A dodgy developer wants to turn our DOW MUSEUM OF HISTORIC HOMES into thirty (30) $500/night hotel rooms -- inflicting an illegal hotel/bar 164 feet from an elementary school, ruining our Old City South historic neighborhood and its sacrosanct HP-1 zoning.
The dodgy developer, DAVID BARTON CORNEAL and his OLD ISLAND HOTELS, INC., have made substantial modifications to the proposed DOW Planned Unit Development (DOW PUD), now apparently requiring another newspaper legal advertisement and a new First Reading. See below.
In addition, City of St. Augustine building inspector Will Franke died on August 17, 2015 and there is apparently no one to take his place to answer questions from City Commissioners at the August 24, 2015 public hearing on the proposed DOW Planned Unit Development (DOW PUD). See below.
-----Original Message-----
From: easlavin
To: nshaver
Sent: Thu, Aug 20, 2015 12:20 pm
Subject: Please Consider Deleting DOW PUD From August 24, 2015 Agenda and Direct New Published Notice and New First Reading of DOW PUD
Dear Mayor Shaver, Vice Mayor Horvath, and Commissioners Freeman, Sikes-Kline and Neville:
1. Please consider a vote to modify the agenda for the August 24, 2015 City Commission agenda to delete the DOW PUD Second Reading and to direct staff to advertise a new First Reading.
2. "Substantial" and "material" changes to the proposed DOW PUD on August 9, 2015 invoke Florida Attorney General Opinion AGO 82-93 and F.S. 166.041(3)(a), requiring both a new Published Notice and a new First Reading of the DOW PUD. Please see below.
3. Voting on the substantially and materially modified DOW PUD on August 24, 2015 might void any DOW PUD and constitute reversible error. Please see below.
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
www.staugustgreen.com
904-377-4998
-----Original Message-----
From: easlavin
To: ilopez
Sent: Thu, Aug 20, 2015 5:54 pm
Subject: Re: Florida Attorney General Opinion (AGO 82-93) and F.S. 166.041(3)(a) Require New Published Notice and New First Reading of DOW PUD, Correct?
Dear Ms. Lopez:
1. I take it you have found no authority allowing Commissioners to take action on a Second Reading on the DOW PUD on August 24, 2015 in light of the substantial modifications to the proposed PUD, correct?
2. "Substantial" and "material" changes to the proposed DOW PUD on August 9, 2015 invoke Florida Attorney General Opinion (AGO 82-93) and F.S. 166.041(3)(a), requiring both a new Published Notice and a new First Reading of the DOW PUD, correct?
Thank you!
With kindest regards, I am,
Sincerely yours,
Ed
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
www.staugustgreen.com
904-377-4998
-----Original Message-----
From: easlavin
To: ilopez
Sent: Thu, Aug 20, 2015 11:59 am
Subject: Florida Attorney General Opinion (AGO 82-93) and F.S. 166.041(3)(a) Require New Published Notice and New First Reading of DOW PUD, Correct?
Dear Ms. Lopez and Ms. May:
1. "Substantial" and "material" changes to the proposed DOW PUD on August 9, 2015 invoke Florida Attorney General Opinion (AGO 82-93) and F.S. 166.041(3)(a), requiring both a new Published Notice and a new First Reading of the DOW PUD, correct?
2. The "substantial" and "material" changes to the controversial DOW PUD include valet parkers taking cars through Lincolnville nearly one-half mile to the Masonic Lodge.
3. The valet parking deal is a last-ditch effort to save a misbegotten proposal by to inflict an illegal bar/hotel in HP-1, some 164 feet from Cathedral Parish School.
4. The project involves 30 nightly rentals in our former state-funded former Dow Museum of Historic Homes (recipient of $2.1 million in scarce state historic preservation money to the Daytona Museum).
5. This project would adversely affect our City and both the Old City South neighborhood and an elementary school.
6. The "developer," who calls himself a "conservationist," has hired our former Vice Mayor in apparent violation of F.S. 112.313(14) to lobby City officials.
7. The "developer" has also hired our fired former Planning and Building Director and two of five members of our Historic Architectural Review Board, and the granddaughter of our former Police Chief
(who organized a noisy crowd in support of the project, intimidating board members and citizens, including me -- the "developer" referred to his noisy new friends on WFOY radio yesterday as the "Minorcan mafia!")
8. The "developer" has made materially false and misleading statements to obtain a waiver of an architectural fee for 102 Bridge Street on May 7, 2014, threatening not to close on his purchase of City property.
9. Our Building Inspector's unsolved death on August 17 (three days ago) means we may have no one qualified to review building plans or testify before the City Commission at any August 24, 2015 Second Reading.
10. The proposed changes to the DOW PUD are "substantial" and "material" changes, correct?
11. Failure to provide the necessary seven-day newspaper Notice and new First Reading would be reversible error and thus render the DOW PUD "void," correct?
Thank you!
With kindest regards, I am,
Sincerely yours,
Ed
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
www.staugustgreen.com
904-377-4998
Number: AGO 82-93
Date: October 29, 1982
Subject: Amending and reading of proposed ordinance
Mr. Samuel M. Peek
City Attorney
City of Valparaiso
92 Eastview Avenue
Post Office Box 147
Valparaiso, Florida 32580
RE: MUNICIPALITIES--Substantial changes in proposed ordinances during adoption process require process to start anew
Dear Mr. Peek:
This is in response to your request for an opinion on the following questions:
1. If changes are made in a proposed ordinance upon the second reading of the ordinance, is the city required to have another reading of the ordinance following the reading in which changes were made?
2. Must the city renotice the adoption of the ordinance in a newspaper of general circulation if changes are made in the ordinance at the second reading?
3. Does the second reading of the ordinance have to be identical to the first reading of the ordinance?
4. If changes are made in the ordinance at the first reading of the proposed ordinance, is the city commission required to have two subsequent readings of the proposed ordinance?
Since your questions are interrelated, they will be answered jointly.
Your inquiry notes that, on numerous occasions, the City Commission of Valparaiso has found it necessary to make changes in proposed ordinances during the enactment process. You also note that the changes made at both the first and second readings of an ordinance are usually small modifications, but that on occasions substantial changes are made to a proposed ordinance.
It is appropriate to interject here that a determination whether any change to a proposed ordinance during the enactment process is substantial or not is a question of fact or mixed question of fact and law which our office is not empowered to determine. See , Statement of Policy Concerning Attorney General Opinions, Annual Report of the Attorney General, 1980, at p. viii. Compare , Farnsley v. Henderson, 240 S.W.2d 82 at 84 (Ct.Ap. Ky. 1951) (holding that what constitutes a material or substantial change in an ordinance between first consideration and enactment is dependent upon the circumstances of each case).
Subsection (1)(a) of s. 166.041, F.S., defines "ordinance" for the purposes of that section as "an official legislative action of a governing body, which action is a regulation of a general and permanent nature and enforceable as a local law." See also, AGO 075-171. Section 166.041 generally sets forth the procedures for adoption of ordinances, s. 166.041(6) specifically providing that:
"The procedure as set forth herein shall constitute a uniform method for the adoption and enactment of municipal ordinances and resolutions and shall be taken as cumulative to other methods now provided by law for adoption and enactment of municipal ordinances and resolutions. By future ordinance or charter amendment, a municipality may specify additional requirements for the adoption or enactment of ordinances or resolutions or prescribe procedures in greater detail than contained herein. However, a municipality shall not have the power or authority to lessen or reduce the requirements of this section or other requirements as provided by general law." (e.s.)
See , AGO's 081-32; 075-173; 074-371 (concluding that this statute provides a uniform method for the enactment of municipal ordinances unless a municipality has adopted more stringent requirements subsequent to the effective date of s. 166.041).
Subsection (3)(a) of s. 166.041 sets forth this uniform method:
"Except as provided in paragraph (c), a proposed ordinance may be read by title, or in full, on at least 2 separate days and shall, at least 7 days prior to adoption, be noticed once in a newspaper of general circulation in the municipality. The notice of proposed enactment shall state the date, time, and place of the meeting, the title or titles of proposed ordinances, and the place or places within the municipality where such proposed ordinances may be inspected by the public. Said notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance." (e.s.)
In City of St. Petersburg v. Austin, 355 So.2d 486 (2 D.C.A. Fla., 1978), the court interpreted subsection (3)(a) as imposing a mandatory reading requirement in the enactment of municipal ordinances, with municipalities having a choice of reading the proposed ordinance by title or in full. Moreover, by the plain meaning of the language "shall . . . be noticed . . . in a newspaper . . ." it is apparent that the notice or publication provision is mandatory also. Thus, both the reading and notice provisions of this section should be regarded as mandatory. See also, 62 C.J.S. Municipal Corporations s. 418(a).
However, my research has revealed no Florida appellate decisions which are germane to the specific issues raised by your inquiry, nor have I found any cases which interpret s. 166.041(3)(a) in these particular areas. But, there are other authorities which treat the issues raised by your letter. 5 McQuillin, Municipal Corporations s. 16.87, states that while there may be a change in details through which the purpose of an ordinance is manifested, the original general purpose of a measure cannot be changed by amendment on passage. Thus, amendments can be made during passage of an ordinance when the amendment is not one changing the original purpose, but a material amendment, one going to the substance of the ordinance, cannot be made during the very meeting at which the ordinance is passed. See , B. and B. Vending Co., v. City of El Paso, 408 S.W.2d 545 (Ct. Civ. App. Tex. 1966) (holding that amendments to a city ordinance between first and second readings were not so substantial as to make the final draft a "new" ordinance); Jefferson v. City of Anchorage, 513 P.2d 1099 (Alaska 1973) (holding that since amendment of a proposed ordinance did not change its basic character, and since there was no material change in the subject treated, it was not necessary to proceed as though it were a new ordinance, repeating required procedural steps). The same criteria have been applied to the notice or publication requirement in the case of ordinances substantially amended following original notice. 5 McQuillin, supra , at s. 16.88, and authorities cited therein. See also , 62 C.J.S. Municipal Corporations s. 417(b) (noting that any material or substantial difference between the ordinance originally introduced and that passed will render the ordinance void if the form in which it was finally passed was not before the governing body for the required time, but that an ordinance will not be invalidated simply because it is, when finally passed, not in the exact form in which originally introduced, provided that any changes are not substantial or material). Accord, Farnsley v. Henderson, supra.
I note in passing that notice is an elemental aspect of due process, courts having historically set forth the general principle that due process consists basically and in part of fair notice and an opportunity to be heard. In City of St. Petersburg v. Austin, supra, at 488, the Second District Court of Appeal found correct and affirmed the trial court's conclusion of law stating, inter alia, the legislative intent of s. 166.041(3)(a): "[t]he legislative intent is to give the public notice of the ordinance and to make the council itself aware of the ordinance's effect . . .."
In view of the above authorities, I must conclude that if any substantial or material changes or amendments are made during the adoption process, the enactment process mandated by s. 166.041(3)(a) must start anew, with full compliance with the reading and notice requirements contained therein. Thus, your first and second questions are answered in the affirmative, if the changes in the proposed ordinance were substantial or material; your third question is answered in the negative; your fourth question is answered in the affirmative, if the changes made were substantial or material.
In sum, unless and until legislatively or judicially determined otherwise, it is my opinion that if any substantial or material changes or amendments are made during the process of enacting a municipal ordinance, the enactment process mandated by s. 166.041(3)(a) must begin anew with full compliance with the reading and notice requirements contained therein.
Sincerely,
Jim Smith
Attorney General
Prepared by:
Anne Curtis Terry
Assistant Attorney General
-----Original Message-----
From: easlavin < easlavin@aol.com>
To: ilopez < ilopez@citystaug.com>
Sent: Wed, Aug 19, 2015 4:29 pm
Subject: Proposed DOW PUD Modifications at Eleventh Hour -- New Published Notice and New First Reading of PUD Required?
Dear Ms. Lopez:
1. To avoid reversible error -- due to the extent of the many eleventh hour DOW MUSEUM OF HISTORIC HOMES PLANNED UNIT DEVELOPMENT (DOW PUD) modifications -- and based upon the precedent of our City Attorney's wise prior legal counsel and advice to our City Commissioners on amending proposed ordinances, I have one question.
2. Do you agree with me that it would be reasonable for our Mayor and City Commissioners to direct the staff to re-publish a new notice of the proposed PUD and to hold another First Reading later this fall, sometime after our 450th?
Thank you.
With kindest regards, I am,
Sincerely yours,
Ed
Ed Slavin
www.cleanupcityofstaugustine.blogspot.com
www.staugustgreen.com
904-377-4998
-----Original Message-----
From: Isabelle Lopez < ilopez@citystaug.com>
To: easlavin < easlavin@aol.com>
Sent: Wed, Aug 19, 2015 4:11 pm
Subject: RE: Request No. 2015-286: Any written standard or legal advice re: when a new First Reading needed for material alteration of a PUD or other proposal
I have no responsive document.
-------- Original message --------
From: easlavin@aol.com
Date: 08/19/2015 4:04 PM (GMT-05:00)
To: Isabelle Lopez < ilopez@citystaug.com>
Subject: Re: Request No. 2015-286: Any written standard or legal advice re: when a new First Reading needed for material alteration of a PUD or other proposal
Please send. Thank you.
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