Fort Walton Beach Council agenda — 09-12-06 ‎(Executive)‎ — reading text

Toni L. Craig Marital & Family Law Attorney at Law Municipal Law Re: Lamar v. City of Fort Walton Beach Executive Session Timeline of Events/ Action Requested 2000 - Lamar Inc. filed suit regarding amortization requirements for its billboards throughout the City. 2002 - City and Lamar entered into a settlement agreement. Lamar got to keep 8 boards, removed the remainder. City required to review sign code every 6 months. 2004 - Lamar suggested changes to sign code. 2005- Lamar billboard at 252 Miracle Strip Pkwy was damaged in Hurricane Ivan. Lamar requested to rebuild the sign. That permit application was denied based on terminology of the settlement agreement. The Agreement specifically allows Lamar to " maintain and operate" the eight boards. Chapter 479 of Florida Statutes defines the term " maintain." " Maintain" means " to allow to exist." Section 14- 10. 007( 4), Florida Administrative Code, specifically states that a sign may not be disassembled and re- erected at the same location unless the nonconforming sign meets the criteria set forth in section 14- 10. 007( 6). The damaged board did not meet the criteria in section 14- 10. 007( 6). 2006-- Current Code prohibits billboards. Section 12. 82. 06, Off Premises Signs, states " an off- premises sign is an outdoor sign which advertises or directs attention to an establishment, business, merchandise service, commodity, attraction or entertainment that is sold, produced, manufactured or furnished at a place other than the property on which the sign is located. This type of sign is prohibited. Such signs include, but are not limited to, signs commonly known as billboards. " Request motion by Council to handle this matter in one of three ways: 1. Do nothing. 2. Allow Lamar Inc. and Staff to present argument for and against the proposed Modification to Settlement Agreement at next regular Council meeting. Council would then move to accept either Staff's or Lamar' s argument/ suggested revisions. All three parties would work out the settlement terms at that public hearing. 3. Defer the suggested proposed Modification Agreement to the next Sign Code Review session and handle it as a legislative matter with due public notice and hearing. The attached documents are not attorney- client privileged and are a matter of public record. 244 Racetrack Rd NE Fort Walton Beach FL 32547- 1866 Classroom: 2264 HWY 87 Navarre FL 32566- 3215 850) 243- 6969 ( 850) 936- 4269 Fax: ( 850) 244- 8929 Email: toni@tlcpa.gccoxmail.com  IN THE CIRCUIT CpURT OF THE FIRST JUDICIAL CIRCUIT IN AND FOR OKALOOSA COUNTY, FLORIDA LAMAR TEXAS LIMITED PARTNERSHIP d/b/ a LAMAR ADVERTISING OF FORT WALTON, Plaintiff: CASE NO. 00-202- CA VS. CITY OF FORT WALTON BEACH, Defendant. I SETTLEMENT AGREE:MENT Plaintiff, LAMAR TEXAS LIMITED PARTNERSHIP d/b/ a LAMAR ADVERTISING OF FORT WALTON ( hereinafter " Lamar"), by and through its undersigned attorney, and Defendant, CITY OF FORT WALTON BEACH (hereinafter City"), by and through its undersigned attorney, hereby jointly stipulate and agree to enter into this Settlement Agreement of the above- styled cause of action as follows: 1. Lamar and the City shall execute the Joint Motion (copy attached hereto, hereinafter " Joint Motion") and file the same with the First District Court of Appeal in Case No. IDOO- 2487..  2. Upon entry of an order by the 1 st D. C. A. granting the relief set forth in the Joint Motion, and the approval and ratification of this Settlement Agreement by the Circuit Comi, Lamar and the City stipulate and agree as follows: . a. Eight billboard structures owned by Lamar are located on Federal- Aid Primary Highways (" FAP Structures''), and eight billboard structures owned by Lamar are located on non- federal- aid highways. The non- federal- aid highway structures are identified on Exhibit " A" attached hereto. The FAP Structures are identified in Exhibit B'' attached hereto. st b. Within 90 days from the hLter of, (i)the date the 1 D. C. A. grants the relief referenced in paragraph 2 above, or eii) the date the Circuit Court approves and ra~ fies this Settlement Agreement, Lamar shall remove the eight billboard structures identified on Exhibit " An which are located on non- federal- aid highways. c. Lamar' s eight billboard stIUctures located on FA:P highways Exhibit <' B") are subject to the provisions of g479. 15( 2), Fla. Stat. (2001), as that section is presently worded; provided,however, that nothing contained herein shall be construed to contractually require the City' s compliance with that statutory provision if it is subsequently repealed or amended. d. ' Lamar shall promptly dismiss with prejudice, or cause to be dismissed with prejudice, the following pending litigation styled as: Brown. Brown & Brown. et aI. v. City of Fort Walton Beach, Florida, Case No. 00- 2763- CA, in the Circuit Court of the First Judicial Circuit in and for Okaloosa County, Florida; and R Christensen S& D Root, et at v. Municipal Code Enforcement Board of the City of Fort Walton 2 Beac~ F1ori~ Case Numbers 00- 2527- CA through 00- 2534-CA, challenging the City' s Sign Code and the implementation of the Sign Code. Lamar shall indemnify, defend and hold the City harmless from any claim, loss or judgment of any kind, including attorneys' fees and costs, resulting from or incurred in the following .pending litigation styled as: Brown. Brown & et al. v. City of Fort Walton Beach. Brown., Case No. 00- 2763- Florida.. CA, in the Circuit Court of the First Judicial Circuit in and for Okaloosa County, Florida; and R: Christensen & S & D Root, et al v. M1.111icipal Code Enforcement Board of the City of Fort Walton Beach, Florida, Case Numbers 00- 2527- CA through 00- 2534- CA, in the event Lamar fails to dismiss or cause the dismissal of said litigation as provided herein. e. . The City shall dismiss with prejudice, and vacate and waive any fines or penalties which have accrued ~ all pending Code Enforcement proceedings involving any of the sixteen structures identified in Exhibits " A" and ''E'' attached hereto. 3. Lamar agrees to release the City from any claim which it had, or now has, that the City' s Sign Code, including, without limitation, Ordinance 772, as amended by Ordinance 981, as amended by Ordinance 1050, as amended by Ordinance 1129, as amended by Ordinance 1133, as amended by Ordinance 1452 (hereinafter collectively the City' s Sign Code''), violates any laws or constitutional provisions of the United States or the State of and further agrees to release the City from any claim that the City' s Florida., Sign Code was not enacted in accordance with applicable Florida law; provided, however, the parties expressly acknowledge, stipulate and agree that Lamar is not waiving or releasing any claim that it may now have, or in the future have, for a violation of 479. 15( 2), FIa. Stat Moreover, Lamar agrees to release Fort Walton and to waive any 3 claUD. Lamar may have in the future to challenge the validity or enforceability of any amendment to the City' s.Sign Code under any law or constitutional provision of the United States or the State of Florida; provided, however, notlring contained herein shall limit or restrict Lamar' s right to challenge the validity or emorceaqility of any amendment to the City' s Sign Code, which adversely affects Lamar' s billboards or the messages which Lamar can display on its billboards. . 4. umaT shall be entitled to maintam and operate its eight billboard structures identified in Exhibit " B" attached hereto pursuant to the provisions of Chapter 479, Fla. Stat., and Chapter 14- 10, Florida Administrative Code. 5. Each party shall be responsible for paying its own attorneys' fees and costs incurred in this proceeding. 6. This Settlement Agreement shall be submitted to the Circuit Court in and for Okaloosa County, Florida, for approval and ratification, pursuant to the provisions of Rule l. S40(b)( S), Fla.R.Civ.P. 7. In the event the 1st D. C.A. refuses to grant the relief set forth in the Joint Motion, or in the event the Circuit Court fails or refuses to approve and ratify this Settlement Agreement, this Settlement Agreement shall be rendered null and void. st 8. In the event the 1 D. C. A grants the relief set forth in the Joint Motion, and the Circuit Court ratifi.es and approves this Settlement Agreement, the Circuit Court shall retain jurisdiction over the parties for the purpose of enforcement and compliance with the provisions. of this Settlement Agreement. In the event of litigation to enforce or interpret this Settlement Agreement, the prevailing party shall be entitled to an award of its 4 Municipal Code Enforcement Board of the City of Fort Walton Beach. F1orid~ Case Numbers 00-2527- CA through 00- 2534- CA, by ~ d through their undersigned attorney, for and in consideration of ten- dollars ($ 10. 00) and O. V. c., the receipt and sufficiency of which is hereby acknowledged, hereby join in this Settlement Agreement for the purposes of dismissal of the aforementioned cases pursuant to the provisions of this Settlement Agreement.- By. ~ 4 c! -:/ Robert A. Emmanuel, Esquire 6 7""'--"-."--'-'. - .-----.. 1" F~ rjh,' " r, Jh .... h~ ...;;;,"-