Florida/Georgia Personal Injury & Workers Compensation

...wers otherwise conferred: (1) To construct, acquire, establish, improve, extend, enlarge, reconstruct, equip, *210 maintain, repair, and operate any project as defined in s. 125.011, either within or without the territorial boundaries of the county. 125.66 Ordinances; enactment procedure; emergency ordinances; rezoning ordinances or resolutions....

...In so doing it has acted properly and within the scope of its authority as set forth by decisions of this Court. The trial court was correct in holding that the action of the Appellee Board of County Commissioners in declaring an emergency and using the emergency enactment procedure contained in Section 125.66(3), Florida Statutes (Supp....

...er service being provided the citizens of west Pasco County. In response to the emergency which it perceived to exist, the Board of County Commissioners duly enacted the ordinance on November 1, 1977, pursuant to the emergency procedure contained in Section 125.66(3), Florida Statutes (Supp....

...a guarantee that the County Commission would not change the law in the future. See Barefield v. Davis, 251 So.2d 699, 701 (Fla. 1st DCA 1971). Appellants argue that the ordinance was either a zoning law or a land-use ordinance within the meaning of section 125.66, Florida Statutes (1993); so the County was required to comply with the notice and public hearing requirements of that statute....

...The statutory definition of what constitutes a "land-use regulation" does not answer the question of whether the fact that the ordinance requires these relatively minor changes in the interior of the building makes the ordinance a "land-use regulation." § 125.66(6), Fla....

...presumption of correctness which attaches to the trial court's determination that the ordinance is not a land-use regulation. [5] *223 While T.J.R. Holding indicates that the conduct portions of the Broward County ordinance can stand even though the section 125.66(6) requirements were not met, [6] it does not answer the question of whether those portions that regulate the interior structure of buildings can stand....

...2d DCA 1981), rev. denied, 417 So.2d 328 (Fla. 1982), the second district concluded that the city was required to comply with section 166.041 (the statute which governs the enactment of municipal zoning ordinances, not county ordinances which are governed by section 125.66) before it could pass an emergency one year moratorium on building permits....

...We deny appellants' motions for rehearing [1] and disapprove the suggestion for certification by 3299. [2] While it is our conclusion that the motion for certification is legally insufficient, there is a question of great public importance involved in this case which should be resolved by the supreme court. Section 125.66, Florida *228 Statutes (1993), does not provide clear guidance for county governments in determining whether a proposed ordinance is a "land use regulation" subject to the special adoption requirements of that statute....

...Accordingly, we certify the following question as being of great public importance, even though the motion does not make a case for certification: IS AN ORDINANCE THAT REQUIRES MODIFICATIONS TO ONLY THE INTERIOR STRUCTURE OF A BUILDING AN ORDINANCE THAT "AFFECTS THE USE OF LAND" WITHIN THE MEANING OF SECTION 125.66, FLORIDA STATUTES? While both appellants' motions are being denied because their arguments are unpersuasive, it is necessary that we correct a factual error in our opinion which does not affect the result....

...Code would not necessarily be rendered invalid even if a portion of it were to be considered a land use regulation. [7] Oddly, chapter 90-152 would not have affected City of Sanibel since it does not amend section 166.041. Chapter 90-152 amends only section 125.66 which covers county ordinances....

...accessory uses." The CEB found that Plaintiffs' homeless shelter was not a customary and accessory use for a church. Plaintiffs allege that in enacting Ordinance 82-2 the county did not comply with several of the technical requirements of Fla.Stat. § 125.66....

...Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their procedural due process claim. State Law Claims Plaintiffs' only remaining claims are that the zoning ordinances are void for failure to comply with Florida Statutes §§ 125.66 and 125.68....

...The facts in this case do not reveal a statutory scheme comparable to that in Parks. The specific statute relied on herein by the plaintiff requires that certain procedures be followed when the Board enacts an ordinance *108 rather than a resolution. [3] See Fla.Stat. § 125.66(2)....

...t purport to recognize a property interest of the plaintiff with the specificity of the statute in Parks. The focus in Parks was the restrictions on the legislative body's decision-making process which consequently created a legitimized expectation. Section 125.66(2) does not in any way require that the Board make a determination as to the legitimacy of plaintiff's alleged interest in the landfill or require that the Board then act to secure that interest for the plaintiff....

...The county has not closed its borders to out-of-county waste but has only limited its available landfills. The landfills in Citrus County are not, therefore, a hoarded resource. The plaintiff may utilize other landfills in the county, though the most cost-efficient one may be foreclosed to it. [3] Section 125.66(2), Florida Statutes, states: The regular enactment procedure shall be as follows: The board of county commissioners at any regular or special meeting may enact or amend any ordinance, except as provided in subsection (5), if notice of...

...ce. "Statutory interpretation is a question of law subject to de novo review." BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 289 (Fla. 2003). Because section 163.346 incorporates only the public notice requirements of sections 166.041(3)(a) and 125.66(2), Florida Statutes (2006), we conclude that two readings are not required for municipal resolutions adopted pursuant to the Community Redevelopment Act....

...163.387; creates a community redevelopment agency; approves, adopts, or amends a community redevelopment plan; or issues redevelopment revenue bonds under s. 163.385, the governing body must provide public notice of such proposed action pursuant to s. 125.66(2) or s....

...ces within the municipality where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance. (Emphasis added.) Finally, section 125.66(2), which applies to counties, provides in relevant part: (a) ......

...Section 163.346 specifies that the governing body of a municipality or county must give public notice and mail a timely notice to each relevant taxing authority before adopting resolutions pursuant to the Community Redevelopment Act. This public notice is subject to the standards set forth in section 166.041(3)(a) or 125.66(2). Although sections 166.041(3)(a) and 125.66(2) include additional procedures for enacting municipal and county ordinances respectively, they contain the identical public notice requirements....

...g; the title or titles of the proposed ordinance; and the place or places where the proposed ordinance may be inspected by the public; and (5) that the notice advise that interested parties may appear and be heard at the meeting. §§ 166.041(3)(a); 125.66(2)(a), Fla. Stat. Because section 163.346 incorporates only the public notice requirements of sections 166.041(3)(a) and 125.66(2), we find that section 163.346 does not impose a two-reading requirement for resolutions adopted pursuant to the Community Redevelopment Act....

...93-18 is invalid under several provisions of the Florida Statutes and the Florida Constitution. The four complaints are not uniform, however, and allege that the ordinance is invalid pursuant to different provisions. Nevertheless, all four complaints assert that the ordinance is invalid under sections 125.66(6), 163.3164(22), and 163.3194(2) of the Florida Statutes....

...As the Court finds that state law is unsettled concerning whether the ordinance is invalid under these provisions, the Court need not determine whether the ordinance is ambiguous or whether discrete, unconstitutional portions of the ordinance are severable from the remainder of the document. Sections 125.66(6) and 163.3194(2) specify procedures that a county board of commissioners must observe prior to the enactment of an ordinance regulating land use. Section 125.66(6) imposes requirements governing the form, timing and manner in which notice of a public hearing on a land use regulation must be published. [1] The parties do not dispute that the Board of Commissioners failed to comply with several of these requirements or that, if section 125.66(6) applies to Ord. 93-18, the ordinance is invalid. The parties do dispute, however, whether it is settled under state law that section 125.66(6) applies to the ordinance....

...In TJR Holding Co. v. Alachua County, 617 So.2d 798 (Fla. App. 1 Dist.1993), the First District held that an ordinance banning nudity and explicit or simulated sexual conduct within establishments serving alcohol was not a land use regulation within the meaning of section 125.66(6)....

...itution of a declaratory judgment action and subsequent decision by the Supreme Court of Louisiana."). The Court finds that both of these situations exist in the present case. This case is distinguishable from TJR Holding for several reasons. First, section 125.66(6) does not require that an ordinance qualify as a zoning ordinance in order to fall within the purview of the section. In fact, the section explicitly provides that an ordinance need not so qualify. Fla.Stat.Ann. § 125.66(6) ("Ordinances ......

...These requirements certainly do not restrict conduct permissible within adult establishments *585 and appear, on their face, to restrict the physical development of the structures occupying the land on which such establishments sit. They thus appear to "affect the use of land" within the meaning of section 125.66(6)....

...constructing an entertainment facility thereon to the tune of $800,000 or more. This language strongly suggests that an ordinance that restricts the sale of alcohol on real property "affects the use of land" and therefore qualify for coverage under section 125.66(6). Once again, no Florida court has considered the issue. Based on the foregoing, the Court concludes that it is not clear that TJR Holding controls the issue whether Ord. 93-18 falls within the purview of section 125.66(6)....

...The only issue concerns whether Ord. 93-18 constitutes "land development regulation". Defendants contend, under state law, it is settled that ordinances like Ord. 93-18 are not land development regulations. Defendants rely on their arguments made in connection with section 125.66(6)....

...or any other regulations controlling the development of land ... Fla.Stat.Ann. § 163.3164(22) (emphasis added). The section clearly does not require that an ordinance qualify as a zoning ordinance in order be covered by the section. Thus, as under section 125.66(6), the zoning analysis in TJR Holding does not control the question whether Ord....

...Moreover, no Florida court has considered whether the provisions of Ord. 93-18 regulating the physical dimensions of structures housing adult entertainment establishments, and the lighting therein, regulate land development. For the reasons set out in connection with section 125.66(6), the Court finds that the issue is unsettled as a matter of state law. As the applicability of sections 125.66(6), 163.3164(22), and 163.3194(2) to Ord....

...r that is published at least 5 days a week unless the only newspaper in the community is published less than 5 days a week ... [2] The Court notes that TJR Holding also considered whether the ordinance at issue was a zoning ordinance for purposes of section 125.66(5)....

...r of law. Id. IV. DISCUSSION A. Procedural Due Process First Assembly contends that it was denied procedural due process in the enactment of the zoning laws and in the County’s failure to codify those laws annually as required under Florida law. 1 § 125.66 Fla.Stat.; 2 § 125.68 Fla.Stat....

...followed. However, this is not First Assembly’s contention. Rather, First Assembly argues that the ordinances as enacted, and the failure of the County to annually codify the ordinances, constitutes a denial of federal due process under the law. . Section 125.66 Fla.Stat....

...The court further noted that a state law determination on Count X "may remove the need to decide certain questions of federal constitutional law." Id. Therefore, the circuit court certified to us the following question: Whether, for purposes of Florida Statutes section 125.66(4)(b), a "substantial or material change" in a proposed ordinance during the enactment process (that is, the kind of change that would require a county to start the process over) is confined to a change in the "original general purpose...

...blic's interest in efficient and responsive local government. In the following sections we (A) review the Monroe County zoning system in general and Ordinance No. 004-1997 in particular; (B) analyze the requirements for enacting ordinances listed in section 125.66, Florida Statutes (1995); (C) adopt a definition of "substantial or material change"; and finally (D) apply that definition to this case....

...The original version did not mention the Commercial Fishing Residential District, while the final version prohibited vacation rentals there. Finally, the original version addressed vacation rentals in 22 of the 23 Commercial Fishing Districts, but the final version did not refer to them. B. Section 125.66, Florida Statutes Article VIII, section 1 of the Florida Constitution authorizes counties to enact local ordinances: "The board of county commissioners of a county . . . may enact, in a manner prescribed by general law, county ordinances." Section 125.66, Florida Statutes (1995), establishes the procedures by which ordinances may be enacted: "In exercising the ordinance-making powers conferred by s.1, Art. VIII of the State Constitution, counties shall adhere to the procedures prescribed herein." § 125.66(1), Fla. Stat. (1995). Section 125.66 imposes detailed notice and hearing requirements depending on the type of ordinance proposed. Three subsections are particularly relevant here: (1) section 125.66(2), governing the "regular enactment procedure" for ordinances that do not involve land use districts; (2) section 125.66(4)(a), governing ordinances that change the zoning map designation for parcels of fewer than ten acres; and (3) section 125.66(4)(b), governing ordinances that change the zoning map designation of parcels larger than ten acres, or which change the list of permitted, conditional, or prohibited uses within a zoning category. We review each of these subsections below. 1. Section 125.66(2): the Regular Enactment Procedure Section 125.66(2) governs the enactment process for the vast majority of county ordinances....

...nances; and the place or places within the county where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear *827 at the meeting and be heard with respect to the proposed ordinance. § 125.66(2), Fla. Stat. (1995) (emphasis added). Thus, section 125.66(2) requires that notice of a proposed ordinance be published at least ten days before the commission meeting at which the ordinance will be considered. The notice must include the title of the proposed ordinance and "the place or places within the county where such proposed ordinance may be inspected by the public." § 125.66(2), Fla. Stat. (1995). Thus, when enacting most ordinances, counties must allow the public to inspect drafts of all proposed regular ordinances before their enactment. 2. Section 125.66(4)(a): Changes to the Zoning Map Designation of Parcels of Land Involving Fewer than Ten Acres Section 125.66(4)(a), Florida Statutes (1995), prescribes the procedures to be followed in enacting zoning changes affecting fewer than ten acres of land....

...irements of subsection (2), shall direct its clerk to notify by mail each real property owner whose land [will be affected]. . . . The notice shall state the substance of the proposed ordinance or resolution as it affects that property owner . . . . § 125.66(4)(a), Fla....

...This subsection requires compliance with the notice requirements of subsection (2), described above, and requires that counties mail to each property owner affected by the proposed ordinance a summary of the proposed ordinance explaining how the proposed ordinance will affect them. 3. Section 125.66(4)(b): Ordinances That Change the List of Permitted, Conditional, or Prohibited Uses Within a Zoning Category The last category of procedures applies, among other areas, to ordinances that change the list of permitted, conditional, or prohibited uses within a zoning category. Monroe County Ordinance 004-1997 falls within this category. Section 125.66(4)(b) provides in relevant part: (b) In cases in which the proposed ordinance or resolution changes the actual list of permitted, conditional, or prohibited uses within a zoning category ....

...The advertisement shall be in substantially the following form: NOTICE OF (TYPE OF) CHANGE The (name of local government unit) proposes to adopt the following by ordinance or resolution: (title of ordinance or resolution). A public hearing on the ordinance or resolution will be held on (date and time) at (meeting place). § 125.66(4)(b) (1995) (emphasis added). Section 125.66(4)(b) contains several important provisions....

...Any Change to the List of Permitted, Conditional, or Prohibited Uses Within Any Zoning Category Plaintiffs propose that any change to the list of permitted uses within any zoning category requires the process to restart. They derive this standard from the language of section 125.66(4)(b)....

...Plaintiffs argue that any change substantial enough to trigger the enactment process — that is, a change to the list of permitted, conditional, or prohibited uses within a zoning category — is substantial enough to require a restart when the change is made during that process. We disagree. What triggers the requirements of section 125.66(4)(b) is not the "substantial" nature of the proposed ordinance, but the fact that it changes the list of permitted, conditional, or prohibited uses....

...ies from changing a proposed ordinance as a result of public input, as such change would delay the enactment process. This would substantially diminish the role of the public in modifying a proposed ordinance. The purpose of the public hearings that section 125.66(4)(b) requires is to provide a forum for public comment so that proposed ordinances may be modified after input from citizens who may be affected by the ordinance....

...he ordinance's general purpose. The County argues that only changes that alter the original purpose of a proposed land use ordinance should require the enactment process to begin anew. We believe such a standard would be faithful both to the text of section 125.66 and to the public interest....

...This standard derives from the Florida Attorney General Opinion cited above, which states that "amendments can be made during passage of an ordinance when the amendment is not one changing the original purpose. " Op. Att'y Gen. Fla. 82-93 (emphasis added). As previously noted, section 125.66(4)(b) requires that the county advertise only the title of the proposed land use ordinance....

...opt changes based on input received at public hearings without compromising the public's right to receive adequate notice of proposed changes. By requiring that counties publish the title of proposed ordinances in a newspaper of general circulation, section 125.66(4)(b) places the public on notice that the availability of a particular land use might be altered throughout the county....

...he scope of the ordinance. Plaintiffs argue, however, that various changes were made during the enactment process, and that drafts of the proposed changes were not made available to the public until the last minute. As noted in the previous section, section 125.66(4)(b) does not require that counties provide drafts of proposed ordinances for public review. They are required only for regular ordinances, which are governed by section 125.66(2). Therefore, changes to the drafts cannot form the basis for requiring the enactment process to begin anew. As noted above, section 125.66(4)(b) requires that counties provide notice only of a proposed ordinance's title....

...Thus, there was no need to restart the enactment procedure. [3] III. CONCLUSION For the reasons stated, we hold that a change in the general purpose of a proposed ordinance is the definition of "substantial or material change" most compatible with the text of section 125.66(4)(b)....

...n that opinion to enact similar taxes to suddenly declare them illegal. Appellant also asserts that Orange County should have enacted Ordinance 91-17 pursuant to procedures established in section 166.041, Florida Statutes (1991), and not pursuant to section 125.66(1), Florida Statutes (1991). We disagree. Section 166.041 enumerates the procedures a municipality must follow when enacting an ordinance. Section 125.66(1) enumerates the procedures a county must follow when enacting an ordinance. Section 125.66(1) specifically states that "in exercising the ordinance-making powers conferred by s. 1, Art. VIII of the State Constitution, counties shall adhere to the procedures prescribed herein." We find that the County properly enacted the ordinance pursuant to procedures established in section 125.66(1)....

...lorida Constitution Count IX: Inverse Condemnation based upon as-applied violation of Art.X, § 6(a) of the Florida Constitution Count X: Declaratory Judgment as to whether Ordinance is void ab initio because enacted in violation of Florida Statutes § 125.66 Count XI: Compensation for Taking of private property without due process of law Count XII: Violation of Civil Rights under color of state law as a result of violation (Alleged in Count X) Count XIII: Other damages resulting from wrongful e...

...Article VIII, Section l(f & g) of the Constitution of the State of Florida grant both charter and non-charter county governments the power to enact ordinances. Defendant Monroe County is covered by said provision of the Constitution of the State of Florida. 20. Florida Statutes § 125.66 governs the procedures by which a county is empowered to enact ordinances. 21. Prior to enacting the Ordinance, and pursuant to the requirements of § 125.66, Defendant advertised and held two required public hearings on the proposed ordinance....

...nt's one undisputed fact is enough to grant summary judgment on Counts VI, VII, VIII, and IX on ripeness grounds. Count X Plaintiff moved for summary judgment on Count X, contending that Defendant did not adhere to the guidelines of Florida Statutes § 125.66 in enacting the Ordinance, and, therefore, the Ordinance must be declared void ab initio....

...fy the Constitutional question presented. See Duke v. James, 713 F.2d 1506 (11th Cir. 1983). In this instance, Counts X through XIII are based on Plaintiffs' assertions that the Defendant failed to properly adopt the subject ordinance as required by § 125.66. While these counts contain Constitutional claims, such claims are predicated on Plaintiffs' assertion that the Defendant failed to meet the statutory requirements of § 125.66....

...Board of County Commissioners of Broward County, 838 F.Supp. 580, 582 (S.D.Fla. 1993). The question of state law presented under Count X (and related Counts XI, XII, and XIII) is whether the subject ordinance was enacted in violation of Florida Statutes § 125.66(4) regarding notice requirements of the ordinance enactment procedure....

...priate course of action [15] . Thus, the court must evaluate Plaintiffs Motion for Summary Judgment *1276 as to Count X on its merits. Essentially, Plaintiffs have moved for summary judgment on Count X, citing multiple violations of Florida Statutes § 125.66 on the part of the Defendant, including violations of the hearing requirement (both under statute and caselaw) and violations of notice requirements....

...(Complaint at 35.) Count IX: Inverse Condemnation based upon as-applied violation of Art. X, § 6(a), of the Florida Constitution. (Complaint at 36.) Count X: Declaratory Judgment as to whether Ordinance 004-1997 is void ab initio because enacted in violation of § 125.66, Florida Statutes. (Complaint at 37.) Count XI: Compensation for Taking of private property without Due Process of Law. (Complaint at 39.) Count XII: Violation of Civil Rights [42 U.S.C. § 1983] under color of state law as a result of violation of § 125.66, Florida Statutes....

...onal adjudication." Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). 1. Counts X, XI, XII, XIII Count X seeks a declaratory judgment as to whether Ordinance 004-1997 was enacted in violation of the notice requirements of § 125.66 of the Florida Statutes. Plaintiffs argue that Defendant did not comply with § 125.66 because it failed to properly notice public hearings and because the Defendant made material changes to the proposed ordinance without renewing the enactment process. Plaintiff alleges that the Board of County Commissioners made last second textual changes to the proposed ordinance before the public hearing was held and that the property owners were not given adequate notice of such regulatory scheme. Section 125.66(4) states in relevant part as follows: *1282 Ordinances ... that change the actual list of permitted, conditional, or prohibited uses within a zoning category ... shall be enacted pursuant to [a certain] procedure [which includes] ... public notice .... § 125.66(4), Fla....

...Accordingly, Plaintiffs' Motion for Partial Summary Judgment as to Count X should be denied. Count XI (taking without due process), Count XII (§ 1983 claim), and Count XIII (other damages), seek damages which are predicated upon Defendant's alleged violation of § 125.66. Since the resolution of the unsettled state issue regarding § 125.66 in Count X could moot or substantially modify the issues in Counts XI, XII, and XIII, it is also appropriate to abstain as to these counts....

...(Complaint at 35.) Count IX: Inverse Condemnation based upon as-applied violation of Art. X, § 6(a), of the Florida Constitution. (Complaint at 36.) Count X: Declaratory Judgment as to whether Ordinance 004-1997 is void ab initio because enacted in violation of § 125.66, Florida Statutes. (Complaint at 37.) Count XI: Compensation for Taking of private property without Due Process of Law. (Complaint at 39.) Count XII: Violation of Civil Rights [42 U.S.C. § 1983] under color of state law as a result of violation of § 125.66, Florida Statutes....

...onal adjudication." Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). 1. Counts X, XI, XII, XIII Count X seeks a declaratory judgment as to whether Ordinance 004-1997 was enacted in violation of the notice requirements of § 125.66 of the Florida Statutes. Plaintiffs argue that Defendant did not comply with § 125.66 because it failed to properly notice public hearings and because the Defendant made material changes to the proposed ordinance without renewing the enactment process....

...held and that the property owners were not given adequate notice of such regulatory scheme. Although Plaintiffs admit that there is no state court case law on point which would resolve this issue, Plaintiffs argue that state law is not "unsettled." Section 125.66(4) states in relevant part as follows: Ordinances ... that change the actual list of permitted, conditional, or prohibited uses within a zoning category ... shall be enacted pursuant to [a certain] procedure [which includes] ... public notice .... § 125.66(4), Fla....

...ues); First Assemby of God of Naples Fla., Inc., v. Collier County, 775 F.Supp. 383 (M.D.Fla.1991) (court refused to exercise pendent jurisdiction over state claims that zoning ordinances were void for failing to comply with state laws, Fla. Stat. §§ 125.66 and 125.68)....

...Accordingly, Plaintiffs' Motion for Partial Summary Judgment as to Count X should be denied. Count XI (taking without due process), Count XII (§ 1983 claim), and Count XIII (other damages), seek damages which are predicated upon Defendant's alleged violation of § 125.66. Since the resolution of the unsettled state issue regarding § 125.66 in Count X could moot or substantially modify the issues in Counts XI, XII, and XIII, it is also appropriate to abstain as to these counts....

...equal protection (Count VI); various terms used in the ordinance are unconstitutionally vague (Count VII); the ordinances are unconstitutionally overbroad (Count VIII); and the ordinances were enacted improperly and in violation of Florida Statutes section 125.66 (Count IX)....

...cted and enforced in a manner which deprived them of due process and deprived them of property without just compensation. Plaintiffs also advanced claims under Florida law. Among their claims, Plaintiffs contend that Monroe violated Florida Statutes section 125.66 1 when it made changes to the Ordinance during the enactment process. 2 Because no controlling *1286 Florida Supreme Court authority seems to exist on this question, we certify the issue to the Florida Supreme Court. Florida Statutes section 125.66 sets out the procedures under which a county is empowered to enact an ordinance....

...mercial Fishing Residential District. The BOCC then enacted the Ordinance at the second hearing. Plaintiffs argue that the Ordinance should be void ab initio because Monroe amended the Ordinance during the enactment process in a manner that violated section 125.66. The district court concluded that Monroe did not violate section 125.66. Florida Statutes section 125.66(4)(b) contains the notice requirements for proposed ordinances that change the actual list of permitted, conditional, or prohibited uses within a zoning category....

...ontrolling precedent of the supreme court of Florida.” Fla. Const. art. V, § 3(b)(6). Finding no applicable supreme court precedent, we therefore certify to the Florida Court the following question: *1287 Whether, for purposes of Florida Statutes section 125.66(4)(b), a “substantial or material change” in a proposed ordinance during the enactment process (that is, the Mnd of change that would require a county to start the process over) is confined to a change in the “original general pu...

...issues and the manner in which the answers are given.” Washburn v. Rabun, 755 F.2d 1404, 1406 (11th Cir.1985). To assist the state court, the entire record in this case and the briefs of the parties are transmitted herewith. QUESTION CERTIFIED. . Section 125.66(4)(b) states, in part: In cases in which the proposed ordinance or resolution changes the actual list of permitted, conditional, or prohibited uses within a zoning category, or changes the actual zoning map designation of a parcel or p...

...ction 166.041. This section sets out procedures under which a municipality is empowered to enact an ordinance. Because this case pertains to a county ordinance, the prop *1286 er statutory section — as the district court recognized — seems to be section 125.66.

...y. Pursuant to this court's November 21, 2002, Order Adopting in Part Report and Recommendation (D.E.# 299), four counts remain: Count X: Declaratory Judgment as to whether Ordinance is void ab initio because enacted in violation of Florida Statutes § 125.66 Count XI: Compensation for Taking of private property without due process of law Count XII: Violation of Civil Rights under color of state law as a result of violation (Alleged in Count X) Count XIII: Other damages resulting from wrongful e...

...Article VIII, Section 1(f & g) of the Constitution of the State of Florida grants both charter and non-charter county governments the power to enact ordinances. Defendant Monroe County is covered by said provision of the Constitution of the State of Florida. 2. Florida Statutes § 125.66 governs the procedures by which a county is empowered to enact ordinances. Section *1370 125.66, Fla....

...The advertisement shall be in substantially the following form: NOTICE OF (TYPE OF) CHANGE The (name of local governmental unit) proposes to adopt the following by ordinance or resolution: ( title of ordinance or resolution). A public hearing on the ordinance or resolution will be held on (date and time) at (meeting place). § 125.66(4)(b), Fla. Stat. (2001) (emphasis added). 3. Each Monroe County Land Use District is a "zoning category" within the meaning of § 125.66(4) Fla. Stat. See Plaintiffs' Seventh Request for Admissions ¶ 1 and Defendant's Response to Request for Admissions ¶ 1. 4. Prior to enacting the Ordinance, and pursuant to the requirements of § 125.66, Defendant advertised and held two required public hearings on the proposed ordinance....

...The Ordinance as enacted prohibits vacation rentals in Commercial Fishing Residential District. See Order at p. 11, ¶ 44. ANALYSIS Count X is a claim for Declaratory Judgment as to whether the Ordinance is void ab initio because enacted in violation of Florida Statutes § 125.66. Embodied in Section 125.66 are notice requirements for proposed ordinances that change the actual list of permitted, conditional, or prohibited uses within a zoning category. See Fla. Stat. § 125.66(4)(b)....

...denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 459 (2000). "Failure to follow the state statutory *1373 notice requirements render[s] a zoning ordinance void." Southern Entertainment, 736 F.Supp. at 1102. Defendant contends that it complied with Section 125.66 in enacting the Ordinance; Plaintiffs contend that defendant did not comply with Section 125.66. At the hearing, plaintiffs categorized their arguments as "Technical Requirements of 125.66 Regarding Advertised Notice" and "Notice and Hearing Violations." The court will address its analysis in such terminology, turning first to plaintiffs' contention that defendant violated the notice and hearing provisions of Section 125.66....

...At the outset, the court disagrees with plaintiffs suggestion that a substantial or material change is any change to a proposed ordinance that would change the actual list of permitted/prohibited uses. Plaintiffs contend that this view can be derived from the plain language of Section 125.66 itself in that heightened notice is required for "any change to the actual list of permitted, conditional, or prohibited uses within a zoning category." The court rejects this contention, noting that there is a separate standard for de...

...While the ultimate form of regulation evolved throughout the enactment process [8] , the basic character of the Ordinance did not. Accordingly, the court finds that there were no substantial or material changes made to the Ordinance. Technical Requirements of 125.66 Regarding Advertised Notice Plaintiffs contend that defendant violated the notice requirement regarding the publishing of the title of the ordinance by (1) failing to publish the complete title of the Ordinance, (2) changing its published title from the first notice to the second *1375 notice, and (3) failing to reflect the actual title of the proposed ordinance or any draft of same. Defendant claims that both notices were "substantially" in the form required by Section 125.66, and, thus in accordance with Florida law....

...ANGE The (name of local governmental unit) proposes to adopt the following by ordinance or resolution: ( title of ordinance or resolution). A public hearing on the ordinance or resolution will be held on (date and time) at (meeting place). Fla Stat. § 125.66(4)(b)(2). Upon inspection, the court finds that both of the notices provided by defendant were in substantially the form set forth by Section 125.66(4)(b)(2). Having determined that defendant's advertised notices were substantially in the form set forth by Section 125.66(4)(b)(2), the court finds the appropriate standard of review for the sufficiency of the titles of said notices to be contained in City of Hallandale v....

...all land use districts" was misleading [12] . Plaintiffs attempt to use First Assembly of God of Naples v. Collier County, 20 F.3d 419 (11th Cir.1994) to illustrate that even a minor deviation from the strict mandatory jurisdictional requirements of Section 125.66 requires this court to find the Ordinance void ab initio....

...es violated federal due process requirements. First Assembly, 20 F.3d at 420. The Court specifically noted that plaintiffs challenged only the federal constitutionality of the ordinances and had not challenged whether the strict notice procedures of Section 125.66 has been followed. Id. at 421, n. 1. Thus, the court never interpreted the provisions of Section 125.66 in First Assembly [13] ....

...The court does not find merit in plaintiffs' argument that defendant violated Florida law by changing portions of the proposed ordinance during the enactment process through different drafts. Rather, defendant complied with all notice and hearing requirements of § 125.66....

...Plaintiffs have relied upon this language in their Renewed Motion for Summary Judgment at p. 6. Thus, the court finds the Hallandale decision wholly applicable here. [10] The court finds this to be the title as proposed under the format required by § 125.66(4)(b)(2), which requires: the (name of local governmental unit) proposes to adopt the following by ordinance or resolution: ( title of ordinance or resolution)....

...applied to Plaintiffs, the County's ban on vacation rentals effected a taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments, (4) the Ordinance is void because it was enacted in violation of Florida Statutes § 125.66(4), (5) the Ordinance was prematurely enforced in violation of Florida Statutes § 380.05(6), and (6) both on its face and as applied to Plaintiffs, the County's ban on vacation rentals effected a taking of private property without just...

...Plaintiffs appeal the dismissal of every claim as well as the District Court's refusal to grant discovery sanctions. II. Florida Supreme Court Decision After oral argument, we certified this question to the Florida Supreme Court: Whether, for purposes of Florida Statutes section 125.66(4)(b), a "substantial or material change" in a proposed ordinance during the enactment process (that is, the kind of change that would require a county to start the process over) is confined to a change in the "origin...

...Florida law, Plaintiffs did not have "adequate notice and a meaningful opportunity to be heard as a matter of federal law." Plaintiffs raised no constitutional attack on the pertinent Florida statute, and so the constitutionality of Florida Statutes § 125.66 -- setting out procedures under which a county is empowered to enact an ordinance -- is not properly before us....

...Register, III State Attorney Eighth Judicial Circuit Post Office Box 1437 Gainesville, Florida 32602 Dear Mr. Register: You have asked for my opinion on substantially the following question: Can notice of a county commission's intent to consider an ordinance which omits one or more of the requirements prescribed by s. 125.66 (2)(a), F.S., as amended by Ch....

...286.0105 , F.S. (1988 Supp.), relating to public notice of meetings, be cured by subsequent notice which is published less than 15 days before the meeting of the commission to consider the ordinance? In sum: Failure to comply with the procedural requirements of s. 125.66 (2), F.S., as amended supra, and s. 286.0105 , F.S., cannot be cured by subsequent notice published less than 15 days before a meeting of the commission to consider enactment of an ordinance. Section 125.66 , F.S., prescribes the procedure for enactment of ordinances by noncharter counties. This section provides that, "[i]n exercising the ordinance — making powers conferred by s. 1, Art. VIII of the State Constitution, counties shall adhere to the procedures prescribed herein." 1 (e.s.) Pursuant to s. 125.66 (2), F.S., as amended by s....

...rs at any regular or special meeting may enact or amend any ordinance, except as provided in subsection (5), 2 if notice of intent to consider such ordinance is given at least 15 days prior to said meeting. . . . The requirement of notice imposed by s. 125.66 (2)(a), F.S., as amended supra, is phrased in terms of "shall" and imposes a mandatory duty to act rather than making such performance discretionary....

...section. 4 When the Legislature prescribes the method of doing a thing, that method must be observed. When the controlling law directs how a thing shall be done, that is, in effect, a prohibition against its being done in any other way. 5 Thus, when s. 125.66 (2)(a), F.S., as amended supra, sets forth procedural requirements for the adoption of county ordinances, it effectively prohibits the adoption of such ordinances by any other method....

...Again, when the Legislature prescribes how a thing is to be done, there is a prohibition against it being done in any other way. 6 Therefore, it is my opinion that the notice of a county commission's intent to consider an ordinance must comply with the procedural requirements of s. 125.66 (2), F.S., as amended by Ch....

...89-267, Laws of Florida, and s. 286.0105 , F.S. (1988 Supp.), and cannot be cured by subsequent notice which is published less than 15 days before the meeting of the commission to consider the ordinance. Sincerely, Robert A. Butterworth Attorney General (gh) 1 Section 125.66 (1), F.S....

...VIII, State Const., which provides that "[t]he board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law. . . ." (e.s.) 2 Subsection (5), of s. 125.66 , F.S., relates to ordinances or resolutions which rezone private real property....

...Escambia County, 436 So.2d 293 (1 D.C.A.Fla., 1983), pet. for rev. den., 444 So.2d 416 (Fla. 1984), in which the First District Court of Appeal determined that an Escambia County ordinance regulating the operation of bottle clubs was invalidly enacted because the procedural elements of s. 125.66 (2), F.S....

...County Attorney County of Monroe Post Office Box 1680 Key West, Florida 33040 Dear Mr. Proby: This is in response to your request for an Attorney General's Opinion regarding substantially the following question: ARE ALL PUBLIC MEETINGS OR HEARINGS HELD IN ACCORDANCE WITH ss. 125.66 , 163.205, 163.210, 163.215, 163.3184 and 163.3187 , F.S., REQUIRED TO BE HELD AFTER 5:00 P.M....

...nty to enact ordinances in the manner prescribed by Ch. 125 , F.S., which are not inconsistent with general law). In exercising the ordinance-making powers conferred by s. 1, Art. VIII, State Const., counties must follow the procedures prescribed in s. 125.66 , F.S. Section 125.66 (1), F.S. The regular enactment procedure for county ordinances is set forth in s. 125.66 (2), F.S., which states that at any regular or special meeting, the board of county commissioners may enact or amend any ordinance, except any ordinances or resolutions which rezone private real property as described in (5), if notice of intent to consider such an ordinance is given at least 15 days prior to said meeting, excluding Sundays and legal holidays. And see, s. 125.66 (3), F.S., which prescribes the emergency enactment procedure for ordinances. Section 125.66 (5), F.S., specifically addresses the enactment of ordinances or resolutions which rezone private real property....

...Notice shall be given at least 30 days prior to the date set for the public hearing. The board of county commissioners shall hold a public hearing on the proposed ordinance or resolution and may, upon conclusion of the public hearing immediately adopt the ordinance or resolution. Section 125.66 (5)(a), F.S. In cases in which the proposed rezoning involves 5 percent or more of the total land area of the county, the board of county commissioners is required to hold 2 advertised public hearings on the proposed ordinance or resolution. The statute, s. 125.66 (5)(b)1., F.S., specifically requires that both hearings shall be held after 5 p.m....

...Pursuant to this statutory section, the second hearing shall be held approximately 2 weeks after the first hearing and shall be advertised approximately 5 days prior to the public hearing. The day, time, and place of the second public hearing shall be announced at the first public hearing. Section 125.66 (5)(b)1., F.S. And see, s. 125.66 (5)(b)2., F.S., setting forth requirements for newspaper advertisements of public hearings pursuant to s. 125.66 (5)(b)1., F.S., and subsection 3....

...which states that in lieu of publishing newspaper advertisements the board of county commissioners may mail notice to each person owning real property within the area covered by the ordinance or resolution and describing what must be contained in such notice. The provisions of s. 125.66 (5)(b)1., F.S., clearly require that, in cases in which rezoning of 5 percent or more of the total land area of the county is proposed, two public hearings must be held and "[b]oth hearings shall be held after 5 p.m....

...A legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way. Alsop v. Pierce, 19 So.2d 799 , 805-806 (Fla. 1944); Dobbs v. Sea Isle Hotel, 56 So.2d 341 , 342 (Fla. 1952); Thayer v. State, 335 So.2d 815 , 817 (Fla. 1976). My review of s. 125.66 , F.S., indicates that subsection (5)(b)1., is the only provision which imposes a requirement of two advertised public hearings to be held after 5 p.m....

...Each local government shall adopt the comprehensive plan or element or portion thereof by ordinance. The statutory requirements for public hearings on the proposed comprehensive plan, plan element, or plan amendment contained in s. 163.3184 (15)(b), F.S., as amended, are substantially similar to the provisions of s. 125.66 (5)(b)2., F.S., and read as follows: The local governing body shall hold at least two advertised public hearings on the proposed comprehensive plan, plan element, or plan amendment....

...163.3187 , F.S., as amended by s. 9, Ch. 85-55, Laws of Florida, which inter alia, provides that amendments to comprehensive plans may be made no more than twice a year except in the case of emergencies. With regard to the time and frequency of public hearings as prescribed by s. 125.66 , F.S., and ss....

...Gross, 421 So.2d 44 (3 D.C.A.Fla., 1982). Cf., Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla. 1962) (last expression of Legislature controls.) In sum, it is my opinion unless or until judicially or legislatively determined otherwise, that the provisions of s. 125.66 , F.S., regarding the enactment of ordinances and resolutions by a county would apply generally to such action when taken by the board of county commissioners. In cases involving a proposed rezoning of 5 percent or more of the total land area of the county, s. 125.66 (5)(b), F.S., requires more than one advertised public hearing to be held on a weekday after 5 p.m....

proceeding "in a manner prescribed by general law." Section 125.66(1), F.S., states, "[i]n exercising the ordinance-making

resolution. As an example of such safeguards, section 125.66, Florida Statutes, requires ten days notice

...section 106.3.A of the LDC to declare Barnott's FSP approval and the FSP void and ultra vires and to enjoin the resulting violations of the LDC from the construction or operation of the FSER. Count two seeks relief pursuant to (1) chapter 86; (2) section 125.66(4), Florida Statutes (2016), the notice statute; and (3) section 106.3.A to declare Barnott's FSP approval and the FSP void and ultra vires because the County and Barnott violated the notice statute and to enjoin the resulting violations of the LDC from the construction or operation of the FSER....

...As discussed below, we conclude that they do not apply to this case. 2. Notice Statute - 17 -  Count two of the amended complaint sought declaratory and injunctive relief based upon an alleged violation of section 125.66(4), Florida Statutes (2016) (the Notice Statute)....

...the FSP are void because the County failed to provide the noticed public hearing required by the Notice Statute" and that the defense of failure to exhaust administrative remedies did not apply to claims for violation of the Notice Statute. Section 125.66(4) provides in part as follows: (4) Ordinances or resolutions, initiated by other than the county, that change the actual zoning map designation of a parcel or parcels of land shall be enacted pursuant to subsection (2)....

...a zoning category, or ordinances or resolutions initiated by the county that change the actual zoning map designation of a parcel or parcels of land shall be enacted pursuant to the following procedure: The remainder of section 125.66(4) includes provisions for public hearings before the Board and the requirements for providing notice. Section 125.66(2)(a) also provides for a public hearing with notice when the Board amends any ordinance. Section 125.66 applies when the Board takes action to enact an ordinance or resolution. See Op. Att'y Gen. Fla. 85-259, *5 (1985) (stating that section 125.66's provisions "regarding the enactment of ordinances and resolutions by a county would apply generally to such action when taken by the board of county commissioners")....

...requirements); Linville v. Escambia County, 436 So. 2d 293, 294 (Fla. 1st DCA 1983) (dealing with county commission that enacted ordinance without proper notice). Here, the Board did not enact or amend any ordinance or resolution, and section 125.66 does not apply....

...qualified immunity, the court correctly determined that the claims against Barnott are redundant to the claims against the County. Thus, we affirm the trial court's dismissal of Barnott as a party as well as the dismissal of count three. And while section 125.66(4) of the Florida Statutes and section 106.3.A of the LDC do not excuse the Plaintiffs' failure to exhaust any available administrative remedies, the alleged ultra vires acts do provide an exception to the exhaustion requirement....

...enacted and enforced in a manner which deprived them of due process and deprived them of property without just compensation. Plaintiffs also advanced claims under Florida law. Among their claims, Plaintiffs contend that Monroe violated Florida Statutes section 125.661 when it made changes to the Ordinance during the enactment process.2 Because no controlling Florida Supreme Court authority seems to exist on this question, we certify the issue to the Florida Supreme Court. 1 Section 125.66(4)(b) states, in part: In cases in which the proposed ordinance or resolution changes the actual list of permitted, conditional, or prohibited uses within a zoning category, or changes the actual...

...atutes section 166.041. This section sets out procedures under which a municipality is empowered to enact an ordinance. Because this case pertains to a county ordinance, the proper statutory section -- as the district court recognized -- seems to be section 125.66. 3  Florida Statutes section 125.66 sets out the procedures under which a county is empowered to enact an ordinance....

...shing Residential District. The BOCC then enacted the Ordinance at the second hearing. Plaintiffs argue that the Ordinance should be void ab initio because Monroe amended the Ordinance during the enactment process in a manner that violated section 125.66. The district court concluded that Monroe did not violate section 125.66. 4  Florida Statutes section 125.66(4)(b) contains the notice requirements for proposed ordinances that change the actual list of permitted, conditional, or prohibited uses within a zoning category....

...olling precedent of the supreme court of Florida.” FLA. CONST. art. V, § 3(b)(6). Finding no applicable supreme court precedent, we therefore certify to the Florida Court the following question: Whether, for purposes of Florida Statutes section 125.66(4)(b), a “substantial or material change” in a proposed ordinance during the enactment process (that is, the kind of change that would require a county to start the process over) is confined to a change in the...

...Plaintiffs’ reliance on the pendency of Bordo is misplaced. The question certified therein is as follows: Is an ordinance that requires modifications to only the interior structure of a btdlding an ordinance that “affects the use of land” within the meaning of Section 125.66, Florida Statutes? The object of local government regulation— “adult” establishments — is the samé in Bordo and in the instant cases....

...ing that development agreements have nothing to do with DRI DOs. Rather than addressing the special public notice requirements identified by Osborne, SDI argued that the County did not need to comply with the general public notice requirements under section 125.66, Florida Statutes....

...not substantially or materially alter Ordinance 2017-12. Thus, no new round of public notifications was required. Osborne responded, characterizing SDI’s assertion as “a classic ‘straw man’ argument” because Osborne never claimed the County failed to comply with section 125.66, Florida Statutes. Osborne filed a cross-motion for summary judgment, claiming that a 1984 development agreement between a previous developer and the state land planning agency, as adopted by the County through the enactment of Ordinance 89-9, serves as the “benchmark” for all changes to the Sandestin DRI DO....

...The trial court did not address Osborne’s claim that, before considering Revised Ordinance 2017-12, the County failed to comply with the special public notice requirements applicable to development agreements and DRI DOs. Instead, the trial court agreed with SDI that section 125.66, Florida Statutes, did not require the County to send a new round of notifications before it considered Revised Ordinance 2017-12....

...• Revised Ordinance 2017-12 “made significant and material changes to the development terms, conditions, and rights of SDI.” Notably, Osborne never alleged that the County failed to satisfy the general notice requirements under section 125.66, Florida Statutes. On February 27, 2018, SDI filed its answer and affirmative defenses. In its fourth affirmative defense, SDI alleged that Osborne received constructive notice of the November 7, 2017, public meeting because the County satisfied the general notice requirements under section 125.66(2)(a), Florida Statutes....

...163.3225 do not apply to the NOPC application submitted by SDI. (emphasis supplied). As to public notice, SDI argued that Revised Ordinance 2017- 12 did not substantially and materially change Ordinance 2017- 12. Thus, no new round of notifications was required under section 125.66, Florida Statutes. 10  In response, Osborne characterized the 1984 agreement as a “development agreement” 6: The Revised Ordinance No....

...nt and Ordinance 89- 9 control the definition of “open space” for the Sandestin DRI DO. Thus, any change to the definition of “open space” is necessarily a change to a development agreement. Osborne characterized SDI’s argument under section 125.66, Florida Statutes, as “a classic ‘straw man’ argument” because Osborne never raised such a claim. Osborne filed a cross-motion for summary judgment, arguing that “the November 7, 2017, approval of the NOPC and of the...

...The trial court did not address Osborne’s claim that the County failed to comply with the special public notice requirements contained in sections 163.3225 and 380.06, Florida Statutes. Instead, the trial court found that the County did not need to comply with the general public notice requirement under section 125.66, Florida Statutes....

...The old summary judgment standard applies. See In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So. 3d 72, 77–78 (Fla. 2021); Washington v. Fla. Dep’t of Revenue, 337 So. 3d 502, 508 n.1 (Fla. 1st DCA 2022). II Section 125.66(4), Florida Statutes, outlines the minimum procedures that a county must follow to make certain zoning changes through the ordinance enactment process. See § 125.66(4), Fla....

...(2017). Here, the trial court granted final summary judgment after finding that no new round of notifications was required under that statute. But Osborne never claimed that the County failed to comply with the general notification requirements under section 125.66....

...requirements pertinent to this appeal. See generally Neumont v. 13 Fla., 451 F.3d 1284, 1286 (11th Cir. 2006), certified question answered sub nom. Neumont v. State, 967 So. 2d 822 (Fla. 2007) (“Neumont”) (“Florida Statutes section 125.66(4)(b) contains the notice requirements for proposed ordinances that change the actual list of permitted, conditional, or prohibited uses within a zoning category....

...Because of the difference in purpose between Ordinance 2017- 12 and Revised Ordinance 2017-12 (as reflected by the differences in the advertised purposes), the County’s consideration of Revised Ordinance 2017-12 triggered the requirement for a new round of notifications under section 125.66, Florida Statutes. See Neumont, 967 So. 2d at 823. In this case, however, the trial court did not analyze whether the actual notice provided by the County prior to its consideration of Revised Ordinance 2017-12 satisfied the requirements of section 125.66(4)(b), Florida Statutes; instead, the trial court granted final summary judgment after finding that no new round of notifications was required under that statute. But Osborne never alleged that the County failed to comply with 125.66(4)(b), Florida Statutes; therefore, we do not address whether Revised Ordinance 2017-12 is void for failure to satisfy the general public notice requirements under that statute....

...(“Sections 163.3220- 163.3243 shall be regarded as supplemental and additional to the powers conferred upon local governments by other laws and shall not be regarded as in derogation of any powers now existing.”). In addition to the general public notice requirements that may apply under section 125.66(4)(b), Florida Statutes, special public 24 notice requirements apply when a local government seeks to enter into, modify, or revoke a development agreement....

commission acted on the ordinance, as required by Section 125.-66(2), Fla.Stat. (1981). On that basis, we declare

...A local government that proposes to consider a plan amendment pursuant to this paragraph is not required to comply with the procedures and public notice requirements of s. 163.3184(15)(c) for such plan amendments if the local government complies with the provisions in s. 125.66(4)(a) for a county or in s....

...ase. Although the procedures for small-parcel amendments to a comprehensive plan are more streamlined that those required for larger ones, actual notice and notice by publication of a public hearing are required to all affected property owners under section 125.66(4)(a), Florida Statutes, and more than one public hearing may be held....