuance of the stay. In the event the City Commission decides not to issue the
stay, the Developer would then be free to pull building permits on the site.
POSSIBLE MOTIONS:
1. If, after hearing the arguments from both the HOA and the Developer regarding
the granting of the stay, the City Commission sides with the HOA, the City Commission
would also need to decide what, if any, bond amount or other conditions should be
imposed in connection with the stay. Proper motions in this regard could include:
Move that the City Commission grant the HOA's request for a stay pending full
adjudication of the lawsuit against the City and the Developer filed by the HOA
without imposing a bond or other conditions in connection with such stay.
Or,
Move that the City Commission grant the HOA's request for a stay pending full
adjudication of the lawsuit against the City and the Developer filed by the HOA
conditioned on the following conditions in connection with such stay: [state
conditions (i.e. the HOA posting a bond in the amount of $ on or before
_, 2013)].
2. If, after hearing the arguments from both the HOA and the Developer regarding
the granting of the stay, the City Commission sides with the Developer, a proper motion
would be:
Move that the City Commission deny the HOA's request for a stay pending full
adjudication of the lawsuit against the City and the Developer filed by the HOA.
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
SILVER BEND HOMEOWNERS
ASSOCIATION, INC., a Florida
nonprofit corporation, DAVID
BUTKOVICH, an individual, and
CYNTHIA K. SHEWAN, an individual.
RULE 9.030(C) AND 9.100(F)
PETITION FOR WRIT OF
CERTIORARI
Petitioners,
VS.
Case No.: 2013 -CA -3781
Writ No.: 2013 -WR -0026
CITY OF OCOEE,
a municipal corporation of the State
of Florida, and CONCEPT
DEVELOPMENT, LLC, a Florida
limited liability company.
Respondents.
MOTION TO STAY
Petitioner, THE SILVER BEND HOMEOWNERS ASSOCIATION, INC., a
Florida nonprofit corporation, in accordance with F1a.R.App.P. 9.310, hereby
requests that the Ocoee City Commission sitting as the lower tribunal in this
matter, issue a stay upon the issuance of any permits related to the Small Scale Site
Plan for Ocoee Commercial Retail Store until the pending Petition for Writ of
Certiorari is adjudicated by the Ninth Judicial Circuit Court and any appellate court
to which this matter may proceed. Petitioner requests that this stay be granted
without bond as the citizens involved in this matter are members of a non - for - profit
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organization which does not have unlimited funds; and further because the
certiorari review at issue does not pose a threat of financial damage to the
Respondents.
THIS PETITION RESPECTFULLY SUBMITTED, this day of
April, 2013.
Marc Consalo, Esquire
Florida Bar No.: 176168 for
Karen Z. Consalo, Esquire
Florida Bar No.: 0326770
THE CONSALO LAW FIRM, P.A.
836 North Highland Avenue
Orlando, Florida 32803
karengconsalolaw.com
est sicagconsalolaw.com
(407) 843 -2003
2
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served by
electronic mail and pursuant to the Court's CM/ECF System upon Scott
Vandergrift, Mayor of Ocoee, at svandergrift a,ci.ocoee.fl.us Scott Cookson, City
Attorney, at scookson a,ShuffieldLowman.com and Stephen McDonald,
smcdonald@shuffiellowman.com and to David Theriaque at
dat a,theriaquelaw.com S. Brent Spain at sbs @theriaquelaw.com and Timothy E.
Dennis
r at tim @theriaquelaw.com, Attorneys for the Concept Development, LLC ,
this )`,- day of April, 2013.
Marc Consalo, Esquire
Florida Bar No.: 176168
3
THERIAQUE & SPAIN
Attorneys at Law
433 North Magnolia Drive
Tallahassee, Florida 32308
Telephone: (850) 224 -7332
Facsimile: (850) 224 -7662
FACSIMILE TRANSMISSION COVER SHEET
TO: Karen Z. Consalo, Esquire (407) 648 -2027
Scott A. Cookson, Esquire (407) 581 -9801
J. Stephen McDonald, Esquire
FROM: David A. Theriaque, Esquire
DATE: April 23, 2013
NUMBER OF PAGES (including cover page): 8
MESSAGE:
"RESPONDENT CONCEPT DEVELOPMENT, LLC'S
RESPONSE TO PETITIONER SILVER BEND
HOMEOWNERS ASSOCIATION, INC.'S MOTION TO
STAY ", REGARDING SILVER BEND HOMEOWNERS
ASSOCIATION, INC., ET AL. V. CITY OF OCOEE, ET AL.,
ORANGE COUNTYCASENO. 2013 -CA- 3781 -0, WRITNO. 2013 -
WR -0026 A -O.
If you encounter any difficulty in receiving this transmission, please call (850) 224 -7332.
THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS ATTORNEY
PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE
INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS MESSAGE IS NOT
THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,
DISTRIBUTION, OR COPY OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF
YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
IMMEDIATELY BY TELEPHONE. THANK YOU.
BEFORE THE CITY COMMISSION OF THE CITY OF OCOEE
SILVER BEND HOMEOWNERS
ASSOCIATION, INC., a Florida non -profit
corporation, DAVID BUTKOVICH, an
individual, and CYNTHIA K. SHEWAN,
an individual,
Petitioners,
vs.
CITY OF OCOEE, a municipal corporation
of the State of Florida, and CONCEPT
DEVELOPMENT, LLC, a Florida
limited liability company,
Respondents.
Appeal of Small -Scale Site Plan
(Dollar General)
Case No. 2013 -CA -3781 -0
Writ No. 2013 -WR- 0026 -A -0
RESPONDENT CONCEPT DEVELOPMENT,
LLC'S RESPONSE TO PETITIONER SILVER BEND
HOMEOWNERS ASSOCIATION, INC'S MOTION TO STAY
Respondent CONCEPT DEVELOPMENT, LLC ( "Concept Development "), by and through
its undersigned counsel, pursuant to Florida Rule of Appellate Procedure 9.300(a), hereby files this
Response to the "Motion to Stay" served by Petitioner SILVER BEND HOMEOWNERS
ASSOCIATION, INC. ( "Association "), on April 2, 2013, and states as follows:
I.
INTRODUCTION
I . On February 5, 2013, the City Commission of the City of Ocoee ( "City Commission ")
held a two (2) hour, quasi-judicial public hearing and voted to uphold the City Staff s approval of
Concept Development's small -scale site plan for a proposed 12,480 square foot Dollar General retail
store to be located on Tract B of the Silver Bend subdivision in Ocoee ( "Site Plan Approval ")
2. On or about March 13, 2013, the Association and Petitioners David Butkovich and
Cynthia K. Shewan sued the City of Ocoee ( "City ") and Concept Development by filing a Petition
for Writ of Certiorari in Orange County Circuit Court to challenge the City Commission's Final
Order upholding the Site Plan Approval.'
On or about April 2, 2013, the Association filed its "Motion to Stay" with the City
Commission, summarily requesting that the City Commission stay the issuance ofall permits related
to the Site Plan Approval until the certiorari lawsuit against the City and Concept Development is
fully adjudicated. Notably, the Association's Motion to Stay provides no legal or factual basis for
the requested stay.
4. The City Commission should deny the Association's Motion to Stay because the
Association's Motion is legally deficient under Florida law.
II.
THE ASSOCIATION'S MOTION TO STAY IS LEGALLY DEFICIENT
5. Without providing any legal or factual basis, the Association's Motion to Stay
summarily requests that the City Commission stay the issuance of all permits related to the Site Plan
Approval until the conclusion of the certiorari lawsuit. The Association's Motion to Stay is deficient
as a matter of law and should be denied.
6. As a preliminary matter, it bears emphasizing that the Association is not entitled to
the issuance of a stay as a matter of right, nor is the City Commission in any way required by law
to grant the Association's legally deficient request. In fact, the Association's request for a stay in
this land use proceeding involving a small -scale site plan approval is atypical and highly unusual.
On or about March 15, 2013, the Association and Petitioners David Butkovich
and Cynthia K. Shewan filed a second lawsuit against the City, unnamed members of the City
Commission, Concept Development, and the property owners of Tract B. This second lawsuit
seeks, among other things, a declaratory judgment that the City Commission violated Florida's
Sunshine Law by allegedly having "off the record" discussions during its February 5 vote on the
Site Plan Approval and requests the imposition of monetary fines against the City Commission
for such alleged Sunshine Law violations.
74
Moreover, the City Commission's refusal to grant the Association's legally deficient request in no
way affects or alters the Association's right to pursue its legal remedies to contest the Site Plan
Approval. See, e.g., Philip J. Padovano, Florida Appellate Practice § 11 :1 (2013 ed.) (reiterating
that "[a] stay is not legally required in any case" and that a "petitioner should not move for a stay
simply because the remedy is available ").
7. Turning to the instant case, it is well settled that it is inappropriate to issue a stay
where the moving party has failed to establish a substantial likelihood of success on the merits and
the likelihood of harm in the absence of a stay. See Sunbeam Television Corp. v. Clear Channel
Metroplex, Inc., 2012 WL 4775001, * 1 (Fla. 3d DCA Oct. 9, 2012); Perez v. Perez, 769 So. 2d 389,
391 n.4 (Fla. 3d DCA 1999). Here, the Association's Motion to Stay fails to allege, let alone
establish, a substantial likelihood of success on the merits and the likelihood of any harm in the
absence of a stay. In fact, the Association's Motion is devoid of 9y such allegations and, thus, is
legally deficient as a matter of law. On this basis alone, the Association's Motion to Stay must be
denied.
8. Moreover, even assuming the Association's Motion to Stay was not legally deficient,
which it is, the record establishes that the Association cannot demonstrate a substantial likelihood
of success on the merits — which is a threshold legal requirement for the issuance of a stay. In
particular, the Association alleges in its certiorari lawsuit that: (1) the City Commission denied the
Association procedural due process; (2) the City Commission's decision upholding the Site Plan
Approval is not supported by competent substantial evidence; and (3) the City Commission departed
from the essential requirements of law by ignoring the City's Comprehensive Plan. Each of these
arguments is baseless.
9. With respect to the alleged due process violations, the Association and its counsel
raised no objections during the City Commission's February 5 quasi-judicial hearing, and, thus, such
issue has been waived as a matter of law for purposes of appellate review. See Clear Channel
Commc'ns, Inc. v. City of N. Bay Village, 911 So. 2d 188, 189 -90 (Fla. 3d DCA 2005) ( "Appellate
3
review is confined to ... issues that were preserved with a sufficiently specific objection below. ");
Allstate Ins. Co. v. Gillespie, 455 So. 2d 617, 620 (Fla. 2d DCA 1984) ( "Procedural irregularities
to which no objection is made are waived. "). Furthermore, it is indisputable that the City
Commission afforded the Association and its counsel a full and meaningful opportunity to be heard
during the two (2) hour, quasi-judicial hearing concerning the Site Plan Approval. Thus, the
Association has not demonstrated, and cannot demonstrate, a substantial likelihood of success on
its due process claims. See Jennings v. Dade Cnty., 589 So. 2d 1337, 1341 (Fla. 3d DCA 1991) ( "A
quasi-judicial hearing generally meets basic due process requirements if the parties are provided
notice of the hearing and an opportunity to be heard. ").
10. Similarly, the Association has not demonstrated, and cannot demonstrate, a
substantial likelihood of success on its claim that the City Commission's decision upholding the Site
Plan Approval is not supported by competent substantial evidence. Competent substantial evidence
is that which is "sufficiently relevant and material that a reasonable mind would accept it as adequate
to support the conclusion reached." De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). In the
instant case, the City Planner, the City's special traffic consultant, Concept Development's land use
planner, Concept Development's traffic engineer, and Concept Development's project engineer each
testified during the February 5 quasi-judicial hearing and offered expert testimony regarding the
compliance of the Site Plan Approval with the City's Land Development Code and the City's
Comprehensive Plan. As a matter of law, such expert testimony constitutes competent substantial
evidence supporting the City Commission's decision. See, e.g., City of Hialeah Gardens v. Miami -
Dade Charter Found., Inc., 857 So. 2d 202, 204 -05 (Fla. 3d DCA 2003) (concluding expert
testimony by city's professional staff, along with reports and diagrams, constituted competent
substantial evidence supporting city council's zoning decision).'
' In this regard, it bears emphasizing that the Circuit Court on certiorari review is
not allowed to reweigh the evidence, reevaluate the credibility of the evidence, substitute its
judgment for that of the City Commission, or consider any evidence contrary to the City
Commission's decision. See Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Commis, 794 So. 2d
4
11. Third, the Association has not demonstrated, and cannot demonstrate, a substantial
likelihood of success on its claim that the City Commission departed from the essential requirements
of law by allegedly ignoring the City's Comprehensive Plan in upholding the Site Plan Approval.
First, the Association's claim cannot be raised in a certiorari proceeding. See, e.g., Seminole Tribe
of Florida v. Hendry County, 106 So. 3d 19, 22 -23 (Fla. 2d DCA 2013) (reiterating that issues of
plan inconsistency are not appropriately brought in a petition for writ of certiorari). Further, even
if the Association could raise this issue in the certiorari lawsuit, which it cannot, the Association's
claim is without merit. For example, the City Planner testified during the February 5 quasi-judicial
hearing that the policies in the City's Comprehensive Plan "are all met on this site plan." (T. 59; see
also T. 78). Further, during the City Commission's deliberations, Commissioner Hood noted, "we
have to determine ... if anything in the Comprehensive Plan was deviated or left out," and Mayor
Vandergrift stated, "I don't think our staff has done anything wrong.... They've kind of done it to
the letter of the law.... He did it according to the [comprehensive] plan." (T. 120, 127, 131).
Thus, the record facially refutes the Association's contention that the City Commission ignored or
failed to consider the City's Comprehensive Plan in upholding the Site Plan Approval. Accordingly,
the Association has not demonstrated, and cannot demonstrate, a substantial likelihood of success
on any of the claims raised in its certiorari lawsuit — which is a threshold legal requirement for the
issuance of a stay. Thus, the Association's legally deficient request must be denied.
12. Lastly, as noted above, the Association has failed to allege, let alone demonstrate, any
likelihood of harm if a stay is not issued — which is another threshold legal requirement for the
issuance of a stay. By contrast, Concept Development will suffer substantial financial and business
harm if the Association's legally deficient request is granted, including, but not limited to, delay
damages, lost profits, legal expenses, deprivation of property use, and additional acquisition and
carrying costs. Accordingly, on this additional basis, the Association's legally deficient request must
be denied.
1270, 1276 (Fla. 2001).
5
III.
CONCLUSION
13. In sum, the Association's Motion to Stay is legally deficient and, thus, must be
denied. Moreover, even if the Association's Motion to Stay was not legally deficient, which it is,
the Association has not demonstrated, and cannot demonstrate, a substantial likelihood of success
on the merits of the certiorari lawsuit and a substantial likelihood of harm in the absence of a stay
— both of which are legally required, at a minimum, for the issuance of a stay. Accordingly, Concept
Development respectfully requests that the City Commission deny the Association's Motion to Stay
dated April 2, 2013.
RESPECTFULLY SUBMITTED on this 23 t9 day of April 2013.
DAVID A. THERIAQUF, ESQUIRE
Florida Bar No. 832332
S. BRENT SPAIN, ESQUIRE
Florida Bar. No. 320810
TIMOTHY E. DENNIS, ESQUIRE
Florida Bar No. 575410
THERIAQUE & SPAIN
433 North Magnolia Drive
Tallahassee, Florida 32308
Telephone: 850/224-7332
Facsimile: 850/224-7662
dat @theriaquelaw.com
sbs @theriaquelaw.com
tim@theriaquelaw.com
COUNSEL FOR RESPONDENT
CONCEPT DEVELOPMENT, LLC
0
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
Telefacsimile and Electronic Mail to:
Karen Z. Consalo, Esquire
THE CONSALO LAW FIRM, P.A.
836 North Highland Avenue
Orlando, Florida 32803
karen @consalolaw.com
jessica @consaloiaw.com
Scott A. Cookson, Esquire
J. Stephen McDonald, Esquire
SHUFFIELD, LOWMAN & WILSON, P.A.
1000 Legion Place, Suite 1700
Orlando, Florida 32802
litservice@shuffieldlowman.com
scookson @shuffieldlowman.com
smcdonald@shuffieldlowman.com
lmchristman@shuffieldlowman.com
cwinn@shuffieldlowman.com
on this 23' day of April 2013.
DAVID A. THERIAQ13E, ESQUIRE
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