HomeMy WebLinkAboutItem V(A) Approval of City Response to Orange County Verified Complaint - Asst City Atty John Horan 4
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AGENDA 2-02-93
Item V A
1 '
MEMORANDUM
TO: The Honorable Mayor and City Commissioners
of the City of Ocoee
FROM: John P. Horan, Esquire
DATE: January 29, 1993
RE: Verified Complaint Filed by Orange County with Respect to
Allegedly Unlawful Rezonings on Properties Annexed by the
City
Attached hereto is a copy of a proposed Response to the
Verified Complaint filed by Orange County with the City of Ocoee on
January 13, 1993 . I invite your attention to Paul Rosenthal's memo
to you of January 14, 1993, concerning this matter.
The City is required to serve a response to the County's
Verified Complaint within thirty (30) days after receipt thereof
(i.e. by February 12, 1993) . The attached proposed Response raises
certain procedural defenses and denies the substantive allegations
of the Verified Complaint.
As you know, Orange County also has filed a companion
proceeding challenging many of the City's annexations of the
properties which are the subjects of the rezonings challenged by
the Verified Complaint. Since these matters are in litigation, all
communications by City officials and staff concerning same should
be made through the City's legal representative. I advise you that
anything stated in the public record concerning these matters might
be used to compromise the City's position, so we caution City
officials and staff to be discrete and prudent when discussing
these matters on the record.
I will advise you further on this matter at the City
Commission Meeting on Tuesday, February 2, 1993, at 7: 30 p.m.
cc: Mr. Ellis Shapiro, City Manager w/enclosure
Mr. Bruce Behrens, Planning Director w/enclosure
Paul Bradshaw, Esquire w/enclosure
Paul E. Rosenthal, City Attorney w/enclosure
R. Duke Woodson, Assistant City Attorney w/enclosure
PROPOSED DRAFT FOR DISCUSSION PURPOSES ONLY
BEFORE THE CITY COUNCIL FOR THE
CITY OF OCOEE, FLORIDA
RE: UNLAWFUL REZONINGS APPROVED BY CITY OF OCOEE
FOR TERRITORIES ANNEXED BY CITY OF OCOEE
PURSUANT TO CITY OF OCOEE
ORDINANCE NOS. 92-32, 92-34, 92-36, 92-38,
92-42, 92-44, 92-46, 92-50, 92-54, 92-56,
92-60, 92-70, 92-72, 92-74, and 92-76
RESPONSE OF CITY OF OCOEE
Pursuant to Section 163 . 3215 (4) , Florida Statutes (1992) , the
CITY OF OCOEE, FLORIDA, a municipal corporation (the "City") ,
responds to the Complaint filed by ORANGE COUNTY, FLORIDA, a
Charter County and a political subdivision of the State of Florida
(the "County") , and states:
1. The County has failed to comply with Section 163 . 3215 (4) ,
Florida Statutes (1992) , by failing to file a Verified Complaint
with the local government within 30 days after the alleged
inconsistent action has been taken. The County has filed an
Unverified Complaint which has not been signed by the appropriate
officer through which the County is required to take action.
Accordingly, the purported Verified Complaint is defective on its
face and a nullity. It should be stricken and a Court should
dismiss and strike any subsequent court action for failure to
comply with the required statutory condition precedent.
2. Alternatively, and without waiving the grounds raised
above and without acknowledging the purported "Verified" Complaint
(and the unsigned purported Amended "Verified" Complaint previously
provided to counsel for the City) , the City denies the substantive
allegations of the Complaint and affirmatively asserts that all
actions taken by the City have been in accordance with Florida Law.
I HEREBY CERTIFY that a true and correct copy of the foregoing
has been furnished by Hand Delivery to LINDA W. CHAPIN, Orange
County Chairman, 201 South Rosalind Avenue, Orlando, Florida 32801;
THOMAS J. WILKES, County Attorney, A. BRYANT APPLEGATE, Assistant
County Attorney, JOEL D. PRINSELL, Assistant County Attorney, and
ALLISON M. YURKO, Assistant County Attorney, 201 South Rosalind
Avenue, Orlando, Florida 32801; this day of February, 1993 .
JOHN P. HORAN
Florida Bar No. 229830
Foley & Lardner
111 North Orange Avenue
Suite 1800
Post office Box 2193
Orlando, Florida 32802
Telephone: 407/423-7656
Attorneys for City of Ocoee
Horan/Response/db
AGENDA 1-19-93
Item VI C
FOLEY & LARDNER
III NORTH ORANGE AVENUE,SUITE 1800
POST OFFICE BOX 2193
ORLANDO. FLORIDA 32802-2193
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MILWAUKEE, WISCONSIN _ PARIS, FRANCE
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WASHINGTON, D.C. DRESDEN, GERMANY
ALEXANDRIA. VIRGINIA SINGAPORE
ANNAPOLIS, MARYLAND MEMORANDUM TAIPEI, TAIWAN
TO: The Honorable Mayor and City Commissioners
of the City of Ocoee
r
FROM: Paul E. Rosenthal, Esq. , City Attorneye-21L.
DATE: January 14, 1993
RE: Verified Complaint filed by Orange County with Respect to
Allegedly Unlawful Rezonincgs on Properties Annexed by the
City
Attached hereto is a copy of the Verified Complaint served by
Orange County on the City of Ocoee on January 13 , 1993 . The
Complaint has been served pursuant to the provisions of Section
163 . 3215, Florida Statutes (copy attached) and requests that the
City void certain zoning decisions for the reasons set forth
therein.
This is the first instance in which a Complaint has been filed
with the City under the provisions of the Local Government
Comprehensive Planning & Land Development Regulation Act. The
filing of the Complaint is a condition precedent to the institution
by the County of an action for injunctive or other relief to
prevent the City from taking action pursuant to the zoning
ordinances which are the subject of the Complaint.
The City is required to respond to the Complaint within thirty
(30) days after receipt (i.e. , by February 12 , 1993) . After
receipt of a response from the City, the County may then institute
legal proceedings against the City. However, any such proceeding
must be instituted no later than thirty (30) days after the
expiration of the thirty (30) day period within which the City may
act in response to the Complaint (i.e. , by March 15, 1993) .
The County alleges the following with respect to the zoning
decisions which are the subject of the Complaint:
(1) The annexed territories are not subject to the
jurisdiction of the City for the purposes of Chapter 163 ,
T O }
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Florida Statutes and, as a result, the City lacks
authority to adopt the rezoning ordinances with respect
to such annexed territories.
(2) The zoning classifications established by the. City for
the annexed territories materially alter the use, density
and intensity of use thereof in a manner which conflicts
with the County Comprehensive Plan.
The County has not filed documentation, legal memoranda or other
data in support of these allegations. We have requested that the
County Attorney advise us where he intends to submit such
documentation for consideration by the City.
We are in the process of reviewing and analyzing the Complaint
filed by Orange County. John Horan, a litigation partner in my
firm, will be the lead attorney in connection with this matter. We
will also be assisted by Paul Bradshaw in our Tallahassee office.
As we have previously advised you, it is our opinion that the
City has complied with all of the requirements of Chapters 163 , 166
and 171, Florida Statutes. We have further advised you that, in
our opinion, upon annexation of lands they become subject to the
jurisdiction of the City and the Ocoee Comprehensive Plan and, as
a result, inconsistency with the Orange County Comprehensive Plan
is not a legal impediment to the adoption of zoning ordinances
which are consistent with the Ocoee Comprehensive Plan.
The purpose of the procedure established by Section 163 . 3215,
Florida Statutes, is to attempt to resolve differences prior to the
filing of litigation. It is my recommendation that discussion and
possible action on the issues raised by the Complaint be added to
the agenda for the Special Session Joint Meeting with the County
Commission scheduled for January 25, 1993 . Based upon direction
from the City Commission, a response to the Complaint would be
prepared for consideration by the City Commission at its meeting of
February 2 , 1993 .
enclosures
cc: Mr. Ellis Shapiro, City Manager (w/encl)
Mr. Bruce Behrens, Planning Director (w/encl)
Ms. Montye Beamer, Adminstrative Services Director (w/encl)
Paul Bradshaw, Esquire (w/encl)
John P. Horan, Esquire (w/encl)
C:\WPSI\DOCS\OCOE\MEMOS\COMMIS.MEM 11/14/93 1 GINNYE1 PER:ge
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s.
BEFORE THE CITY COUNCIL FOR THE
CITY OF OCOEE, FLORIDA
RE: UNLAWFUL REZONINGS APPROVED BY CITY OF OCOEE
FOR TERRITORIES ANNEXED BY CITY OF OCOEE
PURSUANT TO CITY OF OCOEE
ORDINANCE NOS. 92-32, 92-34 , 92-36,
92-38, 92-42, 92-44, 92-46, 92-50,
92-54, 92-56, 92-60, 92-70, 92-72,
92-74 , and 92-76.
VERIFIED COMPLAINT
Pursuant to Section 163 .3215, Florida Statutes, ORANGE
COUNTY, FLORIDA, a Charter County and a political subdivision
of the State of Florida (the "County") , by and through the
undersigned, hereby files this verified Complaint with the CITY
OF OCOEE, FLORIDA, a municipal corporation (the "City") , and
alleges as follows:
1. The original of this Verified Complaint is filed with
the Mayor of the City Council of the City, the Honorable S.
Scott Vandergrift, and a copy is filed with the City Clerk.
2. For purposes of this case, the City is the "local
government" within the meaning of Section 163.3215(1) , Florida
Statutes.
3 . For purposes of this case, the County is the local
government with the "comprehensive plan, " within the meaning of
Section 163 .3215(1) , Florida Statutes .
4 . The County' s comprehensive plan is commonly known as
the 1990-2010 Orange County Comprehensive Plan. It`>was. saopted
•'jzbr17 • .+.
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by Orange County Ordinance No. 91-16, and amended by Orange
County Ordinance No. 92-24 .
5. On December 14, 15, and 16, 1992, the City adopted
Ordinance Nos. 92-32, 92-34, 92-36, 92-38, 92-42, 92-44 , 92-46,
92-50, 92-54, 92-56, 92-60, 92-70, 92-72, and 92-74 , and on
January 5, 1993, the City adopted Ordinance No. 92-76 (the
"annexation ordinances") .
6 . The annexation ordinances annexed territories situated
within the unincorporated area of the County.
• 7. Upon adopting the annexation ordinances, the City also
adopted Ordinance Nos . 92-33 , 92-35, 92-37, 92-39, 92-43,
92-45, 92-47, 92-51, 92-55, 92-57, 92-61, 92-71, 92-73 , 92-75,
and 92-77 (the "rezoning ordinances") .
8 . The rezoning ordinances rezoned the territories
annexed by the annexation ordinances in the following manner:
(a) The territory annexed by the City pursuant to
Ordinance No. 92-32 was rezoned by the City by
Ordinance No. 92-33 from County A-1, Agricultural
District, and A-2, Agricultural District, to City
R-:.-A, Single-Family Residential District,
R-1-AA, Single-Family Residential District, R-3 ,
Multi-Family Residential District, and C-2,
Community Commercial District.
(b) The territory annexed by the City pursuant to
Ordinance No. 92-34 was rezoned by the City by
Ordinance No. 92-35 from County A-1 and . A-2 to
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01'13'93 15:50 $407 656 5725 CITY OF OCOEE yyy FOLEY & LARDNER Vb 004'008
City I-1, Light Industrial and Manufacturing
District .
(c) The territory annexed by the City pursuant to
Ordinance No. 92-36 was rezoned by the City by
Ordinance No. 92-37 from County A-1 and A-2 to
City R-1-AA.
(d) The territory annexed by the City pursuant to
Ordinance No. 92-38 was rezoned by the City by
Ordinance No. 92-39 from County A-1 and A-2 to '
City C-2 .
(e) The territory annexed by the City pursuant to
Ordinance No. 92-42 was rezoned by the City by
Ordinance No. 92-43 from County A-1 and M-1,
Light Manufacturing District, to City A-1,
General Agricultural District, and R-1-A.
(f) The territory annexed by the City pursuant to
Ordinance No. 92-44 was rezoned by the City by
Ordinance No. 92-45 from County A-1 to City R-1-A.
(g) The territory annexed by the City pursuant to
Ordinance No. 92-46 was rezoned by the City by
Ordinance No. 92-47 from County R-CE, Rural
Country Estate, to City R-1-A.
(h) The territory annexed by the City pursuant to
Ordinance No. 92-50 was rezoned by the City by
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Ordinance No. 92-51 from County1 0` t0 �T
pro. ?
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(i) The territory annexed by the City pur1$LA
Ordinance No. 92-54 was rezoned by theCi =i
Ordinance No. 92-55 from County A-1 to Ci Y
R-1-AA.
(j ) The territory annexed by the City pursuant to
Ordinance No. 92-56 was rezoned by the City by
Ordinance No. 92-57 from County A-1 to City A-1.
(k) The territory annexed by the City pursuant to
Ordinance No . 92-60 was rezoned by the City by
Ordinance No. 92-61 from County A- 1 to City
R-1-AA.
(1) The territory annexed by the City pursuant to
Ordinance No . 92-70 was rezoned by the City by
Ordinance No . 92-71 from County A-1 to City A•-1 .
(m) The territory annexed by the City pursuant to
Ordinance No . 92-72 was rezoned by the City by
Ordinance No . 92-73 from County A-1 to City A-1.
(n) The territory annexed by the City pursuant to
Ordinance No . 92-74 was rezoned by the City by
Ordinance No. 92-75 from County A-1 •'to Ci
aC•r *-s
(o) The territory °annexed by the City 1 1).,391%x= -�
. -'�%. n4.k rte{ ,�'.� • �) ) �1
�.� Ordi�an e a � ---
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9 . A decision by a local government to rezone prOpOltyM- WFe
is a "development order, " within the meaning of BsotiOos .� ,w
163 . 3215( 1) and 163 .3164 (6) and (7) , Florida Statutes .
10 . The annexed territories are not subject to ,the rr�
jurisdiction of the City for the purposes of the Local
Government Comprehensive Planning and Land Development
Regulation Act, Sections 163 . 3161 - 163 . 3243 , Florida Statutes .
11 . The unincorporated territory annexed by the City
pursuant to Ordinance Nos . 92-32 , 92-34 , 92-36, 92-38, 92. 40 ,
92-42, 92-44 , 92-46, 92-50 , 92-56 , and the northern half of the
unincorporated territory annexed pursuant to Ordinance No.
92-70, are designated on the future land use map of the
County' s comprehensive plan as "Rural/Agricultural. " The
Rural/Agricultural designation permits a maximum density of one
dwelling unit per ten acres .
12 . The unincorporated territory annexed by the City
pursuant to Ordinance Nos . 92-54 , 92-72, 92-74 , 92-76, and the
southern half of the unincorporated territory annexed pursuant
to Ordinance No . 92-70, are designated on the future land use
map of the County' s comprehensive plan as "Rural Settlement. "
The Rural Settlement designation for this territory permits a
maximum density of one dwelling unit per acre.
13 . The unincorporated territory annexed by the City
pursuant to Ordinance No . 92-60 is designated An
a as&-'"Rural
land use map of the County' s comprehensive 1,18 _=.
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Settlement. " The Rural Settlement designation for this
territory permits a maximum density of one dwelling unit per
five acres.
14 . Even assuming (without conceding) that the City had
the authority to adopt the rezoning ordinances, the subject
rezonings by the City materially alter the use, density and
intensity of use of the annexed territories in a manner that
conflict with and are not consistent with the future land use
designations for those territories as set forth in the County' s
comprehensive plan.
15. Therefore, for purposes of this case, the County is an
"aggrieved or adversely affected party" within the meaning of
Section 163 .3215(2) , Florida Statutes .
16 . As a result of the foregoing unlawful rezonings, the
County requests that the City void the rezoning decisions .
EL-_, VI c4-004.-2 -
BRUCE McCLENDON, as Manager of the
Orange County Planning Department
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this
13th day of January, 1993, by BRUCE McCLENDON, who is
personally known to me and who did not t an oath.
P 11411 ted/Typed Name: . 4'otK z
N• ary Public/State of Florida
Commission r
Numbg •
NOTARY nem STATE Or R.ORidR AT LA:w
MY COMMISSION ORBS MAY Of, 1,N4
BONDED THRU NLICKLIBUIRY A AMOnAW
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. 01/13/93 15:52 12407 656 5725 CITY OF OCOEE ••• FOLEY & LARDNER Q008/008
•
ORANGE COUNTY ATTORNEY'S OFFICE
Orange County Administration Center
1 P.O. Box 1393
Orlando, Florida 32802-1393 -
Phone No. (407) 836-7320
Attorneys for ORANGE COUNT',
FLORIDA
P C6 �`
A. Bry t Appl •4 to
Assista County Attorney
Florida Bar No. 346926
PrattD.
. - nsell.. l1
Assistant County Attorney
Florida Bar No. 329101
ja41//711.
Alison M. Yurko
Assistant County Attorney
Florida Bar No. 0772186
JDP:sac2071
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