IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA LOUIS R. DOYLE, et. al., Plaintiffs, VS. Case No.: 2013 CA 006511 NC CITY OF SARASOTA, Defendant. MOTION TO DISMISS COMPLANT FOR FAILURE TO STATE A CAUSE OF ACTION The City of Sarasota, Florida, by and through its undersigned counsel, files this motion to dismiss pursuant to Fla. R. Civ. P. 1.140 (6) for failure to state a cause of action and states: BACKGROUND 1. Plaintiffs have filed a Declaratory Judgment action. 2. Plaintiffs have sued Defendant, City of Sarasota, Florida, in this Declaratory Judgment action as a result of actions taken by the City of Sarasota culminating in the ultimate denial of a development permit for a site plan (hereinafter "WalMart Site Plan") to permit the construction of a Wal--Mart store on property owned by Plaintiffs situated on Ringling Boulevard in the City of Sarasota. (P1aintiffs' Property) 3. At the time the application for the Wal-Mart site plan was filed, Plaintiffs' Property was under contract to be sold to Wa1--Ma1't, but subject to a contingency precedent to closing that the Wal--Mart site plan be approved by the City of Sarasota. 4. Wal--Mart applied to the City of Sarasota for approval to permit construction on Plaintiffs' Property in accordance with the Wal--Ma1t site plan. When Wal-Mart's application was denied by the City of Sarasota, terminated its contract to purchase the Plaintiffs' Property. 5. The written explanation of the basis for the City's denial of the Wal--~Ma1t Site Plan, as required by Sec. 166.033 Florida Statutes, is found in Resolution 13R--2337 (hereinafter "Resolution") adopted by the Sarasota City Commission. A true and correct copy of Resolution l3R--2337 is attached hereto and incorporated by reference herein as Exhibit A. 6. Plaintiffs in this action for declaratory relief seek to invalidate City Commission Resolution 13R-2337 and to thereby re-instate the approval of the Wal--Ma1t site plan by the City Planning Board (which was reversed by the City Commission). Plaintiffs likewise have previously filed a Petition for Certiorari to achieve this same result. (See, Plaintiffs' Notice of Related Case) FAILURE TO STATE A CAUSE OF ACTION 7. The Party seeking (declaratory) relief must allege that there is a bona fide, actual, present, practical need for the declaration; the declaration deals with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; the antagonistic and adverse interests are all before the court by proper process or class representation; and relief is sought is not merely giving of 2 legal advice by the courts or the answer to questions propounded from curiosity. Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So.2d 400 (Fla. 1996). 8. Paragraph 61 of the Complaint alleges that: "As a direct result of the City Commission's reversal of the (Planning Board's) site plan approval, Wal-Mart terminated its contract with Plaintiffs." The contract to which Plaintiffs refer in paragraph 61 of their Complaint is the same contract Defendant refers to in paragraphs 3 and 4 above. 9. Due to the cancellation of the contract between Wal--Mart and Plaintiffs, which provided for the sale of Plaintiffs' Property to Wa1~Mart to be developed in accordance with the Wal--Mart site plan, Plaintiffs gain nothing by the entry of a judgment in their favor reinstating the Wal-Mart site plan approval. The facts plead in the Complaint show that there is no genuine present case or controversy due to the termination of this contract. In light of the termination and cancellation of this contract, Plaintiffs are merely asking the court for an advisory opinion and have no standing to bring this action. 10. The parameters of the court's authority and jurisdiction to grant declaratory relief are set out in Sec. 86.011 and Sec. 86.021 of the Declaratory Judgment Act. Essentially, the court may render declaratory judgments on the "existence or non- existence" of any "immunity, power, privilege or right" claimed by a plaintiff or on the "existence or non--existence" of any facts upon which such claimed immunity, power, privilege or right depends. The Complaint fails to state a cause of action because it fails to allege any specific "immunity, power, privilege or right" claimed by plaintiff which is 3 disputed by the defendant. Further, the Complaint also fails to explain how the existence or non--existence of such "immunity, power, privilege or right" depends upon the resolution of disputed facts or how the resolution of disputed facts would be outcome determinative insofar as the existence of a claimed right is concerned. Any doubt, uncertainty or insecurity as to the basis for a declaratory decree must arise from facts and circumstances creating them, not merely from the state of mind or attitude of the plaintiff. Kelner V. Woody, 399 So.2d 35 (3"d DCA 1981). The special objectives of the declaratory judgment statute should not be perverted by permitting the use of the Declaratory Judgment Act to allow plaintiffs to concoct some sort of a "catch- all" remedy because no other cause of action recognized by law is available. Printing Co. v. Flowers, 154 So.2d 859 at DCA 1963). 11. To the extent that plaintiffs might attempt to contend that the Complaint states a cause of action to declare a City ordinance unconstitutionally vague because they have included the words "too vague and, therefore, legally invalid" in the second sentence of paragraph of their prayer for relief on page 20 of the Complaint, defendant counters the following: Although plaintiffs do not specifically identify the section of the City Zoning Code which they contend is "too vague and, therefore legally invalid," they do allow that they are talking about the City Code provision that is "pertaining to the method by which a review (presumably a review of the City Planning Board) can be initiated and the conduct of a public hearing before the City Commission." Accordingly, whatever ordinance plaintiffs are talking about, it is procedural in nature. The "Void for vagueness" doctrine 4 applies only to penal regulations. The challenged ordinance or regulation must be targeted at prohibited conduct and the language must, out of fairness, put people on notice as to what conduct is and is not prohibited. A statute is vague if it "fails to give adequate notice of what conduct is prohibited." S.E. Fisheries V. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla. 1984). Plaintiffs cannot state a cause of action to seek a declaration that a procedural ordinance is unconstitutionally vague. 12. To the extent that plaintiffs might attempt to contend that the Complaint states a cause of action for a violation of substantive due process because they have included the magic words "substantive due process" in paragraph of the prayer for relief, the Complaint likewise fails to state a substantive due process claim. Substantive due process essentially asks the question of whether a governmental deprivation of a person's life, liberty or property is justified by a sufficient purpose. The elements of a claim require first that there be a deprivation; second that it must be deprivation of life, liberty or property; and third, it must be shown that the government did not have an adequate justification for its action. While the Complaint alleges that plaintiffs are the owners of the property that was the subject of the Wal--Mart site plan, the facts alleged do not show that plaintiffs have been deprived of their property; nor have they been deprived of the reasonable use of their property by any City imposed regulations. Plaintiffs have been deprived only of the proceeds from the sale of the property they would have received had the Wal-Mart site plan been approved. The City's denial of a site plan to construct a Wal--Mart store on Plaintiffs' Property that was never a permitted use of the property under the applicable 5 zoning regulations in the first place, (See City Response to Petition for Certiorari) does not constitute a deprivation of property sufficient to support a substantive due process claim. Plaintiffs are in the very same position they were in prior to knowingly executing a contract for the sale of their property to Wal--Mart with a site plan approval contingency prior to sale. 13. To the extent that plaintiffs may attempt to contend that the Complaint states a cause of action for an equal protection violation because they have included the magic words "equal protection" in paragraph of the prayer for relief, no objective review of the Complaint could find factual allegations sufficient to support a claim for either a facial or an "as applied" challenge to a City ordinance based on a violation of plaintiffs' right to equal protection of the laws. WHEREFORE, the CITY OF SARASOTA, FLORIDA, respectfully requests this Honorable Court to enter an Order dismissing the Plaintiff' Complaint in this action, and for such other and further relief as is deemed just and appropriate. . Robert M. ournier, Esq. Florida Bar No. 262730 John K. Shamsey, Esq. Florida Bar No. 583383 FOURNIER, CONNOLLY, WARREN SHAMSEY, P.A. 1 South School Avenue, Ste. 700 Sarasota, Florida 34237 (941) 906-1199 Telephone (941) 906-1890 Facsimile Counsel for Defendant, City of Sarasota John.ShamseV@sarasotagoV.co1n CERTIFICATE OF SERVICE I CERTIFY that a copy of the foregoing has been sent Via electronic mail to John P. Harllee, Harllee Bald, P.A., 202 Old Main Street, Bradenton, Florida 34205, at and this 1st day of October, 2013. Robert M. Fournier, City Attorney RESOLUTION NO. 13R-2337 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SARASOTA, FLORIDA, DENYING SITE PLAN APPLICATION 12--SP--12 AND REVERSING THE PLANNING BOARD APPROVAL OF SITE PLAN APPLICATION 12-SP-12, PURSUANT TO APPEAL APPLICATION 13--APP--02, SAID SITE PLAN APPLICATION HAVING SOUGHT TO CONSTRUCT A WALMART STORE AT 2260 RINGLING BOULEVARD IN THE COMMERCIAL SHOPPING CENTER -- NEIGHBORHOOD (CSC--N) ZONE PROVIDING FOR READING BY TITLE AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Wal-Mart Stores East, L.P. (hereinafter "Wal-Mart" or "Applicant") filed Site Plan Application 12-SP--12 to allow construction of a 98,000 sq/ft Wal-Mart store with off-street parking on a 9.73 acre property located at 2260 Ringling Boulevard; WHEREAS, such proposed 9.73 acre site consists of approximately 8.59 acres of property located in the Commercial Shopping Center-Neighborhood (CSC-N) Zone District and approximately 1.14 acres of property located in the Residential Single Family -- 3 (RSF-3) Zone District; and WHEREAS, the Planning Board, acting in its capacity as the Local Planning Agency, received the recommendation of the Planning staff to approve Site Plan Application No. 12--SP--12 with conditions as detailed in the Planning staff report dated October 30, 2012; and WHEREAS, the Planning Board, acting as the Local Planning Agency, approved Application No. 12--SP-12 by a 3-2 vote at the conclusion of a duly noticed public hearing held on November 14, 2012; and WHEREAS, Jerry Sparkman, Marian Maxson Martin, Juanita Rawlinson, Candy Spaulding, Pat Kolodgy, and Kelly (hereinafter the ''Appellants''), pursuant to Section Zoning Code (2002 edition), timely filed Appeal Application No. 13- APP-02 to appeal the Planning Board's approval of Site Plan Application No. 12-SP--12 with the Office of the City Auditor and Clerk; and WHEREAS, the City Commission, during a regularly scheduled Meeting held on January 7, 2013, by a vote of 4-1, determined to hold a de novo public hearing to consider Site Plan Application No. as requested by Appeal Application 13- APP--02 and found the appellants to be aggrieved persons as defined in the Zoning Code (2002 edition); and WHEREAS, the City Commission held a duly noticed Public Hearing on Site Plan Application on February 19, 2013, with such hearing being continued to February 26, 2013; and WHEREAS, ?'l66.033, Florida Statutes, provides that a municipality's denial of a development permit must be reduced to writing and given to the applicant as written notice of denial, citing the reasons therefore. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SARASOTA, FLORIDA: Section 1. Pursuant to Section Zoning Code (2002 edition), the City Commission, by a 3--2 vote, hereby concurs with the arguments put forth in Appeal Application No. 13--APP-02 and at the public hearing held thereon, regarding the Planning Boards approval of Site Plan Application No. and hereby reverses the Planning Board's decision and denies Site Plan Application No. 12--SP--12. in reaching its decision, the City Commission finds that: 1) The Appellants provided competent, substantial evidence that the Applicant's proposed site plan, as described in Site Plan Application No. 12-SP--12, does not meet the minimum threshold requirements of the Comprehensive Plan of the City of Sarasota [a/k/a Sarasota City Plan (2030)]. The development proposed by Application 12--SP-12: a) is not compatible with the Goals, Objectives and Action Strategies of the Neighborhood Plan of the Sarasota City Plan (2030), b) is not compatible with the Goals, Objectives and Action Strategies of the Future Land Use Plan of the Sarasota City Plan (2030), and c) is not compatible with the Purpose and intent of the property's 2 Neighborhood Commercial Land Use Classification under the Sarasota City Plan (2030). Accordingly, Application 12--SP-12 does not satisfy criteria of the applicable Standards for Review under the City Zoning Code because on balance, the proposed development, design and layout are not compatible with the Sarasota City Plan. In reaching its decision, the City Commission also finds that: 2) The Planning Board did not apply the correct law in determining that a store of the size, structure type and aggregation of retail sales proposed by Application 12-SP-12 is a permitted use in the CSC-N zone district pursuant to Table located in Sec. VI-501, Zoning Code (2002 edition). Among all of the land uses listed in Table (entitled "Primary Uses Allowed in Commercial Zones"), the Applicant's proposed use most closely resembles a department store, which is a specifically prohibited use in the CSC-N zone. Table mostly lists numerous types of individual, limited size stores that are permitted uses in the CSC-N zone district. There is no single permitted use specifically listed in Table that would allow for a store of the size and magnitude of the proposed Wal-Mart. Subsections (1) (2) of Section Zoning Code (2002 edition) establish that any use, condition or activity not specifically permitted in a zoning district shall be prohibited in 3 that district. Accordingly, Application 12--SP--12 does not satisfy criteria lV--506(1) of the applicable Standards for Review under the City Zoning Code because the proposed development is not a permitted use in the CSC-N zone district and is thus not in keeping with the intent and specific standards and criteria prescribed in pertinent sections of the land development regulations. In reaching its decision, the City Commission also finds that: 3) The Appellants provided competent, substantial evidence that there are ways in which the configuration of the proposed development location of the use(s), intensity, scale, building size, mass, bulk, orientation on the lot, lot coverage, architecture, screening, buffers, setbacks, lighting traffic circulation patterns both external and internal, including traffic accessing loading docks loading area locations, operating hours, noise and other factors of compatibility with neighboring properties) could be changed which would mitigate or improve the effect of the proposed development on adjoining and nearby properties and on the community. and that: The proposed development, design and layout has not made adequate provisions for vehicular and pedestrian access, safety and traffic circulation (both internal and external to the 4 . project) given its close proximity to residential neighborhoods, to Payne Park and to narrow city streets. Accordingly, the Application 12-SP-12 does not satisfy criteria Vl--506(4) and.(5) of the applicable Standards for Review under the City Zoning Code. Section 2. The Applicants have exhausted their remedies available pursuant to the Zoning Code of the City of Sarasota. Upon execution of this Resolution 13R- 2337, the City has taken its final action on Site Plan Application No. 12--SP-12 and Appeal Application No. Therefore, the time period within which any legal challenges to the City Commission's denial of Site Plan Application No. 12--SP-12 may be filed in Circuit Court commence on the date the City Commission renders this Resolution Section 3. This Resolution shall take effect immediately upon adoption. ADOPTED by the City Commission of the City of Sarasota, upon reading by title only, after posting on the bulletin board at City Hall for at least (3) days prior to adoption, as authorized by the Article IV, Section 2, Charter of the City of Sarasota, Florida, this Sffzanne Ati/vwell, Mayor . mela M. Nadalini, BA, CMC City Auditor and Clerk No Mayor Suzanne Atwell Vice Mayor Shaw Commissioner Caragiuio Commissioner Turner Commissioner Snyder