Filing
# 179702134 E-Filed 08/15/2023 02:55:50 PM
IN THE
CIRCUIT COURT
OF THE NINTH
JUDICIAL CIRCUIT
IN AND FOR ORANGE
COUNTY,
FLORIDA
CIRCUIT CIVIL DIVISION
CENTRAL FLORIDA TOURISM OVERSIGHT
DISTRICT,
Plaintiff,
v.
CASE NO.: 2023-CA-011818-0
WALT DISNEY PARKS AND RESORTS
U.S., INC.,
Defendant.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNTS
I, II, III, IV,
& VI
Plaintiff,
Central Florida Tourism
Oversight
District
(the "District"),
moves for
summary
judgment
under Florida Rule of Civil Procedure 1.510 on Counts
I, II, III, IV,
and VI of its
Corrected
Complaint
for
Declaratory
and
Injunctive
Relief. For each of these
counts,
there is no
genuine dispute
as to
any
material
fact,
and the District is entitled to
judgment
as a matter of law.
In
support
of this
motion,
the District states as follows:
I. INTRODUCTION
Prior to
February
27, 2023,
the District was known as the
Reedy
Creek
Improvement
District
("RCID").
Mere
days
before the Florida
Legislature
reformed RCID and its
governance
(and changed
its name to the
District's),
RCID and the
Defendant,
Walt
Disney
Parks and
Resorts
U.S.,
Inc.
("Disney"),
entered into the two
agreements
that are the crux of this case:
(1)
the
30-year
"Walt
Disney
World
Chapter
163
Development Agreement" (the "Development
Agreement");
and
(2)
the related "Declaration of Restrictive Covenants"
(the
"Restrictive
Covenants") (collectively,
the
"Agreements").
These
Agreements
were the
product
of backroom
dealings
in the face of imminent and
sweeping legislative
reform. And
they
were
Disney's
1 1 th-
hour
attempt
to
use
the RCID board—which
Disney
had controlled for decades—to insulate
itself from the
authority
of the
incoming
board.
Shortly
after its
appointment,
the District's
new
board uncovered these
Agreements
and
the host of
procedural
and substantive flaws that
plagued
them. After a
public hearing, during
which the District heard
presentation
from counsel
regarding
the
illegality
of the
Agreements,
the
District
adopted legislative findings detailing
the
legal
defects in the
Agreements
and
concluding
that the
Agreements
are
void ab initio.
Disney,
however,
continues to insist that the
Agreements
are
valid and
enforceable,
thereby creating
doubt about the District's
ability
to
govern.
Consequently,
the District filed this lawsuit
seeking
a
declaratory judgment
that the
Agreements
are void and unenforceable and
an
order
enjoining Disney
from
enforcing
them.
The District's
operative complaint
contains nine
counts,
each of which
independently
entitles the District to the relief
sought.
The District
now
seeks
summary judgment
on
five of
those
counts:
•
Count I
(Failure
to Provide Notice of Public
Hearing)
•
Count II
(Ultra
Vires Act
in Violation of
§ 163.3223,
Florida
Statutes)
•
Count III
(District
Lacked
Authority
and Jurisdiction to Enter into
Development
Agreement)
•
Count IV
(Violation
of Article
VII,
Section 12 of the Florida
Constitution)
•
Count
VI
(Unlawful Delegation
of Governmental
Authority
to Private
Entity)
For each of these five
counts,
the District is
independently
entitled to
judgment
as
a
matter
of law.
2
II.
SUMMARY JUDGMENT STANDARD
In
2021,
the Florida
Supreme
Court
substantially
reformed Florida law
by "align[ing]
Florida's
summary judgment
rule with the federal
summary judgment
standard." Olsen v.
First
Team
Ford, Ltd,
359 So. 3d
873,
877
(Fla.
5th DCA
2023)
(citing
In re Amends. To Fla. Rule
of
Civ. Proc.
1.510,
317 So. 3d
72,
74
(Fla.
2021)).
Florida's
summary
judgment
rule,
which
by
its
terms
applies
to
claim-specific summary judgment,
is codified in Florida Rule of Civil Procedure
1.510. It states in
pertinent part:
Motion for
Summary
Judgment
or Partial
Summary
Judgment.
A
party
may
move for
summary judgment, identifying
each claim or defense—or the
part
of
each claim
or
defense—on which
summary judgment
is
sought.
The court shall
grant
summary judgment
if the movant shows that there is no
genuine dispute
as
to
any
material fact and the movant is entitled to
judgment
as
a
matter of law.
The
court
shall
state
on the record the reasons for
granting
or
denying
the motion.
The
summary judgment
standard
provided
for in this rule shall be construed and
applied
in accordance with the federal
summary judgment
standard.
Fla. R. Civ. P.
1.510(a).
By now,
Florida's "new"
summary judgment
standard is routine. In
applying
Rule
1.510,
courts
commonly
recite the Florida
Supreme
Court's directive that
maintaining consistency
with
the federal standard
requires recognizing
"'the fundamental
similarity
between the
summary
judgment
standard and the directed verdict standard.'"
Olsen,
359 So. 3d at 877
(quoting
In re
Amends. To Fla. Rule
of
Civ. Proc.
1.510,
317 So. 3d at
75).
"Both standards focus on whether
the evidence
presents
a sufficient
disagreement
to
require
submission to a
jury."
Id
(quotation
omitted);
see also Welch v.
CHLN,
Inc.,
357 So. 3d
1277,
1278
(Fla.
5th DCA
2023) (explaining
that
to
decide whether a
genuine
issue of material fact
exists, "Mlle
court
views the evidence in a
light
most favorable to the
non-moving
party,
and a
genuine dispute
occurs when the evidence
would allow a reasonable
jury
to return a verdict for that
party").
Applying
Florida's "new"
summary judgment
standard to this
case,
the District is entitled
to
summary judgment
on
Counts
I, II, III, IV,
and VI of its
complaint.
As
explained
below,
there
is
no
genuine dispute
as to
any
fact material
to
those
counts,
and the District is entitled
to
judgment
as
a matter of law. See
Olsen,
359 So. 3d at 876
(citing
Fla. R. Civ. P.
1.510(a)).
III. SUPPORTING FACTUAL POSITIONS
Several fundamental and
undisputed
facts entitle the District to
summary judgment
on
five of the nine counts of its
complaint,
which is attached
as
Exhibit 1. The evidence
supporting
these facts is attached and consists of the
following:
•
Certified
Copy
of the
Development Agreement (Exhibit
2)
•
Certified
Copy
of the Restrictive
Covenants
(Exhibit 3)
•
Declaration of Glenton Gilzean
(Exhibit
4)
•
Declaration of
Susan
Higginbotham (Exhibit 5)
•
Declaration of Erin O'Donnell
(Exhibit
6)
•
Declaration of
Lee
Pulham
(Exhibit
7)
As to the
specific
facts relevant to this
motion,
first,
it is
undisputed
that RCID failed to
mail the
statutory
notices mandated
by
section
163.3225,
Florida
Statutes. See Ex.
1, IN 35-46;
Ex.
4, If 3;
Ex.
5,
Attachment 1.
Second,
it is
undisputed
that,
prior
to
entering
into the
Development
Agreement,
RCID
never
adopted
an
ordinance
setting
out the
procedures
and
requirements
for
considering
and
entering
into a
development
agreement,
as described in section
163.3223,
Florida Statutes. See Ex.
1, IN 47-54;
Ex.
4, If
4.
Third,
RCID lacked the
legal
authority
or
jurisdiction
to
assign
to
Disney
the
development rights
within the
City
of
Bay
Lake
and the
City
of Lake Buena Vista. It is
undisputed
that
property
within the boundaries of both of
these
municipalities
is
subject
to the
Development
Agreement,
that neither
municipality
4
conducted
public hearings
on
and
signed
the
Development Agreement,
and that the District did
not
purport
to
sign
the
Agreement
on
their behalf. See Ex.
1, ifif 55-63;
Ex.
2;
Ex.
6, if 3;
Ex.
7,
Attachment
2, p.
8B-2.
Fourth,
it is
undisputed
that
through
the
Development
Agreement,
RCID
purported
to
impose
a
general
debt
obligation
on
the District for
capital improvement projects
exceeding
a
twelve-month
period
without first
securing
the vote of District
property
holders as
commanded
by
article
VII,
section 12 of the Florida Constitution. See
Ex.
1,
Tr
64-70;
Ex.
2,
p.
3, § II(C)
(Provision
of
Necessary
Public
Facilities)
& Exhibit 3
(Capital
Improvements
Schedule);
Ex.
4, if 4;
Exhibit
7,
Attachment
2, pp.
9B-8-9.
9B-21-22,
and
9B-39;
Ex.
5,
3 &
Attachment 1.
Fifth,
and
last,
it is
undisputed
that
through multiple provisions
in both
Agreements,
RCID
purported
to
delegate government authority
to
a
private entity, Disney, by
giving Disney
final
decision-making authority
over
all future land
use
and
development
in the
District. See Ex.
1, 1 105-20;
Ex.
2;
Ex. 3.
IV. MEMORANDUM OF LAW
The violations
alleged
in Counts
I, II, III, IV,
and VI involve
no
genuine dispute
as
to
any
material
fact,
and as
explained
below,
entitle the District to
judgment
as
a
matter of law. For
any
or
all of the
following
reasons,
the Court should
grant summary judgment
in the District's favor
and rule that the District is entitled to the
requested declaratory
and
injunctive
relief.
Count I: Failure
to
Provide Notice of Public
Hearing
Under Florida
law,
"[a]greements
entered into
by public
bodies which fail to
comply
with
statutory requirements
are void." Palm Beach
Cnty.
Health Care Dist. v.
Everglades
Mem?
Hosp., Inc.,
658 So. 2d
577,
581
(Fla.
4th DCA
1995);
cf. City of
Panama
City,
Fla.
V. T.
& A
Utils.
Contractors,
606 So. 2d
744,
747
(Fla.
1st DCA
1992)
C[T]axpayers
should not be held
accountable
on
a
contract
unless the
contract
has been entered into
according
to
the strict letter of
the law.
Otherwise,
corrupt
(or
merely inept) public
officials could
subject
the
public
to untold
financial
liability.") (explaining
the
'justification underlyine
the Florida
Supreme
Court's
holding
in
Ramsey
v.
City
ofKissimmee,
190 So. 474
(Fla. 1939),
that a
contract
that
was not
approved
in the
manner
required by
the
City's
charter "had
never come
into
existence).
That
black-letter
principle
dooms the
Agreements.
To
begin
with,
the
Development Agreement
was
entered into and is
subject
to the
provisions
of the Florida Local Government
Development Agreement
Act,
sections 163.3220-
163.3243,
Florida
Statutes
(the "Act").
See Ex.
2, pp. 1, 2,
&
3, § I(C) (Authority
for
Agreement).
Indeed,
the title of the
Development Agreement
is the "Walt
Disney
World
Chapter
163
Development Agreement,"
and the
parties expressly agreed
that the
Development
Agreement
was
"entered into
pursuant
to the
authority
of the
[Act],
which consists of Sections
163.3220-163.3243." Id And absent the
statutory authority
of the
Act,
the District could not
contract
away
its
discretionary legislative power
over
land
use
and
zoning. Morgran
Co.
v.
Orange Cnty.,
818 So. 2d
640,
642-43
(Fla.
5th DCA
2002)
(noting
that Florida law has
long
prohibited
contract
zoning
and that Florida allows
development agreements only
because
they
are
"expressly permitter by
the
Development Agreement
Act).
See also
Hartnett
v.
Austin,
93
So. 2d
86,
89
(Fla.
1956)
(recognizing
"the
long-established principle
that a
municipality
cannot
contract
away
the exercise of its
police
powers")
and
§ 163.3220(4),
Fla.
Stat.
([The Act's]
intent is effected
by authorizing
local
governments
to enter into
development agreements
with
developers, subject
to the
procedures
and
requirements
of ss.
163.3220-163.3243.)
(emphasis
added).
Thus,
the Act is an affirmative
grant
of
power
from the
Legislature
to local
governments,
like the
District,
that authorizes them to contract
away
some
of their
legislative
6
power (subject
to the Act's strict
guidelines), something
that local
governments
were
prohibited
from
doing prior
to the Act.
Most
relevant
to
this
count,
the
Act
contains the
following mandatory
notice
provision:
163.3225 Public
hearings.—
(1)
Before
entering
into,
amending,
or
revoking
a
development
agreement,
a local
government
shall conduct at least two
public hearings.
At the
option
of the
governing body,
one of the
public hearings may
be held
by
the local
planning
agency.
(2)(a)
Notice of intent to consider a
development
agreement
shall be advertised
approximately
7
days
before each
public hearing
in a
newspaper
of
general
circulation and
readership
in the
county
where the local
government
is located.
Notice
of
intent to consider a
development
agreement
shall also be mailed to all
affected
property
owners
before
the
first public hearing.
The
day,
time,
and
place
at which the second
public hearing
will be held shall be announced at the
first
public hearing.
§ 163.3225,
Fla.
Stat.
(emphasis added).
Disney
is not the
only
property
owner in the District. See Ex.
5,
Attachment 1. And
by
its
express
terms,
the
Development
Agreement
affects these other
property
owners.
All land within the District's boundaries is
subject
to the "Maximum
Development
Program"
defined in the
Development
Agreement.
See Ex.
2,
pp.
2, 3, §
II(A) (Land
Use and
Project Entitlements), 4,
Table
1
(Master Development Program),
&
6, §
II
(D) (Master
Development
Program
Changes
and Master
Development Rights).
The Maximum
Development
Program
establishes the maximum allowed additional
development
for all
property
located
within the
District,
including
the number of additional hotel rooms and
office, retail,
and
restaurant
space, regardless
of whether that
property
is owned
by Disney
or another
property
owner. Id.
Under the terms of the
Development
Agreement,
all
development rights
established
by
the Maximum
Development
Program
are vested in
Disney
for its
development
of the Walt
7
Disney
World
Resort
(which
the
Agreement
defines
as
the
"Project')
on
the
property
it
owns
within the District
(which
the
Agreement
defines
as
the
"Property"2). Indeed,
that is the
purpose
of the
Development
Agreement.
Ex.
2, p. 3, § I(B)
(Purpose).
To
accomplish
this,
the
Development Agreement provides:
Master
Developer [previously
defined in the
Development Agreement
as Defendant Walt
Disney
Parks and
Resorts, U.S., Inc.,
and referred
to
hereafter for
clarity
as
"Disney]
is
the master
developer
for the
Project.
The Parties
agree
that all of the
development rights
and
entitlements,
including
without
limitation,
those
applicable
to all additional
approved
development through
2032,
as
established
by
the Master
Development
Program
identified
in TABLE 1
(collectively,
the "Master
Development Rights
and
Entitlements")
are
vested in
Disney
and that
Disney
owns
and controls such
Master
Development Rights
and Entitlements.
Disney may assign portions
of the Master
Development Rights
and
Entitlements to other landowners and/or
ground
lessees within the RCID Jurisdictional
Lands.
Any
proposed development
that utilizes
any
of the Master
Development Rights
and Entitlements
requires
the
prior
written
approval
of
Disney. Disney
shall be
responsible
for
maintaining
an
accounting
of the
Master
Development Rights
and
Entitlements that have been used and the
Master
Development Rights
and Entitlements
that are unused and available for use.
Ex.
2,
p.
6, §
II(D)(2) (emphasis
in
original).
As it
expressly acknowledges,
TABLE 1 of the
Development
Agreement
copies
the Maximum Additional
Approved Development
table in
RCID's
comprehensive plan,
and it covers
every
additional hotel
room,
office
space,
retail
space,
and
restaurant
that can be
developed
within the entire
jurisdiction
of the District
(the
"RCID
Jurisdictional
Lands").
See Ex.
2,
p.
3, §
II(A)
&
p.
4,
TABLE
1;
Ex.
7,
Attachment
1,
p.
2A-12.
Thus,
the
Development
Agreement purports
to vest in
Disney
and
give Disney ownership
and control of all of the future
development rights
within the District's boundaries
to
the
exclusion
of
any
other
property
owner. See Ex.
2,
p.
6, §
II(D)(2).
Pursuant to the
Development
Agreement, any
other
property
owner in the District that
wants to
further
develop
its land
must
1.
Exhibit
2, p.
2.
2.
Id,
p.1
& Exhibits 1
(Legal Description
of the
Property)
and Exhibit 2
(Location
Map
of the
Property).
8
first obtain an
assignment
of
development rights
from
Disney
and then obtain written
approval
from
Disney
before
using
those
development rights.
Id In other
words,
any property
owner
that
wants to
add
even one more
hotel
room or one more
square
foot of retail
space during
the
next
thirty years
cannot do
so
without first
getting Disney's permission
to do
so.
The
Development
Agreement clearly
affects the interests of the other
property
owners besides
Disney,
such as the
Four
Seasons
Resort
owned
by
HHR
FSO LLC. See
Ex.
5,
Attachment 1.
Nevertheless,
before
holding
its first
public hearing
on
the
Development Agreement
on
January 25, 2023,
RCID
violated
§
163.3225s
mandatory
notice
provision. Specifically,
RCID
did not mail notice of intent to consider a
development agreement
to these other
property
owners.
See Ex.
4,
3.
By
the
plain
terms of the
statute, therefore,
the
Development Agreement
is void
and unenforceable. See
§ 163.3225(2)(a).
Florida decisions
addressing comparable mandatory statutory
notice
requirements
underscore that the
prior
board's failure
to
strictly comply
with the
statutory
notice
requirements
renders the
Agreement
void ab
initio. See,
e.g.,
Parsons v.
City of
Jacksonville,
295 So. 3d
892,
895
(Fla.
1st DCA
2020)
(defining
"void ordinances" to include "ordinances
adopted
without
proper
notice
or
legislative authority");
Coleman v.
City ofKey West,
807 So. 2d
84,
86
(Fla.
3d
DCA
2001)
(holding
an ordinance that failed to
comply
with the
applicable statutory
notice
requirements
was
"null and
void");
City
of
Jacksonville v.
Huffinan,
764 So.
2d
695,
696
(Fla.
1st
DCA
2000)
([S]trict compliance
with
statutory
notice
requirements
is
mandatory....
.");
Webb
v. Town Council
of
Town
Hilliard,
766 So. 2d
1241,
1244
(Fla.
1st DCA
2000)
("Attempts
of
local
government
to
grant zoning changes
without
compliance
with
procedural requirements
have been deemed invalid and
void.").
Because it is
undisputed
that RCID failed to mail the
9
required
notice to all affected
property
owners
before the first
public hearing
on
the
proposed
Development Agreement,
that
Agreement
is void and unenforceable.
Turning
to
the Restrictive
Covenants, by
their
own
terms,
the Restrictive
Covenants
expressly
and
entirely depend upon
the
Development Agreement.
Indeed,
the
only
consideration
for the Restrictive Covenants consists of "the commitments made
by [Disney]
under the
Development Agreement."
See
Ex.
3,
p.
2.
Because
the
Development Agreement
is void and
unenforceable,
the Restrictive Covenants
are
likewise void and unenforceable.
See,
e.g.,
La
Rosa
Del
Monte
Express,
Inc. V. G.S.W. Enter.
Corp.,
483 So.
2d
472,
473
(Fla.
3d
DCA
1986)
(recognizing
that when "the consideration
wholly fail[s]"
"the contract
[is] invalie) (applying
Marks v.
Fields,
36 So. 2d 612
(Fla.
1948)).
The District is therefore entitled to
judgment
as
a matter of law
on
Count
I.
Count II: Ultra Vires Act in Violation of
§
163.3223,
Florida Statutes
The
Act
provides
that
"[a]ny
local
government
may, by
ordinance,
establish
procedures
and
requirements,
as
provided
in
ss.
163.3220-163.3243,
to consider and enter into a
development agreement."
§ 163.3223,
Fla. Stat.
(emphasis added).
The title of
§ 163.3223,
"Applicability,"
itself indicates that the Act
only applies
when each of the conditions in
§
163.3223 is
satisfied,
including
the local ordinance
establishing procedures
and
requirements.
State
v.
Demons,
351 So.
3d
10,
16
(Fla.
4th
DCA
2022) ("The title-and-headingscanon
means
that 'the title of a statute
or
section
can
aid in
resolving
an
ambiguity
in the
legislation's
text.'"
(quoting
I.N.S. v. Nat'l Ctr.
for Immigrants' Rights,
Inc.,
502 U.S.
183,
189
(1991)). Thus,
reading
this
provision
in context of the
Act,
see
Ham
v.
Portfolio Recovery
Associates,
LLC,
308
So. 3d
942,
946-47
(Fla.
2020),
confirms that a local
government's
enactment of
procedures
is a
10
condition
precedent
to a local
government having
the
authority
to enter into a
development
agreement.
To
be
clear,
the
Act
does
not
compel
a local
government
to enter
into
development
agreements—or
even
to enter
negotiations
with a
developer
who seeks a
development
agreement.
But if
a
local
government
decides that it wants to
apply
the Act and
thereby
take
advantage
of the
Legislature's
authorization of
development agreements
as
an
exception
to the
default
prohibition
on
contract
zoning,
the local
government
must
satisfy
all the conditions in
§
163.3232
and
"by
ordinance,
establish
procedures
and
requirements...
to
consider and
enter
into a
development agreement
with
any person having
a
legal
or
equitable
interest in real
property
located within its
jurisdiction."
In other
words,
a
local
government
cannot enter into
a
development agreement
on
an ad hoc
basis,
as
RCID did
here,
but instead must establish and
follow a
pre-existing
set of
procedures
and
requirements unique
to that local
government
that
provides consistency
and
transparency
in the
approval process.
This
reading
of the
plain
text and context of
§
163.3232 avoids
reducing
the
statutory
provision
to mere
surplusage,
which courts
may
not do. See Hechtman v. Nations Title Ins.
of
New
York,
840 So. 2d
993,
996
(Fla.
2003) (It
is an
elementary principle
of
statutory
construction that
significance
and effect must be
given
to
every
word,
phrase,
sentence,
and
part
of the
statute
if
possible,
and words in a
statute
should
not
be construed
as mere
surplusage.").
It
is also consistent with the
overwhelming scholarship
on
this issue3 and the
practice
of
many
3. See Julian C.
Juergensmeyer,
3 FLORIDA LAND USE LAW 3 &
n.11,
5 n.14
(2d
ed.
1998) (referring
to
Section
163.3223 as
the "actual authorization" for local
governments
to enter
into
development
agreements
and
concluding
that Section 163.3223
"implies
that
[a]
local
government
must enact ordinances
establishing procedures
and
requirements
it will follow when
entering
into
development
agreements
if it wishes to enter into
agreements
under the
Act");
Patricia Grace
Hammes,
Development Agreements:
The Intersection
of
Real Estate Finance and
Land
Use
Controls,
31 U. BALT. L. REV.
119,
155 n.192
(1993) (concluding
that Section
11
local
governments
since the Act became law in 1986.
See,
e.g., Orange County
Code Sec.
30-14;
Hillsborough County
Land
Development
Code Part
5.05.005; Pompano
Beach
Zoning
Code
155.2428.6
And Florida
courts
have
long
held
that,
in the
context
of a
statutory
instruction
to
a
government
official to
act,
the word
"may"
is
mandatory.7
163.3223
"requir[es]
that
[a]
local
government
establish ordinances
regulating procedures
and
requirements governing development agreements");
David L. Callies & Julie A.
Tappendorf,
Unconstitutional Land
Development
Conditions and the
Development Agreement
Solution:
Bargaining
For
Public Facilities
Afier
Nollan And
Dolan,
51 CASE W. RES. L. REV.
663,
682-83
& n.83
(2001) ([T]he
Hawaii, California,
and Florida
statutes
appear
to
require
that local
governments desiring
to
negotiate development agreements
first
pass
a local resolution
or
ordinance to that
effect");
David L. Callies & Glenn H.
Sonoda,
Providing Infrastructure
For
Smart Growth: Land
Development
Conditions,
43 IDAHO L. REV.
351,
392-93 & n.240
(2007)
(same);
27 & n.138 Michael B.
Kent, Jr., Forming
a Tie That Binds:
Development
Agreements
in
Georgia
and the Need
For
Legislative Clarity,
30
ENVIRONS ENVTL. L.
& POL'Y
J.
1
(2006)
(citing
to Section 163.3223 as an
example
of
legislation
which
"require[s]
that local
governments,
in advance of
entering
into
development agreements, adopt
an
'enabling
ordinancein order to "activate the local
government's
authority"
and "minimize the
danger
of
ad hoc
transactions").
4. Available at:
https://library.municode.comnorange_county/codes/code_of
ordinances?nodeM=PTIIORCOC
O_CH3OPLDE_ARTXICOPLVERI_DIV1GE_S30-341COPOPLUT
5.
Available at:
https://library.municode.com/Whillsborough_county/codes/land_development_code?noded=AR
TVDEOP_PT5.05.00DEAG&showChanges=true&wdLOR=c014BE32A-5E36-E646-A64F-
057DDFOEB033
6.
Available
at:
7.
E.g.,
Jones v.
State,
17
Fla.
411,
417
(1880) ("According
to
the established rules for
construing
statutes this
[use
of
'may]
is
mandatory.
When a statute
says
a
thing may
be
done,
which is for the
public
benefit
by public
officers,
it shall be construed that it must be
done.");
Mitchell v.
Duncan,
7 Fla.
13,
21
(1857)
("Where
a statute directs the
doing
of a
thing
for the
sake of
justice,
the word
may
means the same as
shall.");
Matos v.
State,
359 So. 3d
794,
798
(Fla.
4th
DCA
2023) (IT]he
use
of the word
'may'
in the
beginning
of the subsection does
not
provide
the trial court with discretion as to what sentence to
impose
where the
Legislature
has
mandated a
specific
sentence.");
Agile
Assurance
Grp.,
Ltd v.
Palmer,
147 So. 3d
1017,
1018
(Fla.
2d DCA
2014) (recognizing
the word
"may"
is "not
always"
read as
permissive
and that
reading
the contractual
language "may
be instituted
exclusively"
"to be
mandatory gives
effect to
both
[of
the
emphasized] terms") (emphasis added).
See
also
§
57:12.
Directions
to
public
12
Applying
these
principles
here,
the
statutory phrase "may, by
ordinance,"
can
only
be
fairly
read in context to
require
that
any
local
government
that chooses to consider and enter into
development
agreements
under the
Act must
first
adopt
an ordinance that establishes the
procedures
and
requirements,
as
prescribed by
the Act
itself,
for
doing
so.
Reading
the statute at
issue here as
authorizing
a
local
government
to consider and enter
development agreements
under the Act without first
having adopted
the ordinance
as
mandated
by
the Act would
impermissibly
fail to
give
effect to all
statutory
terms
as
they
are
used in the context of the
statute—contrary
to
Florida law.
See
Sloban v. Fla. Bd
ofPharmacy,
982 So.
2d
26,
33
(Fla.
1st
DCA
2008)
(Ty reading 'mayas permissive
leads to an unreasonable result
or one
contrary
to
legislative
intent,
courts
may
look to the context in which
'may'
is used and the
legislature's
intent to determine whether
'may'
should be read
as
a
mandatory
term.").
It is
undisputed
that RCID
purported
to enter into the
Development Agreement
under the
Act,
see
Ex.
2, p. 3, § I(C) (Authority
for
Agreement),
but
never
enacted an ordinance
as
required by
the Act that establishes the
procedures
and
requirements
to be followed
by
the
District in
considering
and
entering
a
development agreement.
See Ex.
4, if
4.
Accordingly,
RCID lacked
authority
to enter into the
Development Agreement, making
the
Development
Agreement
ultra vires and thus void. See Edwards v. Town
of
Lantana,77
So. 2d
245,
246
(Fla.
1955) (Inasmuch
as
the
contract was
ultra vires
[because
"the
town
acted
beyond
its
prescribed
powee]
it
was
wholly void.");
P.C.B. P
'ship
v.
City of
Largo,
549 So. 2d
738,
740
(Fla.
2d DCA
1989)
(recognizing
that
an
ultra vires contract is
unenforceable);
see also Black's Law
officers,
3 Norman J.
Singer
& Shambie
Singer,
Sutherland Statutes and
Statutory
Construction
§
57:12
(8th ed.) (Consequently,
statutes
usually
are
mandatory
where
they provide
that
public
officers do certain acts or exercise certain
power
or
authority
and
private rights
or the
public
interest
require
the
doing
of such acts or the exercise of such
power
or
authority,
whether
they
are
phrased
in
imperative
or
permissive
terms."
(emphasis added)).
13
Dictionary (11th
ed.
2019)
(defining
"ultra vires" to
mean
"[u]nauthorized; beyond
the
scope
of
power
allowed
or
granted by
a
corporate
charter
or
by law")
And,
as
noted
above,
because the Restrictive
Covenants, by
their
own
terms, expressly
and
entirely depend upon
the
illegal Development Agreement,
see Ex.
3,
p.
2,
they
are
likewise
void and unenforceable.
See,
e.g.,
La
Rosa,
483 So. 2d at 473
(applying
Marks,
36 So. 2d
612).
Accordingly,
the District is entitled to
judgment
as
a matter of law
on
Count
II.
Count III: District Lacked
Authority
and Jurisdiction
to
Enter into the
Development Agreement
for
Property
Within
Municipalities
The
Development
Agreement purports
to vest in
Disney
all of the
development rights
within the District so that
Disney
can use them for the continued
development
of the Walt
Disney
World
Resort
on the
property
that
Disney
owns within the District. The
Development
Agreement
also
provides
that
any
local laws and
policies governing development
in effect on the
date of its execution
(i.e., February
8,
2023) govern development
under the
Agreement
for its
duration. See Ex.
2,
p.
7, §
IV
(Governing
Laws and
Policies).
Two
municipalities—the City
of
Bay
Lake and the
City
of Lake Buena Vista—are
located within the District's boundaries.
See Ex.
7,
Attachment
1, p.
8B-2.
The
majority
of the
property
located within the
District—including
the
majority
of
Disney's property—is
located
within the
municipalitiesboundaries.
See id. &
pp.
2B-6, 2B-8;
see also Ex.
2,
Exhibit 2
(Location Map).
When RCID
approved
and executed the
Development
Agreement, Bay
Lake
and Lake Buena Vista had exclusive
authority
over
comprehensive planning,
land
development
regulations, development
orders,
and
building permitting
within their
boundaries,
while
RCID
had exclusive
authority
over the same matters within the District's boundaries but outside of
14
these
municipalitiesboundaries.8 Thus,
when it executed the
Development Agreement,
RCID
had
no
authority
or
jurisdiction
to
approve
or
regulate development-related
activities
on
property
located within the
municipalities'
boundaries.
Yet,
as
noted,
the
Development Agreement purports
to
apply
to
property
located inside
the
municipal
boundaries of
Bay
Lake and Lake Buena Vista and
purports
to
assign
to
Disney
all
of the
development rights
within the
District—regardless
of whether such
rights
are
held
or
regulated by
the
District,
by
Bay Lake,
or
by
Lake Buena Vista. See Ex.
2,
p.
1 & Exhibits 1 and
2,
&
pp. 2-7, §§
I
(Purpose
and
Authority)
and
II
(Approved
Land
Use
and
Development Rights).
Neither
Bay
Lake
nor
Lake Buena Vista held
public hearings
on
and
signed
the
Development
Agreement;
neither
joined
in the
Development Agreement
as
a
party
thereto;
and RCID did not
sign
the
agreement
on
their behalf. See
Ex.
2.
Because RCID lacked
authority
and
jurisdiction
to
approve
or
regulate proposed
development
within the boundaries of
Bay
Lake
or
Lake
Buena
Vista,
and because these
municipalities
did not conduct
public hearings
on
and
join
as
parties
to the
Development
Agreement,
the
Development Agreement
and the Restrictive Covenants that
depend
upon
it are
void and unenforceable
as
a matter of law. See
supra p.
5-14
(strict compliance
with the Act is
necessary;
ultra vires acts
are
void).
8.
The
act
governing
RCID
that was in effect
at
the time of the
Development Agreement
authorized RCID to exercise its
planning, building
code,
development,
and
zoning powers
within
the
city
limits of
any municipality
within
RCID,
but further
provided
that where a
municipality
has "like
powers"
under its charter
or
law,
"the
authority of
such
municipal
governing
body
with
respect
to the matters herein
providedfor
shall be exclusive within such
city
limits." Ch.
67-764,
§23(2),
Laws
of Fla.
(emphasis added).
The charters of the
City
of
Bay
Lake and the
City
of Buena Vista each
provide
that the
municipality
has
power
over
comprehensive planning, zoning,
land
development regulation,
development
orders,
building permits,
and
building
codes within their
respective city
limits. Ch.
67-1104, §§ 56, 61,
Laws of Fla.
(City
of
Bay
Lake);
ch.
67-1965, §§ 56, 61,
Laws of Fla.
(City
of Lake
Buena
Vista).
15
Moreover,
the
Development Agreement's severability provision,
see
Ex.
2,
p.
8, §
XI
(Severability),
cannot
salvage
the
Agreement.
The
severability provision provides:
XI. SEVERABILITY.
If
any provision
of this
Agreement,
or
the
application
thereofto
any person
or
circumstances,
shall to
any
extent be held invalid or
unenforceable
by
a court
(or
other
government body)
of
competent jurisdiction,
then the remainder of this
Agreement
shall be valid and enforceable to the fullest
extent
permitted by
law.
Any provision(s)
held
wholly
or
partly
invalid or
unenforceable shall be deemed
amended,
and the
court
or other
government body
is authorized to reform the
provision(s)
to the minimum extent
necessary
to render
them valid and enforceable in
conformity
with the Partiesintent as manifested
herein.
Id.
By
its
plain terms,
the
severability provision
cannot even
apply
because it is
only triggered
if
a
"provisiore'
"or the
application [of
a
provision]
to
any person
or
circumstances" is "held invalid
or unenforceable." In this
case,
the entire
Development Agreement
is
an
illegal
assertion of
jurisdiction
and
authority by
RCID
over
property lying
within the
municipalities'
borders.
Thus,
it is the
Development Agreement
in its
entirety,
not
merely
a
"provision...
or
the
application
thereof,"
that is invalid and unenforceable.
But
even
if the
severability provision arguably
could be
triggered
on
the facts of this
case,
Florida law
precludes using
a
severability provision
to
gut
a
contract. The Florida
Supreme
Court has "set the
following general
standard for
determining
whether
a[n]
[illegal]
contractual
provision
is severable from the whole:
As to when
an
illegal portion
of
a
bilateral contract
may
or
may
not
be
eliminated
leaving
the remainder of the contract in force and
effect,
the authorities
hold
generally
that a contract should be treated
as
entire
when,
by
a consideration
of its
terms, nature,
and
purpose,
each and all of its
parts
appear
to be
interdependent
and common to one another and to the consideration. Stated
differently,
a
contract
is indivisible where the entire fulfillment of the
contract
is
contemplated by
the
parties
as
the basis of the
arrangement.
On the other
hand,
a
bilateral contract is severable where the
illegal portion
of the contract does not
go
to its
essence,
and
where,
with the
illegal portion eliminated,
there still remains of
the contract valid
legal promises
on one side which are
wholly supported by
valid
legal promises
on the
other.
16
Whether a contract is entire
or
divisible
depends upon
the intention of the
parties.
And this is a matter which
may
be determined
by
a fair construction of
the terms and
provisions
of the contract
itself,
and
by
the
subject
matter to which
it has reference.
Shotts v. OP
Winter
Haven, Inc.,
86 So. 3d
456,
475
(Fla. 2011);
see also
Gold,
Vann &
White,
P.A. v.
Friedenstab,
831 So. 2d
692,
696
(Fla.
4th DCA
2002) ("A
bilateral contract is severable
where the
illegal portion
of the
contract
does
not
go
to
its essence
and, where,
with the
illegal
portion
eliminated,
there still remain valid
legal promises
on one side which are
wholly
supported by
valid
legal promises
on the
other.")
Applying
this
rule,
it is
apparent
from the terms and
provisions
of the
Development
Agreement
that the
property
subject
to the
municipalitiesjurisdiction
cannot be severed from
the
Development Agreement
without
gutting
the essence of the
Agreement
itself. The
"essence"
of the
Development
Agreement
is its
purpose,
which the
Development
Agreement
defines as
follows:
The
purpose
of this
Agreement
is three-fold:
1)
It will
provide
a
binding
written
agreement
between the Parties for the
long-term development
of the
Property
and
Project
in order to vest the Maximum
Development Program
and
to
provide Certainty
to Master
Developer
[i.e.,
Disney];
and
2)
It will
stipulate
the
provision
of
necessary public
facilities
by
RCID that
will be in
place
concurrent with the demand of the Maximum
Development
Program
as
it is
constructed;
and
3)
It will
provide
clarification for how the
Comprehensive
Plan and RCID
LDRs will
apply
to the
Project,
both now and in the future.
Ex.
2, p. 3, § I(B) (Purpose).
And it
accomplishes
that
purpose by, among
other
things: (1)
vesting
in
Disney
all of the
development rights
under the Maximum
Development
Program
for
Disney
to
develop
the Walt
Disney
World
Resort,
to the exclusion of all other
property
owners
within the District's
boundaries,
see,
e.g.
Ex.
2,
p.
6, §
II(D) (Master Development
Program
17
Changes
and
Master
Developer Rights);
(2)
obligating
the District to
fund,
design
and construct
"necessary public
facilities" to meet the demand of the Maximum
Development
Program
as
it is
constructed
by Disney,
see,
e.g.,
Ex.
2, p. 3, § II(C) (Provision
of
Necessary
Public
Facilities);
and
(3)
providing
that the
Development Agreement
will control
over
any
conflict between its
terms and the District's
comprehensive plan
and land
development regulations.
See,
e.g.,
Ex.
2,
p. 7,
§
IV
(Governing
Laws
and
Policies).
Vesting
in
Disney
the universe of
development rights
within the
District,
committing
the
District
to
finance and
construct
infrastructure
relating
to
Disney's development
activities,
and
removing
the District's
regulatory
discretion
over
all of
Disney's property
located within the
District is the
purpose
of the
Development Agreement.
Inclusion of the
property
within the
municipalitiesboundaries
is nondivisible from that
purpose
and not
subject
to
severability. Cf
Wilderness
Country
Club P
'Ship,
Ltd v.
Groves,
458 So. 2d
769,
772
(Fla.
2d DCA
1984)
(holding
that a condominium recreational facilities sublease with an invalid
rent
escalation clause
was
"nondivisible and
reasoning
that the
periodic
increases under the
illegal
escalation clause
plus
the base rent that would be left without the clause "relate to one
object
or
purpose,
the use
and
enjoyment
of all recreational
facilities").
This is underscored
by
the
undisputed
fact that the
vast
majority
of
Disney's property (i.e.,
the
"Property"
referred to in the
Development
Agreement),
including
the four
primary
theme
parks,
two water
parks,
and
most
of
Disney's
hotels,
lies within the boundaries of
Bay
Lake and Lake Buena
Vista,
see
supra
at 14-15. There
can be no serious debate that
severing
that
portion
of
Disney's property
from the
Development
Agreement
vitiates the
essence
of the
Agreement. Simply put,
the land within the boundaries of
Bay
Lake and Lake Buena Vista cannot be severed from the
Development Agreement
without
18
defeating
the
express
"three-folr
purpose
of the
Development Agreement.
Ex.
2,
p.
3, § I(B)
(Purpose).
As
the Restrictive
Covenants
expressly
and
entirely depend upon
the unconstitutional
Development Agreement,
see Ex.
3,
p.
2,
they
are
likewise void and unenforceable.
See,
e.g.,
La
Rosa,
483 So. 2d at 473
(applying
Marks,
36 So. 2d
612).
Accordingly,
the District is entitled to
judgment
as
a matter of law
on
Count
III.
Count IV: Violation of Article
VII,
Section 12 of the Florida Constitution
The
Development
Agreement
requires
the District
to
levy
and collect ad valorem
taxes
from District
taxpayers
to finance
new
general obligation
bonds used to fund certain
capital
improvement projects exceeding
a
twelve-month
period.
See Ex.
2, p. 3, § II(C)
(Provision
of
Necessary
Public
Facilities)
& Exhibit 3
(Capital Improvements Schedule).
The
Development
Agreement's Capital
Improvement
Schedule is a
copy
of the
"Capital
Improvement
Element of
the
[District's] Comprehensive
Plan" and is
"incorporator
into the
Development
Agreement.
Id;
see also Ex.
7,
Attachment
1,
Part 9
(Capital
Improvement
Element).
The infrastructure
projects
listed in
Capital
Improvement
Schedule "will be
funded,
designed
and constructed or
caused to be constructer
by
the District
"[i]n
order to facilitate the
implementation
of and
provide adequate
levels of service for the Maximum
Development Program."
Ex.
2,
p.
3, §
II(C).
For
example,
Table 9-7 of the
Capital
Improvement
Schedule is a schedule of the road
projects
that the
Development Agreement obligates
the District to
fund,
design,
and construct or
cause
to be constructed. Table 9-7 lists the
"Funding
Source for each
project;
all the
projects
on
Table 9-7 will be funded
using
bond
funds,
and
Projects
4, 5, 6,
and 7
(all
of which
are
to start in
fiscal
year 2025)
will be funded with
new
bond funds. The total
amount
of
new
bond funds
19
required
for
Projects
4,
5,
6,
and
7
is
$304,000,000.00
through
fiscal
year
2027,
with an
additional
$240,000,000.00
projected
in fiscal
years beyond
that. In its
Comprehensive
Plan,
the
District
acknowledged
that it would have
to
issue additional
general obligation
bonds secured
by
its ad valorem tax
revenue
in order to
pay
for these road
projects.
See Ex.
7,
Attachment
2,
pp.
9B-8-9, 9B-21-22,
and 9B-39.
Article
VII,
section 12 of the Florida Constitution allows the District to issue such
general obligation
bonds to finance
capital projects
that
are
payable
from the District's ad
valorem taxation and that
mature more
than twelve months after their issuance—but
only
when
approved by
"vote of the electors who
are owners
of freeholds therein not
wholly exempt
from
taxation." Art.
VII, § 12,
Fla. Const. And while the District's
Comprehensive
Plan sets forth
a
plan
to issue such
bonds,
the District
always
retained the discretion to
proceed
forward with that
plan.
Now,
however,
the
Development
Agreement purports
to
require
the District
to
fund,
design,
and construct these road
projects.
And that
can
only
be done
by requiring
the District to
issue new
general obligation
bonds secured
by
the District's ad valorem tax revenues. Because
the
Development Agreement
would eliminate the District's "full
budgetary flexibility"
and
instead
"comper
the District to
pledge
ad valorem taxes to
comply
with the
Agreement,
it
creates
a
general obligation
debt of the District for
capital improvement projects exceeding
a
twelve-month
period.
Frankenmuth Mut. Ins. Co. v.
Magaha,
769 So. 2d
1012,
1026
(Fla.
2000)
(quotations omitted) (recognizing
that
a
nonsubstitution clause in
a
long-term agreement
pledging
funds from ad valorem taxes entered into without voter referendum violates article
VII,
section 12 and is
unenforceable);
see also
City of
Oldsmar v.
State,
790 So. 2d
1042,
1051
(Fla.
2001) (recognizing
the
City's ability
to
raise,
in a
proceeding
separate
from a
statutory
bond
20
validation
proceeding,
"the issue of whether the
[Joint Project Agreement
between the
City
and
the Florida
Department
of
Transportation]
is a
long-term
bond
or
certificate of indebtedness
subject
to
and violative of article
VII,
section
12
of the Florida
Constitutioe). RCID,
however,
failed to obtain the vote
required
to
comply
with article
VII,
section 12. See Ex.
4, if 4;
Ex.
5, if
3
& Attachment 1.
Moreover,
because the
Development Agreement's
unconstitutional
pledge
is
inseparable
from the
Agreement's express purpose
to
provide
for the
"long-term development
of the
Property
and
Project
in order
to vest
the Maximum
Development Program
and
to
provide
certainty
to
[Disney]
and to
provide "necessary public
facilities
by
RCID that will be in
place
concurrent with the demand of the Maximum
Development
Program
as it is
constructed,"
Ex.
2,
p.
3, § I(B)
(Purpose),
the entire
Development Agreement
is unenforceable. See
Frankenmuth,
769 So. 2d at 1026 n.15
(recognizing
that if the
provision
of an
agreement
that violates article
VII,
section
12
"is
not
severable from the remainder of the
agreement,
then the entire
agreement
must be invalidated
as
violative of article
VII,
section
12).
There is
no
other
way
to
parse
the
Development Agreement.
Not
only
are these
capital improvement projects
identified as the
purpose
of the
Development Agreement,
but the
Agreement
further
provides
that the
projects
are
"necessary"
to "facilitate the
implementation
of and
provide adequate
levels of service for the
Maximum
Development
Program."
Ex.
2, p. 3, § II(C) (Provision
of
Necessary
Public
Facilities).
As the Restrictive Covenants
expressly
and
entirely depend
upon
the unconstitutional
Development Agreement,
see
Ex.
3,
p.
2,
they
are
likewise void and unenforceable.
See,
e.g.,
La
Rosa,
483 So. 2d at 473
(applying
Marks,
36 So. 2d
612).
Accordingly,
the District is entitled
to
judgment
as
a
matter
of law
on Count IV.
21
Count
VI:
Unlawful
Delegation
of Governmental
Authority
to Private
Entity
As noted
above,
Florida law
prohibits
a local
government
from
contracting away
its
discretionary legislative power.
See
Morgran
Co.
v.
Orange Cnty.,
818 So.
2d
at
643;
see also
Hartnett,
93 So. 2d at 89
(recognizing
"the
long-established principle
that a
municipality
cannot
contract
away
the exercise of its
police powers").
Thus,
for
example,
the
practice
of "contract
zoning"—whereby
a local
government agrees
with a
private
landowner to "rezone
property
for
consideration"—"has
long
been
disapproved."
Morgran,
818 So. 2d at
643;
see also P.C.B.
P'ship,
549 So.
2d
at 741
(holding
contract
purporting
to
restrict
City's decision-making
authority
on
development
issues
was
ultra
vires
and therefore
unenforceable). Addressing
the
prohibited practice
of contract
zoning
in the context of
a
development agreement,
the Fifth
District held in
Morgran
that
by obligating
itself to
support
the
private
landowner's
rezoning
request,
the
County
had
"invalidly
contracted
away
its
discretionary legislative power
as
the final
decision-making authority."
818 So.
2d
at
643;
see also
Hartnett,
93 So.
2d
at 89
(If
each
parcel
of
property
were
zoned
on
the basis of variables that could enter into
private
contracts
then the whole scheme and
objective
of
community planning
and
zoning
would
collapse.");
Chung
v. Sarasota
Cnty.,
686 So. 2d
1358,
1360
(Fla.
2d DCA
1996)
(explaining
that
hearings
on
zoning
amendments would not
satisfy
due
process
and instead "would be a
pro
forma exercise
since the
County
has
already obligated
itself
to
a decisioe
by entering
a settlement
agreement
that
obligated
it to
rezone
the
private
landowner's
property).
Here,
Disney's Agreements
are even more
egregious
than contract
zoning,
which Florida
courts hold
impermissible.
The
Agreements
do not
merely
freeze in
place existing
land
development regulations applicable
to
Disney's property.
Instead,
they
substitute
Disney
for the
District
as
the final
authority
on
all land
use
decisions for all landowners within the District
22
(including
the District
itselp—for
the next 30
years.
And because the
very point
of the
Agreements
is to cede the
entirety
of the District's
authority
to
Disney
and
simultaneously
remove
all the District's
discretion,
see
Ex.
2, §§ I,
II &
IV, severability
is
not
available.
See
Shotts,
86 So. 3d at 475. As a
result,
the
Agreements
are
void and unenforceable.
A. The
Development
Agreement
The
Development Agreement
violates this black-letter law
by purporting
to
give Disney
final
decision-making authority
in three main
ways—any
of which constitutes an unlawful
delegation
that voids the
agreement
and entitles the District
to
judgment
as
a
matter
of law.
First,
the
Development Agreement
elevates itself above
binding legislative
acts
by
providing
that it "shall
prevair
if there is
any
conflict between the
Development Agreement
and
the
joint comprehensive plan
or
the District's land
development regulations.
Ex.
2,
p. 7,
§
IV
(Governing
Laws and
Policies).
In
doing
so,
the
Development Agreement
also
runs
afoul of the
statutory
requirement
for
any development
agreement
to
be "consistent with the local
government's comprehensive plan
and land
development regulations."
§
163.3227(1)(g),
Fla.
Stat.
Second,
the
Development Agreement
cedes to
Disney governmental
functions that the
Florida
Legislature expressly
authorized RCID to
perform, including
the
power
to
regulate every
other landowner within the District.
For
example,
the
Development
Agreement
assigns
"all of
the
development rights
and entitlements...
applicable
to all additional
approved development
through
2032" within the District to
Disney.
Ex.
2, p. 6, § II(D)(2).
As
a
result,
the
Development Agreement purports
to
require any
other landowner in the District to first
obtain,
at
Disney's
discretion,
the
necessary development rights
from
Disney
and then obtain
Disney's
"prior
written
approvebefore undertaking any
such
development.
Id
But
the Florida
23
Legislature empowered
RCID to
"[r]egulate,
restrict and determine... the
density
of
populatioe
and "the
use
of
buildings,
structures,
land and water for...
any
and all other
purposes."
Ch.
67-764, § 23(8)(a),
Laws
of
Fla.9
The
Development
Agreement
further
gives
Disney
the
authority
to set maximum
building heights
for all landowners in the District. See Ex.
2, p. 3, § II(B)
(Maximum Building Heights).
Yet the Florida
Legislature empowered
RCID to
set
building heights.
See ch.
67-764, § 23(8)(a),
Laws
of Fla.
([T]he
Board of
Supervisors
shall
have the
power
to:...
Regulate,
restrict and determine the
location,
height,
number of stories...
of
buildings
and other
structures...
.") (emphasis added).1°
The
Development
Agreement
thus
purports
to make
Disney
the
zoning authority
for itself and all other
property
owners
within the
District,
thereby expressly exceeding
the
permissible
scope
of
development agreements,
which
only
allow a local
government
and a
developer
to
specify "development
uses
... and
building
intensities and
height"
for
any
real
property
in which the
developer
has "a
legal
or
equitable
interest."
§§ 163.3223, 163.3225(2)(b), 163.3227(1)(c),
Fla.
Stat.
Third,
the
Development Agreement
eliminates the District's
authority
to
periodically
reassess its
planned projects.
Instead,
it
requires
the District to
"fund[], design[]
and
construct[]"
public
facilities to accommodate
Disney's
future
growth,
and it further
requires
the District to
commit future ad valorem tax
revenues
to do
so.
Ex.
2,
p.
3, § II(C)
and
supra
at 19-20. And it
does
so
contrary
to
Florida law
mandating
the
periodic
reassessment
by
local
governments
of
their
planned projects.
For
example,
section
163.3177(3)(b),
Florida
Statutes,
requires
the
District to review the
capital improvements
element of its
comprehensive plan
"on
an
annual
9. The District's
new
charter likewise
empowers
it to
perform
the
same
functions. See
ch.
2023-5, §
9(a),
Laws of Fla.
10.
Id.
24
basis,"
and authorizes the District to
update
the
5-year capital improvement
schedule
by way
of
ordinance,
rather than
by
amendment to the
comprehensive plan
itself. The
Development
Agreement's
decades-long
lock-in of the District's
capital improvement
schedule and
use
of
future ad valorem tax
revenue
violates this
statutory
review and
updating
schedule.
Further,
section
163.3191(1),
Florida
Statutes,
directs
a
local
government
to "evaluate its
comprehensive plan
to determine if
plan
amendments
are
necessary
to reflect
changes
in state
requirements"
lalt
least
once
every
7
years."
The
same
statute contains another
provision
that
before
July 1, 2023, "encouraged"
but
now
requires
local
governments
"to
comprehensively
evaluate
and,
as
necessary, update comprehensive plans
to reflect
changes
in local conditions."
Compare
§ 163.3191(3),
Fla. Stat.
(2022)
(Local governments
are
encouraged
to
comprehensively
evaluate
and,
as
necessary, update comprehensive plans...
.")
(emphasis
added),
with ch.
2023-31, § 2,
Laws of Fla.
(Local governments
shall
comprehensively
evaluate
and,
as
necessary, update comprehensive plans... .") (emphasis added).
But
instead of
preserving
the District's
ability
to
adjust
its
planned projects
as
needed,
the
Development
Agreement requires
the District to
give priority
to
Disney's growth
and
impermissibly yields
basic land
use
functions to
Disney.
B. The Restrictive Covenants
Like the other
Counts
addressed
above,
the
invalidity
of the
Development
Agreement
extends to the Restrictive Covenants
that,
by
their
own
terms,
expressly
and
entirely depend
upon
the
validity
of the
Development Agreement.
See Ex.
3, p.
2.
But,
with
respect
to Count
VI,
the Restrictive Covenants
are
independently
void because
they
also
unlawfully delegate
governmental authority
to
Disney
in several
ways. Specifically, they
restrict the
use
of the
District's
property
to
the
uses
previously agreed
to
by Disney.
See Ex.
3, p. 3, §
2.1
(Permitted
25
Uses).
They
allow
Disney
to
censor
the District
by precluding
the District from
engaging
in
speech
on
its
own
property
about
anything
other than the District.
Id,
p.
3, §
2.2
(Prohibited
Uses).
And
they prohibit
the District from
altering
its
own
property
absent
Disney's
review and
consent.
Id,
pp.
3-4, §
3
(Design
Review of
Improvements
and
Alterations).
In other
words,
Disney
now
purports
to control what the
government
can do with and
say
on its own
property.
Because
by
their
plain
terms the
Agreements improperly delegate governmental authority
to
Disney
in direct contravention of black-letter Florida
law,
they
are
void,
and the District is
entitled
to
summary judgment
on Count VI.
V. CONCLUSION
That
Disney,
a
private entity, effectively governed
itself
through
RCID for decades does
not
change
the fact that RCID
was
a local
government.
As
such,
RCID
was
required
to
comply
with Florida
constitutional,
statutory,
and
common
law in
exercising
its
governmental
functions.
The
undisputed
facts show that
RCID
failed
to so
in several
key
respects
that render the
Agreements
void and unenforceable
as
a matter of law.
Accordingly,
the District
respectfully
requests
that the Court enter
summary
judgment
on Counts
I, II, III, IV,
and VI of the District's
Corrected
Complaint
for
Declaratory
and
Injunctive
Relief,
and
any
other relief that the Court
deems
just
and
proper.
26
Dated:
August
15,
2023
Respectfully
submitted,
/s/ Alan Lawson
DAVID THOMPSON ALAN LAWSON
(FBN: 709591)
PETE PATTERSON PAUL C. HUCK JR.
(FBN: 968358)
JOSEPH MASTERMAN
(FBN: 1004179)
JASON GONZALEZ
(FBN: 146854)
MEGAN WOLD LAWSON HUCK
GONZALEZ,
PLLC
COOPER & KIRK 215 S. Monroe
Street,
Suite 320
1523 New
Hampshire Ave., N.W.,
Tallahassee,
Fl
32301
Washington,
D.C. 20036 850-825-4334
202-220-9600
[email protected]
[email protected] [email protected]
[email protected] [email protected]
[email protected]
[email protected]
MICHAEL A. NARDELLA
(FBN: 51265)
JOHN J.
BENNETT,
JR.
(FBN: 98275)
NARDELLA &
NARDELLA,
PLLC
135
W.
Central
Blvd.,
Ste. 300
Orlando,
FL 32801
407-966-2680
mnardella@nardellalaw.com
jbennett@nardellalaw.com
nmacdougall@nardellalaw.com
Counsel
for
Central Florida
Tourism
Oversight
District
27
CERTIFICATE
OF
SERVICE
I HEREBY CERTIFY that the
foregoing
was
electronically
filed with the Clerk of Court
on
August
15, 2023,
by using
the Florida Courts
eFiling
Portal,
which will
provide
electronic
notification
to
all counsel of record in this
action,
as set
forth herein:
Adam
Losey (FBN: 69658)
Alan Schoenfeld
(NY
Bar No:
4500898)
M. Catherine
Losey (FBN: 69127)
WILMER CUTLER PICKERING
LOSEY PLLC HALE AND DORR LLP
1420
Edgewater
Drive 7 World Trade Center
Orlando,
Florida 32804 250 Greenwich Street
alosey@losey.law
New
York,
NY
1007
closey@losey.law [email protected]
docketing@losey.law
Daniel
M.
Petrocelli
(CA
Bar No.:
97802)
Jonathan
D.
Hacker
(DC
Bar No.:
456553)
O'MELVENY & MYERS LLP
Stephen
D.
Brody (DC
Bar No.:
459263)
1999 Avenue of the Stars O'MELVENY & MYERS LLP
Los
Angeles,
CA 90067 1625
Eye
Street NW
[email protected] Washington,
D.C. 20006
[email protected]
[email protected]
David
Thompson
Alan Lawson
(FBN: 709591)
Pete Patterson Paul C. Huck Jr.
(FBN: 968358)
Joseph
Masterman
(FBN: 1004179)
Jason
Gonzalez
(FBN: 146854)
Megan
Wold
LAWSON HUCK
GONZALEZ,
PLLC
COOPER & KIRK 215 S. Monroe
Street,
Suite 320
1523 New
Hampshire
Ave.,
N.W
Tallahassee,
Fl 32301
Washington,
D.C. 20036
[email protected]
[email protected] [email protected]
[email protected] [email protected]
[email protected] [email protected]
[email protected] [email protected]
[email protected]
Michael
A.
Nardella
(FBN: 51265)
John
J.
Bennett,
Jr.
(FBN: 98275)
NARDELLA &
NARDELLA,
PLLC
135 W. Central
Blvd.,
Ste. 300
Orlando,
FL 32801
mnardella@nardellalaw.com
jbennett@nardellalaw.com
nmacdougall@nardellalaw.com
/s/ Alan Lawson
ALAN LAWSON
28