David v. City of Dunedin
| Decision Date | 07 August 1985 |
| Docket Number | No. 84-1569,84-1569 |
| Citation | 473 So.2d 304,10 Fla. L. Weekly 1933 |
| Parties | 10 Fla. L. Weekly 1933 James C. DAVID, Eric Zimmerman and McDonald's Corporation, d/b/a McDonald's Corporation, a Delaware corporation (as successor in interest by merger to Franchise Realty Interstate Corporation, formerly an Illinois corporation), authorized to do business in the State of Florida, Appellants, v. CITY OF DUNEDIN, Florida, a municipal corporation of the State of Florida; and Mary Bonner, John Cella, David F. Ramsey, Donald Shaffer, and Manuel G. Koutsourais, as Mayor and City Commissioners, respectively; and Parwez Alam, as City Manager; Gilbert Levy, Allen Bomstein, Rod Collman, Vincent Crawford, Norman Lancaster, Mary Jane Pfost, and Deborah Kynes, as members of the Code Enforcement Board of the City of Dunedin, Florida; and Jack Wynne, as Sign Code Inspector of the City of Dunedin, Florida, Appellees. |
| Court | Florida District Court of Appeals |
H.H. Baskin, Jr., of Law Offices of Baskin & Bennison, Clearwater, for appellants.
J. Michael Hussey of Frazer & Hubbard, P.A., Dunedin, for appellee Code Enforcement Bd.
Robert J. Kelly of Brandt & Kelly, Dunedin, for appellee City of Dunedin, Florida.
Appellants, plaintiffs below, appeal a nonfinal order denying their notice and application for a temporary injunction which sought to restrain appellees from enforcing a sign ordinance. We hold that the ordinance under which appellants were cited was not adopted in accordance with the applicable statutes; therefore, we reverse the trial court's order and remand with directions to issue the injunction.
Appellants erected a "Golden Arches" sign structure and other customary McDonald's Hamburgers signs on April 21, 1971. On July 10, 1972, the City of Dunedin enacted Ordinance No. 72-25, which down-zoned the permitted sign code uses in plaintiffs' business zone. The allowable sign area was reduced from 339 to 108.5 square feet, and the allowable height of the ground-mounted "Golden Arches" was reduced from 22 to 20 feet. Appellants have asserted that their sign and structure became nonconforming uses according to law.
Ordinance No. 72-25 contained an amortization and removal provision which allowed owners of such grandfathered signs five years from July 10, 1972, to bring the signs into compliance with the sign code. This provision was retroactively amended by Ordinance No. 77-48 () on October 3, 1977. The amendment allows owners of grandfathered signs six years from July 10, 1972 (passage date of Ordinance No. 72-25), within which to remove any nonconformities.
Ordinance No. 77-48 repealed the sign area measurement requirement of former Ordinance No. 72-25 and adopted a slightly larger measurement based upon 1 3/4 square feet rather than 1 1/2 square feet allowable sign area for each lineal foot of building, not to exceed 200 square feet of total sign area.
On May 23, 1984, the city sign inspector noticed appellants and cited them for alleged violations of the Dunedin Sign Code based upon the fact that the amortization period allowed by section 3-24 of the code had expired. Because the entire sign area at appellants' restaurant exceeded the allowable area and height permitted in the business zone, the inspector gave appellants until June 6 within which to remove the same. Appellants failed to comply with the notice. The Dunedin Code Enforcement Board issued its citations for appellants to appear at its enforcement hearing on July 11, 1984.
On July 5, appellants filed appeals of the inspector's notice of violation to the Sign Code Board of Appeals and the Board of Adjustment and Appeals. Both of these appeals were based upon an allegation that the inspector erred in determining that appellants were in violation of the specific code provisions he cited on May 23, 1984. Each of these appeals stayed any action before the Board.
On July 10, 1984, appellants sought to restrain the enforcement hearing by filing suit for injunction in circuit court. Paragraphs nine and seventeen of appellants' sworn complaint for injunction were a general attack upon the validity of the adoption of Ordinance No. 77-48. Appellants' proof before the trial court established without objection or contradiction, that neither Ordinance No. 72-25 nor No. 77-48 had been legally adopted in accordance with sections 166.041(3)(c)(1) and (2), Florida Statutes (1977) (formerly sections 176.05 and .06, Florida Statutes (1971)).
The trial court refused to restrain the Board and denied the temporary injunction. The order was entered on July 11, prior...
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...is null and void because the City failed to follow the mandatory notice requirements of Section 166.041(3)(a). See David v. City of Dunedin, 473 So.2d 304 (Fla. 2d DCA 1985); Fountain v. City of Jacksonville, 447 So.2d 353 (Fla. 2d DCA In view of our finding that Ordinance Number 2763 is vo......
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