,* '' . .-
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT OF THE
STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY, CIVIL ACTION
FICKLING & WALKER DEVELOPMENT
COMPANY, a Georgia corporation,
CITY OF TAMPA, et al., DV-. .-
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT C.
The Plaintiff, FICKLING & WALKER DEVELOPMENT COMPANY, by
and through its undersigned attorneys, has filed with this Court
a Motion for Summary Judgment against the Defendants, declaring
City of Tampa Ordinance No. 5469-A repealed, and enjoining
SDefendant, WILLIAM C. (BILL) YOUNG, from refusing, failing or
neglecting to-issue a building permit to the Plaintiff.
In June, 1972, the Plaintiff purchased, and at all times
material herein, has owned a ten-acre tract of land located in
Sthe "Curiosity Creek Flood Plain and Retention Basin". The land
was zoned R-3-A and was suitable for development as a low-density
multiple-dwelling apartment complex when purchased by the
Both prior to and after the purchase, the Plaintiff ex-
Spended substantial sums of money in testing the soil, determining
the suitability of the property for the proposed complex, pre-
paring plans and specifications, and attempting to obtain all
necessary permits. Between June and October, 1972, the Plaintiff
had numerous meetings and communications with the Director of the
Public Works Department and other officials of the City of
Tampa concerning the proposed development and the steps needed
SALEM AND SALEM
ArrTORNSS AT LAW
4o00 W. XxIPWDT MP.v
POST OmrCB aoX 180i
TArPA. FLORID 33.T,
SALEM AnD SALEM
A??ORMST8 A'S "W
4600 W. IXZ4NXD1 aLwo
POST OrTICT BOX 1001T
TADPA. rLONIDA 23319
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7: -IT .40
to be taken to insure effective water drainage. The Defendants
were clearly aware of the Plaintiff's plans during the summer of
1972, long before Ordinance No. 5469-A was passed.
Knowing full well the extent of monies and time expended
by the Plaintiff in developing the planned construction, and with-
out giving actual notice to the Plaintiff, officials of the City
of Tampa Department of Public Works proposed the subject Ordinance
creating the Curiosity Creek Flood Plain and Retention Basin. On
October 6, 1972, the Ordinance was signed into law by Mayor Dick
A. Greco, Jr., in his capacity as the Mayor of the City of Tampa.
The effect of the Ordinance on the Plaintiff was to pre-
ivent its placing of any structures on 96%o of its ten-acre tract,
i.e., approximately 417,105 square feet of a total 435,588 square
feet. All areas surrounding the Curiosity Creek Flood Plain and
Retention Basin are zoned R-l, R-2, R-3 or R-3-A and permit
After sanitary sewer permits had been issued and based
solely on the prohibition set forth in the Ordinance, the
Defendant WILLIAM C. (BILL) YOUNG, Chief Building Inspector for
the City of Tampa, refused, and continues to refuse, to issue a
building permit to the Plaintiff for building on the subject
land. Since that time, Plaintiff has exhausted all administra-
tive remedies and, as a last resort, seeks proper relief from
this Court. Additionally, since the time the pending action was
filed, the passage of F.S. Chapter 373 has resulted in the auto-
matic repeal of the subject ordinance upon which the Plaintiff
primarily relies in seeking immediate relief by this Motion.
I. MOTIONS FOR SUMMARY JUDGMENT
The Plaintiff's Motion for Summary Judgment, filed
herein pursuant to Florida Rules of Civil Procedure Section 1.51C
(c), enables the Court to grant the relief sought since; in '
cases where there is no material issue of fact between the
parties, the Court can rule on the case presented as a matter of
SALY- "nD SALEM
A2?oPuTU Ar ATW
4600 W. NZX7WRD xi.
P0OS OPICS BOX 19001
TAXPA. VLOJUDA 33076
at an th moi p t y .e ntte
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Florida Rule of Civil Procedure 1.510 (c) states, inter
The (Summary) Judgment shall be rendered
forthwith if the pleadings show that
there is no genuine issue as to any material
fact and that the moving party is entitled
to a judgment as a matter of law.
The purpose of the Summary remedy is to relieve our courts of
unnecessary delay when a party is unable to support, by any
competent evidence, any material issue of fact. 30 Fla. Jur. 415,
Summary Judgment, Section 2.
Summary Judgments are not to be summarily denied, and
the Court must give the movant ample opportunity to demonstrate
that there are no material issues of fact. If the movant can so
demonstrate, he is entitled to, and must be granted, Summary
Judgment. In applying this principle to the instant case, where
there is no dispute as to any material issue of fact, it is clear
that the Plaintiff is entitled to a Summary Judgment as a matter
of law. Harvey Building, Inc. vs. Haley, 175 So. 2d 780, page
783 (Fla. Sup. Ct., 1965), Richmond vs. Florida Power and Light
Company, 58 So. 2d 687, page 689 (Fla. Sup. Ct., Div. A, 1952),
Biro vs. Geiser, 193 So. 2d 51, page 52 (1st D.C.A., 1966).
II. APPLICATION OF PERTINENT LAW TO FACTS OF CASE
The thrust of the Plaintiff's Motion here is that City
of Tampa Ordinance No. 5469-A:
A. affects the waters, a flood plain and
a drainage basin in this State;
B. That, as such, the Ordinance is subject
to the provisions of F.S. Section 373;
C. That the City of Tampa has failed to
timely comply with the filing requirements of
F.S. Section 373;
D. That because of the City of Tampa's
failure to comply, the Ordinance has been repealed
-., : .. .. .: --
by operation of .law pursuant to the provisions of
F.S. Section 373.023; and
E. That there are no grounds or reasons for
the Defendant, WILLIAM C. (BILL) YOUNG, Chief
Building Inspector for the City of Tampa, to continue
to refuse to issue a building permit to the Plaintiff.
A. ORDINANCE AFFECTS WATERS
The City of Tampa Ordinance No. 5469-A provides, in
pertinent part, as follows:
No building or structure may be set, con-
structed, moved to or within the Flood
plain and drainage retention area as
designated for the Curiosity Creek Drainage
Basin. (Emphasis supplied)
The Ordinance goes on to further describe the Basin as
being that land described within the Ordinance lying less than
twenty-eight (28) feet above sea level and permits construction
only oh that land lying more than twenty-eight (28) feet above
sea level. The defense argues that the purpose of the Ordinance
is to establish "setbacks", yet, historically, "setbacks" have
been established to preserve minimum parcels of land from ob-
struction when lying between buildings or next to highways.
Opposing counsel's characterization of this Ordinance as
a "Setback Requirement" grossly misrepresents the true meaning
and purposes of the term.
It is common knowledge that the City has sought to obtain
the Curiosity Creek Flood Plain and Retention Basin property for
many years in order to preserve it as a water retention and
drainage basin. At no time, prior to hearing of the Plaintiff's
plans, did the City attempt to pass a so-called "Setback"
ordinance affecting the water basin area or taking away its
R-3-A zoning classification. However, when suddenly faced with
the prospect of an apartment complex being built on the water
SALEM AnD SALEM
ATZO3aWT AT LAW
4oo00 W. nroDT RLTD.
POT OrrICZ 50X 10 T
STAMPA. LORDA 36
*. ,"' ',, ,
basin, the subject Ordinance was developed, proposed, passed, and
adopted with near lightening speed.
The undeniable purpose and intent of the Ordinance was
and is to preserve the Curiosity Creek Flood Plain and Retention
Basin in its natural state. The Ordinance was not passed to
keep structures a certain distance from the highway or to insure
proper spacing between residential or commercial buildings, but
merely to allow water to flow onto the land owned by the Plaintiff
The real reason for seeking to preserve the water basin
is to prevent excessive drainage and to provide a place for water
to be retained during periods of heavy rain or floods. In this
lies the unequivocal effect of the subject Ordinance on the
waters of this State, whether called a "setback" ordinance or
a water control regulation as it really is.
B. ORDINANCE SUBJECT TO F.S. SECTION 373
The subject Ordinance clearly affects waters within the
State of Florida and it is subject to the provisions of F.S.
Section 373, Florida Water Resources Act of 1972. Section 373.02
of the Statute provides that all waters in the State of Florida
are subject to regulation thereunder, unless specifically
exempted by general or special law. No exemption exists in this
case and to further demonstrate that the subject Ordinance is
controlled by F.S. Section 373, one need only examine F.S. Sectior
373.016 (2) (d) which provides, in part, as follows:
It is further declared to be the policy
of the legislature to prevent damage from
floods, soil erosion, and excessive drain-
age. (Emphasis supplied)
It is not argued that the City of Tampa does not have
power to enact legislation affecting the waters of the State.
Chapter 373.023 clearly allows municipalities such power. The
issue here does not involve the power of the City of Tampa to
act, but rather its failure to comply with F.S. 373.023 resulting
SALEM AND SALEM
PIorrsxIONAn A OCIATIOr
ATTOROMTS AT LAW
4*00 W. KErVEDT ULWD.
SrOST O CE BOX E0 ..
TAXIrA. mLOIDA 3387 '
-5- -' i
SI. C.f _.. .. .-,.
SALEM A u BALEM
ATTOaXrTB AT &AW
4000 W~ XKiNNZ ILTVD.
POST OFFICE BOX 182T0
TAMPA, LORI IA 338T0
i. .- r, j- L ,'r ,-. .* ,- -'i '
.in the subsequent automatic repeal of the subject Ordinance by
operation of this law. The Ordinance was passed prior to the
passage of F.S. Section 373, and the Act specifically provides
that acts passed before its passage must be filed with the
Department of Natural Resources as required by F.S. Section
373.023 which provides:
No state or local government may enforce, except
with respect to water quality, any special act,
rule, regulation or order affecting the waters in
the State controlled under the provisions of this
Act, whether enacted or promulgated before or
after the effective date of this Act, until such
special act, rule, regulation, or order has been
filed with the Department Any rule or regula-
tion in effect on the effective date of this Act
which is not filed with the Department within 180
days after the effective date of this Act shall be
deemed repealed, if the notice hereinafter called
for shall have been received by the state or local
agency issuing such rule or regulation. The Depart-
ment is directed to notify by certified or reg-
istered mail every state or local government agency
known to be authorized to enforce any special act,
rule, regulation or order affecting the waters of
the State regarding the provisions of this sub-
C. EFFECT OF FAILURE TO COMPLY WITH F.S. SECTION 373
As noted above, F.S. Section 373 provides that once the
Department notifies a local agency of the Act's filing require-
ments, all presently existing regulations affecting waters in
the State must be filed with the Department within 180 days after!
the effective date of the Act.
The exhibits attached to the Plaintiff's Motion clearly
show that the Defendants, CITY OF TAMPA and TAMPA CITY COUNCIL,
failed to comply with the requirements of F.S. Section 373.023.
Exhibit "D" shows that on July 1, 1973, the CITY OF TAMPA was
furnished with notice to file with the Department of Natural
Resources all laws affecting waters in the State of Florida.
Thereafter, the City had 180 days in which to file the Ordinance
with the Department. However, Exhibit "E" clearly shows that as
of June 27, 1975, almost two years after the notice was given,
the Defendants had not filed any City of Tampa ordinances with
": .. ... .. 0L '
*. ~c L
the Department of Natural Resources.
D. REPEAL BY OPERATION OF LAW
SALEM AmN SALEM
ATTORNRTB AT LAW
4000 W. XZ CnlDT LVD.
POST OrPICS BOX 1i601
TAMPA, ILORUDA 2303T
The above facts cannot be disputed, and F.S. Section
373.023 (2), therefore, unequivocably requires that City of
Tampa Ordinance No. 5469-A be deemed repealed by operation of
law. Accordingly, Plaintiff is entitled to Summary Judgment on
the issue of the nullity of the Ordinance.
E. LACK OF GROUNDS TO REFUSE PERMIT
The Ordinance having been effectively repealed, there is
no basis upon which the Defendant, WILLIAM C. (BILL) YOUNG,
Chief Building Inspector fr the City of Tampa, can continue to
refuse to issue the building permit requested by the Plaintiff.
The sixth paragraph of the Second Defense contained in the
Defendants' Answer and Defenses admits Paragraph 39 of the
Plaintiff's Complaint, which alleges:
That the Defendant, WILLIAM C. (BILL) YOUNG's
sole reason for refusing, failing or neglecting
to issue Plaintiff a building permit for construc-
tion of the proposed apartment complex on the
Plaintiff's property is due to the provisions of
City of Tampa Ordinance No. 5469-A .
In that the sole reason for refusing, failing or
neglecting to issue the building permit has now been removed by
the repeal of the Ordinance, the Defendant, WILLIAM C. (BILL)
YOUNG, must be directed to grant the building permit to the
A review of the evidence and argument presented on
this Motion unequivocably shows that the subject Ordinance
does affect the waters of this State by its creation and pre-
servation of a flood plain and water drainage retention basin.
Thus, the Ordinance does affect the waters of the State and
is subject to and controlled by F.S. Section 373, Florida Water
Resources Act of 1972.
7 '- ;
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SALZEM AwD SALEM
ATTOURNT8 AT AW
4600 W. KEfXNEDT BLVD.
POST OFFICE BOX 1i90T
TAMPA, FLORODA 339 0
SALEM AND SALEM PROFESS(
By: Albert M. Salem, Jr
Post Office Box 18607 /
Tampa, Florida 33679
ATTORNEYS FOR PLAINTIFFS
. "r 2 '. "' '"''.'. .
While F.S. Section 373 allows municipalities to pass
regulations affecting the waters of the State, it instructs and
demands that noticecf all such regulations passed must be given
to the Department of Natural Resources within specified periods
of time, otherwise the regulation will be deemed repealed by
operation of law. Plaintiff's Exhibits "D" and "E" to its
Motion undeniably prove that the CITY OF TAMPA has failed to
timely comply with F.S. Section 373, and such failure has
resulted in the automatic repeal of the Ordinance.
Second, because the Ordinance has been repealed, the
sole grounds, as admitted by the Defendants' Answer, for refusing
to issue the Plaintiff a building permit no longer exists.
Thus, there being no grounds for refusing to issue the permit
and the Plaintiff having fully complied with all other legal
requirements, the Defendant WILLIAM C. (BILL) YOUNG, should be
enjoined from refusing, failing or neglecting to issue a
building permit to the Plaintiff for the construction of its
proposed apartment complex.
The only issue of fact in question that is pertinent here
was that the Building Inspector could not issue a permit to the
Plaintiff because of the provisions of the Ordinance. This
issue is clearly presented by the pleadings. Now, it is
crystal clear that the Ordinance cannot present an obstacle
since it is repealed by F.S. 373.023. Thus, the issue of
fact is fully removed and it becomes the obligation of the
Court to rule on the law which clearly supports the P~intiff's
position and provides an absolute basis for entry of summary
judgment in its favor requiring the issuance of a building
permit to it and assessing costs and expenses incurred by it
against the Defendants.
_ II _____
MATE OF SERVICE-'
k SALEMI AND SALEM
ATTOnI Ta AT LAW
4000 W. KZJLVIEU BLVD.
POST OrPICE BOX ISOT?
TAMPA. rLORIDA 3350
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by hand delivery this 2nd
day of September, 1975, to Morison Buck, Esquire, 903 Swann
Avenue, Tampa, Florida, Attorney for Defendants.
* t'4 5i..a,.....`~7
.. -B 4I 4 1 3 -
IN THE CIRCUIT COURT OF THE THIRTENTH JWICIA CIRCUIT OF THE STATE OF
FLORIDA, IN AND FOR HILLSBOROUGH WUUNIY 9 0917 CIVIL ACTION
CLEAR vhiCUIT COURT
FICKLING & WALKER DEVELOPMENT
COMPANY, a Georgia corporation,OF
Plaintiff, 3046 c 578 p
vs. No. 74-4141
CITY OF TAMPA, et al, DIVISION D ff
SUMMARY FINAL JUDGMENT
THIS CAUSE came on to be heard upon the Plaintiff's
Motion for Summary Judgment filed herein and the Court having considered
the affidavits filed by and on behalf of the Plaintiff and the Defendants
as well as the Memorandum filed by the Plaintiff and having heard argument
of counsel for both the Plaintiff and the Defendants with respect to said
Motion, and the Court being otherwise fully advised in the premises, finds
1. That Florida Statutes Chapter 373 is applicable to
City of Tampa Ordinance No. 5469-A and
2. That the Defendants have.admitted their failure to
comply with the filing requirements set forth in Chapter 373, and
3. That the Defendants have failed to refute or controvert
the Plaintiff's allegation and proof of notice given to the Defendants of
the requirement for filing the subject Ordinance with the Department of
it is thereupon
ORDERED AND ADJUDGED as follows:
1. That the Plaintiff's Motion for Summary Judgment be and
the same is hereby granted with respect to the effect of City of Tampa
Ordinance No. 5469-A.
2. That it is the judgment of this Court that City of
Tampa Ordinance No. 5469-A be and the same is hereby deemed repealed in
accordance with the provisions of Florida Statutes, Chapter 373.
F. 3046 PG 579
3. That this Court defers ruling upon the Plaintiff's
request that the Defendant WILLIAM C. (BILL) YOUNG be enjoined from refusing,
failing or neglecting to issue a building permit for the construction of a
proposed apartment complex on the Plaintiff's land until such time as a
further need for such action by this Court is presented by the Plaintiff.
4. The Plaintiff's claims for attorney's fees, damages and
expenses are hereby denied.
5. Costs in this action in the amount of $58.50 are
hereby assessed against the Defendant CITY OF TAMPA and in favor of the
Plaintiff, FICKLING & WALKER DEVELOPMENT COMPANY, which Defendant CITY OF
TAMPA is hereby ordered to pay to the Plaintiff forthwith.
DONE AND ORDERED in Chambers at Tampa, Hillsborough County,
Florida, this dIay of September, 1975.
SJAMES P. CALHOUN
/ Ciiutt Judge
L^ --.; 1o .-" .....
cc: Albert M. Salem, Jr., Esq.
Morison Buck, Esq.