Okaloosa County BOCC — July 2, 2013 — Exhibit 2 (2) — reading text

EXHIBIT IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, IN AND FOR OKALOOSA COUNTY, FLORIDA TIMBERVIEW HELICOPTERS, INC., CASE NO. 2012 CA 002830 a foreign corporation; and DESTIN HELICOPTER SERVICES, LLC., a Florida limited liability company, Plaintiffs, vs. OKALOOSA COUNTY, Defendant. ORDER THIS CAUSE having initially come before the Court on the Verified Emergency Petition for Temporary Injunction filed by Timberview Helicopters, Inc., and Destin Helicopter Services, LLC, and pursuant to that Petition, this Court entered an Order on June 26, 2012, granting an emergency temporary injunction without notice. Within that Order, this Court also scheduled a hearing for June 28, 2012, at 9:00 a.m., on the continued application of the temporary injunction. Plaintiffs and Defendant appeared at the hearing, each represented by counsel, and testimony and evidence, as well as argument of counsel were presented. The temporary injunction was extended until July 3, 2012 at 9pm in order to allow the parties time to submit proposed orders for consideration by the Court and for the Court to rule on this matter. The Court having considered the testimony and evidence presented and the argument of counsel, makes the following findings and conclusions of law. Findings of Fact Plaintiffs’ are operators of helicopter sight-seeing tours. Plaintiffs have been operating since August 2011 from the parking lot of Destin Commons in Okaloosa County, which was leased from the owner of that property, Destin Commons Expansion Limited Partnership. The Destin Commons property is located on the intersection of US 98 and SR 293, and is zoned general commercial under the County’s Land Development Code (“LDC”). Although Destin Commons had applied to amend its development order to add an amusement area on its grass mall, and later applied for the amusement area to include a skating rink, at the time Plaintiffs began their operations, no application had been made to amend the development order to add the helicopter rides. At the time the operations began, the County’s Growth Management Department had not approved the helicopter tour operations from this location, and no specific complaints were received. In addition, Plaintiffs had not received approval from the Florida Department of Transportation (“FDOT”) for the operations. Although Timberview’ had a Letter of Authorization (“LOA”) from the Federal Aviation Administration (“FAA”), the FAA had not inspected this location for the helicopter tours at that time. By February 2012, the County’s Growth Management Department had received complaints regarding the helicopter sight-seeing tours being operated from Destin Commons. At that time, a meeting was held between representatives of Growth Management and the Plaintiffs. Plaintiff's were notified that they needed an amendment to the development order and modified ' Only a representative of Timberview Helicopters, Inc. testified at the hearing in this cause, and it is unclear how many of these facts apply to Destin Helicopter Services. However, for purposes of this order only, it is assumed that Destin Helicopter Services also operates in the same manner, 2 ‘There was no evidence whether Destin Helicopter Services, Inc. had a Letter of Authorization from the FAA. 2 site plan in order to have the helicopter operations from this site, and Plaintiffs indicated they would cease operations from this site. However, helicopter sight-seeing tours continued from this location, and the County received complaints, On April 13, 2012, County Code Enforcement issued a code enforcement violation on site. The corrective action required was to “Cease and desist. Do not operate until all licensures and permits are obtained and Okaloosa County is satisfied.” In order to get the proper approvals, the applicant would have to file for an amendment. Once applied for, the County’s Growth Management Department would determine whether the amendment was a major or minor modification, as that is defined by section 1A.02.07 of the LDC. In this case, Growth Management determined this was a major modification. Major modifications are reviewed under the procedures for a new application, and therefore, is a longer process than a minor modification. Because the owner of Destin Commons was intending to proceed with an expansion of that property, the owner, as applicant for the amendment to the development order, determined not to pursue the major modification. Also at this time, Plaintiffs had discovered that in order to get FDOT approval for a permanent location for their helicopter landings and take-offs, they ’Section 14.02.07, LDC, reads in part as follows: 1. Minor modifications are slight variations or alterations to the site plan such as a shift of a building footprint (that does not violate setback requirements or require the reduction in buffering or landscaping provided), deletion of excess parking spaces, an increase of ten percent or less of gross floor area that does not increase the amount of impervious surface area, a realignment of an internal road that does not affect off-site traffic circulation or affect ingress or egress from any public or private right-of-way, or other changes which cannot reasonably be expected to cause a change in the functioning of the site or its off-site impacts. 2. Any modification that cannot be deemed by the planning official as a minor modification shall be deemed a major modification, Such changes shall be reviewed in the same manner as a new application. 3 would have to wait 45 days to resume operations. Accordingly, it was determined by Plaintiffs to proceed with an application for a temporary use from both FDOT and the County. Pursuant to statute, a temporary airport is valid for less than 30 days, and is not renewable. In addition, only 10 operations are allowed per day. §§ 330.27, 330.30, Fla. Stat.; see also Fla. Admin. Code Rs. 14-60.005, 14-60.006. In addition, the Destin Commons site would only be available to Plaintiffs until August 2012, before the intended expansion of that development. As such, Plaintiffs have leased or are intending to lease a second site near Lowes (“Lowes site”). They planned on applying for a temporary use and to develop the location to use permanently. However, no application for helicopter sight-seeing operations regarding the Lowes site is pending before the County. After the Destin Commons site was inspected by the FAA, and after approval of the temporary use of the Destin Commons site from the FDOT, the owner of Destin Commons applied for a temporary use from the County for the helicopter sight-seeing tours on May 25, 2012. The temporary use time period applied for was from May 25, 2012 through June 24, 2012. On that same date, May 25, 2012, the temporary use permit was issued by the County. In addition to the Plaintiffs’ helicopter sight-seeing tours, the County had also received an application for helicopter sight-seeing tours from another entity to operate near the Long Horn Steakhouse. Although the County’s LDC allows for this type of use on general commercial property, it does not provide other controls specific to helicopter tours. In addition, the applications for this use were being made in areas that were densely populated and highly traveled areas of the County. Further, this type of operation is also regulated at the federal and state level, and the Growth Management Department was siudying these regulations in an effort to understand their interaction with the County’s requirements. Based on this new interest in this type of operations within the community, and in an effort to provide for the safety, health, and 4 welfare of the community, the County considered an Emergency Ordinance to place a moratorium on new applications for development approval, including temporary use permits, for helicopter sight-seeing tour operations, in order to study and analyze the LDC and other regulations and requirements of law regarding these types of operations. At an advertised public meeting of the Board of County Commissioners on June 19, 2012, the Board determined there was an immediate need to further study the LDC and other regulations and requirements of law and that it is necessary to adopt a temporary moratorium as an emergency ordinance pursuant to section 125.66, Florida Statutes. The temporary moratorium approved was for a period of 180 days. In addition, the Board specifically found that an emergency exists requiring immediate enactment, and approved the Emergency Ordinance by a four-fifths vote, as required by statute. After the Emergency Ordinance was approved, Plaintiffs were allowed to continue operations from Desiin Commons under its temporary use permit, until its expiration on June 24, 2012. However, the County would not agree to accept any new applications from Plaintiffs for any additional temporary use permits or for locating their operations permanently. Because the temporary use permit from the County and the FDOT expired on June 24, and because no additional applications for temporary use or for a more permanent operation on either the Destin Commons or Lowes sites had been filed and approved, it is the County’s position that Plaintiffs have no additional ability to keep operating at either location. In response, Plaintiffs filed this action, requesting a temporary injunction. ‘against the County, Based on the Verified Petition filed, this Court granted the temporary injunction until a hearing could be held on June 28, 2012, and allowed operations until this time. At the hearing, the Court extended the temporary injunction until July 3, 2012 at 9 pm, to allow time for the parties to submit proposed orders and for the Court to rule Conclusions of Law "|The issuance of a preliminary injunction is an extraordinary remedy which should be granted sparingly, [and] which must be based upon a showing of the following criteria: (1) The likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of public interest." Hadi v. Liberty Behavioral Health Corp., 927 So. 2d 34, 38 (Fla. Ist DCA 2006). “Because the entering of a temporary injunction is an extraordinary remedy, strict compliance with the provisions of tule 1.610 is required. See Florida Water Servs. Corp. v. Blue Stone Real Estate Constr, 747 So. 2d 406 (Fla. 5th DCA 1999). The appellate courts have held that compliance with the rule requires the trial court to set forth sufficient factual findings to support each of the criterion that must be established to entitle the party to a preliminary injunction.” Yardley v. Albu, 826 So. 2d 467, 470 (Fla. 5th DCA 2002). “The primary purpose of entering a temporary injunction is to preserve the status quo pending the final outcome of a cause. . . . The status quo which will be preserved by a preliminary injunction is the last, actual, peaceable, uncontested condition which preceded the pending controversy." Yardley v. Albu, 826 So. 2d 467, 470-471 (Fla. Sth DCA 2002) (citation omitted). Procedurally, a temporary injunction is not proper in this case. A temporary injunction cannot be granted in the absence of a request for permanent relief. International Village Association, Inc. v. Schaaffee, 786 So, 2d 656 (Fla. 4th DCA 2001); Connolly v. Connolly, 448 So. 2d 641 (Fla. 4th DCA 1984); see also City of Miami Beach v. Swedroe, 788 So. 2d 404, 405 (Fla. 3d DCA 2001). “Allowing a preliminary injunction to issue in the absence of a pending request for ultimate relief would be contrary to the purpose behind temporary injunctions; " maintaining the status quo until the merits of the dispute can be resolved at a final hearing.” 6 Internatiterg! Village Association, 7 Petition ks -Temporary Injunction temporatpinjunction. Accordin; injunctio,jts In addition, because authorizemins for their operations, to