LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

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Contemptable behavior ? Not according to the 5th DCA

So back in 2001 there's a referendum in Cocoa Beach to limit height and density. Doesn't go to the planning board first (which it would have to if treated as an LDR), and a group challenges it on that basis before the election. Court agrees to let the election go forward if City stays enforcement until hearing on validity later, and City agrees.

City then adopts a bunch of moratoria and LDR amendments to implement the height and density restrictions. Landowners angry. Court affronted - indirect implementation of referendum that City agreed to stay. Court later invalidates referendum - and this later gets overturned on appeal in decision that referenda, while legislative zoning ordinances, aren't LDRs for purposes of Chapter 163's requirement of local planning agency review. (Bad decision, but . . . ).

In the meantime, City continues enforcing the moratorium, etc. and end up in contempt.. City stands on its "legislative prerogative" and files a brief that's clearly a self-righteous rant (but wins any way). Here's an excerpt from the opinon:


Like the trial court, we are somewhat puzzled by the City’s position below and on
appeal. Rather than address the issue of whether the City actually violated the injunction by enacting the moratorium, the City has launched off into an attack on the trial court and what it calls its “egregious” violation of the constitution by “controlling” the City’s legislation in violation of the separation of powers. Reading the City’s brief as broadly as we can, however, we can divine an argument that the agreement of the parties, and the injunction based on that agreement, pertained only to the charter amendments approved pursuant to the challenged referendum and did not by its terms restrict the City’s ability to enact similar limitations by other methods available to the City’s commission. Because we agree with this proposition, we are bound to reverse the appealed order.

Vacation Beach did not challenge the moratorium as being beyond the power of the commission to enact; only that the City was prevented from enacting a moratorium that had the same purpose and effect as the referendum measure whose validity was in litigation and which was the subject of the injunction. We agree with the City that it was not so constrained. To say that the City could not do indirectly what it could not do directly does not solve the question whether the City could do something different but within its power that had the same purpose or effect as the referendum. If the City had the power to issue the moratorium before the referendum litigation and the injunction, nothing we can see prevented them from taking those same measures thereafter. The City did not agree to forebear height and density requirements or to place a moratorium on building. Even if the City intended its moratorium to show contempt of the court’s injunction, it did not because the moratorium was not within
the injunction. The City merely agreed to stay enforcement of the charter amendments.

The contempt order is vacated.

One simply must wonder what the Court would have done if the Plaintiffs had added a declaratory/injunction count against the moratorium itself as improperly supported, arbitrary and capricious.

Here's the opinion

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