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

contiimp: their operations thro injunctio(f]may only preserve the s DCA 201 - A aio the substance of Pla asserted ;atche hearing they do not to studysy d analyze the LDC an seeing Ondettions, the Plaintiffs dc emergen, gprocedures of section moratori on their operations. Tr ‘T, F]/ Emergency Ordinance Statutes,dinovides the statutory pro: making }s syers pursuant to Article gives the | Qneral rule that notice of prior to yn ¢gular or special meetin county. ere wever, section 125.66 is a fourry ths vote of the Board c and the :ergnediate enactment of * Sectioran25.66(3), Florida State resoluticyjorhall be enacted which ¢ So. 2d at 658. In this cana Plaintiffs’ Verified Em86 ‘ency 2s not request any periforient relief, but only as dofor a this Court has no zy \ority to grant the tezly,orary ‘laintiffs do not haven. 1 of the proper perm P and re is no ability of this Gtiort to grant Plaintiffs pethession 1 this petition for temuerary injunction, as teuglrary is quo, Yardley v. Albis 26 So. 2d 467, 470-71 tatu. Sth 92) ffs’ request for tempons t injunction, although Fintiatiffs ect to the County’s impat tion of a temporary moobprium ther requirements of |: an-regarding the helicoptd cight- yject to the temporary perratorium’s enactment w obr the 5.66(3), Florida Statutcy and to the applicatio: 12f the : issues will each be addumsed in turn. lese 3 properly enacted by the Board. Section 125,66,waorida ural requirements for ci preties to exercise their orcedance- II, s.1, Florida Constitipova. Subsection (2) of thi VEatute ent to consider an ordin’ gee must be given at leas{ int days ¥y publication in a newa ter of general circulatiog tn the rovides a waiver from tHonotice requirements wh’) pthere ‘ounty Commissioners ~fiflaring that an emergenof Gxists ordinance is necessarim In this case, the Enthegency ; Specifically providesn ht “no emergency ordittesce or blishes or amends the en sial zoning map designa:sta of a 7 Ordinance adopted by the Board imposing a temporary moratorium on applications for development approval of helicopter sight-seeing tours specifically provided that the County has determined “there is an immediate need to further study and analyze the land development code and other regulations and requirements of law regarding the operations and proper location of facilities for helicopter sight-seeing tours” and that the Board “finds that it is necessary to adopt a temporary moratorium as an emergency ordinance pursuant to section 125.66, Florida Statutes, as an emergency exists and immediate enactment of the ordinance is necessary to study and analyze the above.” The courts have recognized that whether or not an emergency exists as to warrant the emergency cnactment procedures rests in the judgment and discretion of the local government, and its judgment in this regard is presumptively valid. Speer v. Olson, 367 So. 2d 207, 213 (Fla. 1978); Lifschitz v. City of Miami Beach, 339 So. 2d 232 (Fla. 3d DCA 1976); Additionally, the Board adopted the Emergency Ordinance by a 4-0 vote, with one Commissioner being absent from the meeting. Thus, the requirement of a four-fifths vote was met. (See Ex. N to Verified Emergency Petition for Temporary Injunction). Accordingly, the enactment of the Ordinance under the emergency enactment procedures of section 125.66(3), Florida Statutes, was proper, and the County complied with the procedural requirements of that statute. Further, the imposition of a temporary moratorium is a proper land-use tool that promotes effective planning and preserves the status quo during the planning process to ensure problems parcel or parcels of land or changes the actual list of permitted, conditional, or prohibited uses within a zoning category.” The Emergency Ordinance at issue in this case does not fall under this specific prohibition. However, any subsequent ordinance that the County may choose to enact after studying the issue during the moratorium period which “changes the actual list of permitted, conditional, or prohibited uses in a zoning category” regarding helicopter sight-seeing tours could not be enacted under the emergency procedures, 8 are not exacerbated during the time it takes to formulate a regulatory scheme. Tahoe-Sierra Pres. Council vy. Tahoe Reg'l Planning Agency, 535 U.S. 302, 337-338 (U.S. 2002); WCI Communities, Inc. v. City of Coral Springs, 885 So. 2d 912 (Fla. 4th DCA 2004): Leon County v. Gluesenkamp, 873 So. 2d 460 (Fla. 1st DCA 2004); Bradfordville Phipps Limited Partnership v. Leon County, 804 So. 2d 464 (Fla. Ist DCA 2001). The moratorium is also imposed for a reasonable duration of 180 days. This is not questioned by Plaintiffs. The County has also properly interpreted the temporary moratorium as applying to Plaintiffs. Neither Plaintiff has ever submitted an application to the County regarding helicopter operations. Only the owner of Destin Commons has ever applied for such a use. Under the Temporary Use Permit granted to the owner of Destin Commons for the time period May 25, 2012 through June 24, 2012, Plaintiffs were allowed to operate the helicopter sight-seeing tours. However, once this temporary use permit expired at both the FDOT level and the County level, Plaintiffs had no further right to operate, as neither Plaintiff has submitted any additional applications for temporary use or for permanent location at either the Destin Commons site or the Lowes site, and no approvals have been given. Accordingly, Plaintiffs have no current lawful ability to operate their helicopter sight-seeing tours from either the Destin Commons or the Lowes sites. | The Emergency Ordinance establishing the temporary moratorium for applications for development approval regarding helicopter sight-seeing tours is properly applied to Plaintiffs, : Plaintiffs have failed to show a legal right to a temporary injunction in this cause. ACCORDINGLY, IT IS ORDERED AND ADJUDGED: The Emergency Ordinance enacted by the County on June 19, 2012, adopting a temporary moratorium for the acceptance of applications for development approval of helicopter sight-seeing tours was validly enacted, and applies to Plaintiffs. 9 Further, this Court has no authority to enter a temporary injunction where, as here, there is no underlying action or no request for permanent relief. The temporary injunction imposed pursuant to the Order of this Court dated June 26, 2012, and extended until July 3, 2012, is hereby dissolved, and the Verified Emergency Petition for Temporary Injunction is dismissed. 4 = DONE AND ORDERED in Chambers in Fort Walton Beach, Florida, this day of July, 2012. / one 2 henge Honorable Thomas T. Remington Circuit Court Judge I hereby certify a true copy of the foregoing has been provided to the following addressees: Elizabeth J. Anderson, Esquire Kellie E. Tomeo, Esquire The Anderson Legal Group, LLC 121 S. Orange Avenue, Suite 920 Orlando, Florida 32801 Gregory T. Stewart, Esquire Carly J. Schrader, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 DON HOWARD, Clerk of Court By: Deputy Clerk 10