HomeMy WebLinkAbout02211989City of Sebastian
POST OFFICE BOX 780127 [] SEBASTIAN, FLORIDA 32978
TELEPHONE (407) 589-5330
MINUTES
SEBASTIAN CITY COUNCIL
SPECIAL MEETING
TUESDAY, FEBRUARY 21, 1988 - 1:00 P.M.
CITY COUNCIL CHAMBERS
1225 MAIN STREET, SEBASTIAN, FLORIDA
Mayor Votapka called the special meeting to order at
1:00 p.m.
2. ROLL CALL
Present:
Councilman George Metcalf
Councilman Robert McCarthy
Councilman Peter Vallone
Vice Mayor Kenneth Roth
Mayor Richard Votapka
Also Present:
City Manager, Robert McClary
City Attorney, Charles Nash
City Engineer, Horry Johns
City Clerk, Kathryn O'Halloran
Deputy City Clerk, Sally Maio
FAA Supervisor for Project Development, Bill Langley
and FAA Manager for Plans and Programs, Ilia
Quinones-Flott were in attendance as well as members
of the Airport Advisory Board as follows:
Robert Morrow, Chairman
Earl Masteller, Vice Chairman
Ed Paluch
Rene Van de Voorde
Mike Kennedy
Ted Ahneman
1
Mayor Votapka stated the purpose of the meeting was
to review the proposed airport referendum and discuss
possible procedures to release deed restrictions by
exchanging airport capacity by constructing a new
airport or by enhancing capacity of another existing
airport.
Vice Mayor Roth, Councilman McCarthy and Councilman
Vallone expressed dissatisfaction with the lack of an
agenda item for Citizens Airport Watch.
3. PRESENTATION - FAA
Mr. Langley stated that the FAA had no presentation
to make but would answer questions regarding the deed
and use of the airport. He referred to the letter
from James E. Shepard, FAA Manager, dated February
15, 1989 to the City Manager, as the position of the
FAA.
4. COMMENTS - CITY COUNCIL
Mayor Votapka gave a brief history of the airport,
airport master plan and airport referendum question.
In response to questions from Council, Mr. Langley
said the airport as it exists can meet the needs of
the city and the FAA has no authority to require the
city to increase airport size; the FAA would not be
opposed to working with the city to transfer
agreements to build a new airport although they could
not provide the funding; the FAA would not oppose
sale of surplus airport property for uses compatible
with the airport such as public and educational
facilities; that the airport referendum question
restricts the generating of funds from non airport
uses for the airport; the FAA in some cases has
provided financial assistance in the buying out of
homes adjacent to airports and in the elimination of
noise problems; the FAA would not participate
financially in the relocation of fixed base operators
in the case of a capacity swap; FAA would listen to
any proposals of the city to relocate although could
not guarantee approval since it believes there is an
aviation need in Sebastian; and if the airport
reverter clause was enforced as a last resort the
airport would be sold as surplus property.
Ms. Quinones-Flott said that the Airport Master Plan
provides a vehicle to identify what needs in addition
to aviation uses the city may propose to develop at
the airport.
2
Attorney Nash summarized his opinion on the airport
referendum question as stated in his letter to City
Council dated February 20, 1989.
Mayor Votapka called recess at 2:45 p.m. and
reconvened the meeting at 2:55 p.m. Vice Mayor Roth
left the meeting at this time.
5. COMMENTS - AIRPORT ADVISORY BOARD
At this time City Council relinquished their seats at
the Council table to Airport Advisory Board members
as listed on page one of these minutes.
In response to questions by board members, Mr.
Langley said the FAA cannot require the City to
increase airport capacity beyond its present size
even if proposed in the Airport Master Plan;
reassured a member that all that the FAA can do is
require maintenance of the airport as stated in the
deed; expressed concern for how the airport
referendum would dictate how funds can be expended;
that enforcement of the reverter clause would be a
last resort; and that the PART 150 Noise Study is the
established procedure to set noise levels.
At 3:45 p.m. City Council assumed their seats at the
Council table.
6. COMMENTS - FIXED BASE OPERATORS
In response to Steve Johnson, Sebastian Aero
Services, Mr. Langley said if the FAA finds the
airport in non-compliance with agreements it would
make an effort to restore compliance before putting
the reverter into effect and that if one airport is
pulled from the state's system it impacts all other
airports. Mr. Johnson, in response to Mayor Votapka,
said that fixed base operators will seek restitution
if there is a violation of their contracts with the
City. Dan Maher, Velocity Aircraft, concurred with
Steve Johnson's statement.
COMMENTS - PUBLIC
John Evans, Counsel for Citizens Airport Watch, said
this meeting was a political exercise designed to
sway the public; that the FAA has no rule or
authority requiring prior study for noise and that
Council has not yet read any credible legal opinion.
MOTION by Metcalf
I move we extend the meeting five minutes.
MOTION died for lack of a second.
8. Mayor Votapka adjourned the meeting at 4:00 p.m.
Approved at the March 8, 1989 Regular Council Meeting.
Richard B. Votapka, Mayor
liathr¥~M. O'Halloran, City Clerk
4
U.~ D~artment
ot TransDortation
Fecleral Aviation
Administration
UL
I
Orlando Airports District Office
4100 Tradecenter Street
Orlando, Florida 32827-5096
February 15, 1989
Mr. Robert S. McClary
City Manager
City of Sebastian
Post Office Box 780127
Sebastian, FL 32978
Dear Mr. McClary:
This letter represents FAA's position regarding the matter
described in your letter of January 19 regarding Sebastian
Airport.
The City of Sebastian's action in adopting Resolution No. R-88-16
and proposing the amendment to the City Charter, makes it appear
that the City is no longer interested in the airport serving as
the transportation facility that was specified in the Quitclaim
Deeds transferring the property to the City of Sebastian . If
this is the case, the City may wish to request that the property
be reverted to the federal government.
We ~cept your invitation to attend the City Council meeting
scheduled for 1:00 p.m. on February 21, 1989. Mr. Billy Langley,
Supervisor of the Program Development Section, will represent the
FAA. Please understand our participation will be limited to
answering questions or clarifying issues posed by the City
officials. We will not become involved in a public discussion of
t ~ issues over which the community may be divided.
Our Chief Counsel's letter of January 10, 1989, advised your City
Attorney of the problems with the proposed Charter amendment
relating to user fees and noise restrictions. Additionally, the
proposed amendment to paragraph 10 restricts the use of airport
revenues from the golf course and places an interpretation upon
the City Resolution R-86-4A, to which the FAA has not agreed.
In response to your specific questions, we offer the following:
If the Charter is amended, the City of Sebastian may well be
in non-compliance with the reservations and restrictions of
the Quitclaim Deed of 1959. An appropriate remedy would be
determined by the FAA at that time.
Page 2
Generally, a release of the deed restrictions on airport
land will not be given unless the proposal is fully
supported to the satisfaction of the FAA, showing that civil
aviation will benefit from the release. The suggestion that
the airport be replaced with comparable facilities at
another location could be considered if determined to be
feasible with no adverse impacts. However, Federal funds
would not be available for construction of such a facility
since the existing airport c ~ serve those needs.
The FAA intends to work with the City to resolve the problems and
issues affecting the orderly conduct of business at the Sebastian
Airport. We view the Sebastian Airport as an integral part of
the national aviation system, and as such, an asset to the city,
the state, and the nation.
Sincerely,
/'~ames E. Sheppard
~/Manager
cc: Jack Johnson, FDOT
~AStt & I~ALLACE. P.~,
~i,~TTORNEYS AT LAW
February 20, 1989
930 S. l:L~-om CxT¥ BLVD.
SUXTm 505
]~'..Et-I~OURN]:n. ~LORIDA 32901
(407) 984-3300
FAX (407) 951.3741
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
Post Office Box 780127
Sebastian, Florida 32958-0127
RE'
Sebastian Municipal Airport Referendum
Our File #88-2920
Dear Mayor Votapka and Members of Council:
I am writing this letter in response"tO'your .request.for a
written opinion concerning.legal issues surrounding the,'
Referendum initiated by.the Citizens'.Airport Watch,.. Pursuant-to..~.
your direction, I have written to Mr.-Gregory S. Walden, ~Chief
Counsel for the Federal Aviation Administration, and asked for
his written opinion as to whether passage of the Referendum, as
proposed, would jeopardize the title to the airport land
currently held by the City. In addition, I asked Mr. Walden for
his opinion as to whether or not any provisions of the proposed
Referendum violates the United States Constitution or provisions
of Federal law. I have also engaged the services of Mr. William
Potter, an attorney practicing in the area of aviation law, and
have asked for his written opinion as to the validity of the
provisions in the proposed Referendum when compared to the
following:
1. the Federal Aviation Act of 1958;
2. the Surplus Property Act of 1944;
3. the United States Constitution, specifically, the
Commerce Clause, the Supremacy Clause, and the Equal Protection
Amendment;
4. the provisions of the Quit Claim Deed which conveyed
the property occupied by the Airport from the United States to
the city of Sebastian;
5. the grant assurances and agreements for airport
improvement programs, as published in Volume 53, Number 22, of
the Federal Register; and
Honorable Richard B. Votapka, Mayor
Members of the city Council
City of Sebastian
February 20, 1989
Page Two
6. the Airport and Airway improvement Act of 1963, as
amended by the Airport and Airway Safety and Capacity Expansion
Act of 1987.
In their written responses, both Mr. Potter and Mr. Walden
explained the significant problems associated with the Referendum
proposals concerning landing fees and noise restrictions. In
addition, Mr. Potter discussed actions required by the Referendum
which appear to be in violation of the Surplus Property Act as
well as other actions which will trigger the reverter clause in
the Quit Claim Deed. I have provided copies of these letters to
you.
I have received a copy of correspondence from Mr. ~Stanley J ......
Green, General Counsel for the General Aviation'Manufacturers-
Association, directed to Mayor Richard B, Votapka, which
discusses the landing fee and noise regulation'proposals in the
Referendum as well as .the proposed restriction on accepting grant
money. Although Mr. Green represents an interested party, I
believe that his comments should be carefully considered.
In preparing this opinion, I have relied upon the following:
1. Article I, Section 10 of the United States
Constitution;
2. Article I, Section 10, Article II, Section 3, Article
5, Sections 1, 2, and 6, Article VII, Section 12, Article VIII,
Section 2, Article X, Section l0 of the Florida Constitution;
'3.
(1987);
Chapters 125, 166, and 775 of the Florida Statutes
4. Opinion of the Attorney General of the State of Florida
No. 81-76;
5. the Charter of the City of Sebastian, Florida;
6. Chapters 1 and 17 of the Code of Ordinances of the City
of Sebastian;
7. Resolutions R-85-44, R-86-4-A, R-88-16, and R-88-69 of
the City of Sebastian;
8. Quit Claim Deed between the United States of America
and the City of Sebastian, dated January 29, 1959;
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Three
9. Joint Participation Agreement between the State of
Florida Department of Transportation and the City of Sebastian,
dated February 28, 1978;
10. Application for Airport Master Plan for Sebastian
Municipal Airport, dated January 1985;
11. Grant Agreement between the Federal Aviation
Administration and the City of Sebastian, dated March 6, 1986;
12. Plan For Financing For $2,050,000 For Recreational
Facilities Revenue Bonds - Series 1985;
13. Sebastian Municipal Airport Master Plan,'dated
December, 1988;' .-..~'~..~"~'..-.~.~- .3-
14. Leases between the City of Sebastian and J. & S.
Aviation, Inc., Golden Horn Aviation,' Inc.,.~Fly Florida,'-Inc.,
John Valentine, and Mid-Florida Schutzhund Club; and .... ."
15. a Sublease between Fly Florida, Inc. and Sebastian Aero
Services.
ISSUES PRESENTED
1. Does the Amendment to Paragraph 7 of Section 1.02 of
the Charter of the City of Sebastian, as proposed by the
Referendum, impede the City's ability to manage and operate the
airport pursuant to covenants contained in the Quit Claim Deed?
2. Are the self-supporting provisions of Paragraph 7.1 of
the Charter Amendment in conflict with any existing ordinances or
resolutions of the City?
3. Do the provisions of Paragraph 7.2 of the Charter
Amendment unlawfully restrict the exercise of the governmental,
corporate, and proprietary powers of the city of Sebastian as
provided in the Florida Constitution and the Municipal Home Rule
Powers Act?
4. Do provisions of Paragraph 7.3 of the Charter Amendment
severely and adversely affect the City's ability to receive a
grant or other form of financial assistance from the State or
Federal government or any other public, quasi-public, or private
entity?
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Four
5. May the City impose a minimum penalty of not less than
one.thousand dollars ($1,000) against the owner or operator of an
aircraft which is in violation of an airport noise regulation as
provided in Paragraph 7.4 of the proposed Charter Amendment?
6. May the City require that an aircraft owner or operator
pay a fine for the violation of an aircraft noise ordinance
within fourteen (14) days of the date of violation?
7. Do the landing fee provisions contained in Paragraph
7.5 of the proposed Charter Amendment conflict with existing City
ordinances or resolutions?
8. Do the revisions to Paragraph 10 of Section 1.02 of the
Charter, as proposed-by-theReferendum,-~;iol'ate"any, existing'-~". ....
ordinances or resolutions of the City or conflict with the intent
and purpose of the Quit Claim Deed?
9. Do the noise limitations and landing fees, as proposed
by the Referendum, provide a basis for a cause of action against
the City of Sebastian by the existing Lessees at the Sebastian
Municipal Airport?
RESPONSE
1. The amendatory language in Paragraph 7 of Section 1.02
of the Home Rule Charter of the city of Sebastian, as proposed by
the Referendum, significantly impedes the City's ability to
manage and operate the Airport pursuant to the covenants between
the City and the United States, particularly with regard to
Paragraph 2 of the Quit Claim Deed which requires that, "... all
structures, improvements, facilities and equipment in which this
instrument transfers any interest shall be maintained for the use
and benefit of the public at all times in good and serviceable
condition ..."
2. The self-supporting provisions of Paragraph 7.1 of the
Charter Amendment directly conflict with Sections 7 and 12 of
Resolution R-86-4-A of the city of Sebastian.
3. The provisions pertaining to financing in Paragraph 7.2
of the Charter Amendment unlawfully restrict the city of
Sebastian's exercise of its governmental, corporate, and
proprietary powers as provided by Article VIII, Section 2 of the
Florida Constitution and the Municipal Home Rule Powers Act,
codified as Chapter 166 of the Florida Statutes (1987).
Honorable Richard B. Votapka, Mayor
Members~of the City Council
City of Sebastian
February 20, 1989
Page Five
4. The provisions of Paragraph 7.3 of the Charter
Amendment severely and adversely affect the City's ability to
receive a grant or other form of financial assistance due to the
restrictions imposed by Paragraph 7.1 of the Charter Amendment
which would preclude the City's use of its full taxing authority
to provide guarantees for any financial assistance.
5. It is highly unlikely that a court of competent
jurisdiction would uphold a municipal ordinance which requires
the payment of a minimum penalty of not less than one thousand
dollars ($1,000.00).
6. The City may not enact an ordinance which purports to
regulate the time in which a violation of a municipal ordinance
can be heard by a court~'of competent 'jurisdiction.- ~ i.~-~ ~ ...... ....- '
7. The landing fee provisions contained in Paragraph 7.5
of the Charter Amendment directly.conflict with~Section_17-4 of
the Code of Ordinances of the City of Sebastian, ~which prohibits
"touch and go" airport movements.
8. The revisions to Paragraph 10 of Section 1.02 of the
Charter, as proposed by the Referendum, are in direct conflict
with Sections 7 and 12 of Resolution R-86-4-A of the City of
Sebastian.
9. The noise limitations and landing fees proposed by the
Referendum provide a basis for a cause of action for the current
airport leaseholders based upon the theory of interference with
obligation of contract.
ANALYSIS
Paragraph 7 of Section 1.02 of the City Charter now requires that
a referendum election be held before the City of Sebastian can
... lengthen or relocate any runway; construct any new
runway, new taxiway, or any airport terminal, allow a
control tower, install any additional taxiway or runway
lights, except lights on the existing primary runway
(designated as 4-22); or install any navigational aid
or instrumentation for the primary purpose of promoting
or accommodating jet aircraft traffic ...
This restriction on the City's management of the Airport is
limited by this provision to ne__w construction. The Quit Claim
Deed between the United States and the City of Sebastian does not
Honorable Richard B. Votapka, Mayo?
Members of the City Council
City of Sebastian
February 20, 1989
Page Six
require the City to engage in new construction. However, Section
2 of the Quit Claim Deed does require that the City shall
maintain the existing airport facilities "in good and serviceable
condition, to assure sufficient operation.''~ The proposed
Amendment to Paragraph 7, as presented in the Referendum,
provides that a referendum must be held if the City desires to
"strengthen or otherwise make improvements to any runway which
are not necessary for the maintenance of the facility in good
repair." This clause provides the basis for a cause of action on
the part of any taxpayer of the City of Sebastian to challenge
any type of City maintenance of the airport facilities on the
grounds that such activity is not necessary for maintenance of
such facility in good repair. This would cause the City to
defend each and every such suit with evidence from recognized
experts indicating that..the~needed repair was,-~in fact, ..... ~ ........
necessary. Such litigation could delay needed maintenance
whereby a runway or other facility could deteriorate to the point
of being unsafe.
Resolution R-86-4-A of the City of Sebastian was adopted.on
February 16, 1986. Sections 2 and 3 of that Resolution require
that the Sebastian Municipal Golf Course shall pay the Airport
Fund a user fee for the use of the 154 acres of airport property
which is occupied by the golf course. Section 7 of the same
Resolution provides that in addition to the annual payments, the
City shall, as further consideration for the use of airport
property for a golf course, provide police and fire protection
and necessary administrative services to the Airport for no
charge. The Referendum proposes, in Paragraph 7.1, that, to the
extent not directly barred by Resolution R-86-4-A, all facilities
shall be constructed ... maintained ... operated,
managed and regulated solely and exclusively with
actual revenues directly derived from or generated by
fees, charges, rents, commissions, concessions, or
other required payments imposed or established by the
City in connection with the use of such airport
facilities.
The Referendum also proposes to add an Amendment to Paragraph l0
of Section 1.02 of the City Charter which defines the term
"necessary administrative services," as used in Paragraph 7 of
Resolution R-86-4-A to mean "solely those administrative services
necessary to provide police and fire protection to such Sebastian
Municipal Airport." This interpretation of Section 7 of
Resolution R-86-4-A significantly reduces the existing
consideration provided on behalf of the golf course to the
Honorable Richard B. Votapka, Mayor
Members of the CitylCouncil
City of Sebastian
February 20, 1989
Page Seven
Airport Fund. The proposed Paragraph 7.1, when analyzed in
conjunction with the proposed Amendment to Paragraph 10, is in
direct conflict with Section 12 of Resolution of R-86-4~A which
provides that, "This Resolution may be amended only with a letter
of concurrence or a letter of no objection from the Federal
Aviation Administration, its successors or assigns." The Federal
Aviation Administration has not issued such letter. The
Sebastian Municipal Golf Course is required, under the terms of
the Quit Claim Deed, to provide consideration in the amount of
fair market value for the use of the Airport property. Failure
to do so would constitute a violation of the covenants between
the City of Sebastian and the United States of America.
The City of Sebastian, as a municipality incorporated under the
laws of the State of Florida, has the governmental, corporate,
and proprietary powers to enable it to conduct municipal
government, perform municipal functions, and render municipal
services, pursuant.to authority._.granted by Article.VIII, Section
2 of the Florida Constitution and the. Municipal Home Rule Powers~
Act, provided that the exercise of such powers are not expressly
prohibited by law.-~ Section 166.111, Florida Statutes (1987)
provides, among other things, that a municipality may borrow
money and contract ~oans without the necessity of a referendum.
Section 166.121, Florida Statutes (1987) allows the governing
body of a municipality to issue revenue bonds without the
necessity of a referendum. The Referendum provisions contained
in the proposed Paragraph 7.2 would not permit the City of
Sebastian to borrow any money, contract any loan, or issue any
bond or other certificate of indebtedness without first receiving
approval to do so through a local referendum. In State v. City
of Miami, 379 So.2d 651 (Fla. 1980), the Supreme Court of the
State of Florida found a similar restriction on the exercise of
municipal powers to be unconstitutional. In that case, the City
of Miami issued revenue bonds for the construction of a
convention center garage. A proceeding was brought challenging
the City's issuance of these bonds based upon a provision in the
Miami City Charter which required a local election in connection
with the issuance of revenue bonds and which further prohibited
the lease of a portion of the facility to be financed by bonds
for more than thirty (30) years. This restriction in the Miami
City Charter'had been adopted prior to the enactment of the
Municipal Home Rule Powers Act. The Supreme Court rejected the
challenges to the City's action and found that these Charter
provisions constituted limitations on the borrowing and leasing
powers of the City of Miami which were granted to it by the
Municipal Home Rule Powers Act. The Court further stated that
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Eight
Neither the Municipal Home Rule Powers Act nor the
Florida Constitution requires an election to approve
the issuance of revenue bonds which do not pledge ad
valorem taxes. Therefore, an election is not necessary
to approve the financing of this conve~tion center
garage, but rather the City Commission may approve it.
Two years later, the District Court of Appeal of Florida for the
Third District had the occasion to review a similar restriction.
In that case, the plaintiff sought an injunction to halt the
enforcement of a Miami municipal ordinance granting cable
television rights to two private companies within the City. The
Plaintiff based his suit on a section of the Miami City Charter
which required that such an ordinance had to first be submitted
to a referendum. The Court cited the State v. City of Miam~ case
in reaching its conclusion that a referendum was not required.
It is 'clear from the reasoning of this decision that
the subject charter provision must also fall under the
Municipal Home Rule Powers Act (Section 166.021,
Florida Statutes [1979]) as constituting an
unauthorized restriction on the power of the City of
Miami to grant franchises on its property to private
persons; such franchises, like leases of City property
or the issuance of revenue bonds, may be approved by
the city Commission without submitting same to a
referendum. In any event, it is clear beyond dispute
that the subject charter provision has been struck down
by the Florida Supreme Court as having been nullified
by the Municipal Home Rule Powers Act.
Rolle v. city of Miami, 408 So.2d 642 (Fla. 3rd DCA 1982).
The Supreme Court of the State of Florida has not issued an
opinion as to whether or not restrictions on the exercise of
municipal powers may be placed in a city charter after the
adoption of the Municipal Home Rule Powers Act. The District
Court of Appeal for the Fifth District of Florida, however, has
ruled that the electors of the City of Orlando could propose
amendments to the City Charter which would prohibit the City from
constructing a coal fired electrical generating plant, Gaines v.
The City of Orlando, 450 $o.2d 1174 (Fla. 5th DCA 1984). This
'case is, however, distinguishable from the Sebastian Referendum
proposal on two points. First, the proposed Orlando Referendum
dealt only with the issue of whether or not to build a sizeable
capital project. In Sebastian, the capital project is already
here. Further, the Sebastian capital project (Airport) carries
with it additional obligations on the part of the City to various
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Nine
leaseholders and the United States government. Second, the City
of Sebastian is not within the jurisdiction of the District Court
of Appeal for the Fifth District of Florida. The District Court
of Appeal for the Fourth District of Florida, which has
jurisdiction over the City of Sebastian, has not ruled on this
issue. It is, therefore, highly unlikely that the proposed
Paragraph 7.2 would survive a challenge in a court of competent
jurisdiction based upon the opinion of the Supreme Court as
expressed in State v. City of Miami.
In Paragraph 7.3, the Referendum proposes to restrict the City's
acceptance of any grant or other form of financial assistance
unless the City Attorney can issue an opinion that the acceptance
by the city of such a grant or other form of financial assistance
would not "prevent, limit, or otherwise frustrate the regulation,
operation, or governance by the City of the Airport according to
provisions of this Paragraph 7," An analysis of this proposed
Paragraph, in conjunction with the.~self-supporting provisions of
the proposed Paragraph 7.1, would not allow the City to utilize
revenues from any other sources in order to guarantee the payment
of a revenue bond. The purchasers of such bonds normally seek
some form of guarantee from the municipality in the event that
the revenue from the capital project financed by the bond is not
sufficient to repay the bondholders. For example, the existing
bond obligations for the Sebastian Municipal Golf Course are
guaranteed by a pledge of the City's utility taxes. Therefore,
the provisions of the proposed Paragraph 7.3 and 7.1 would
effectively remove the City's ability to issue future revenue
bonds for improvements at the Airport. This restriction is
particularly distressing in view of the comments contained in
Section 7.5 of the Master Plan for the Sebastian MuniciPal
Airport. That Section describes the funding methodologies for
Phases I-III. According to the Plan, Phase I expenses are
primarily designed to bring the existing airport facilities to a
good and serviceable condition. In analyzing the debt service
requirements, the planner stated that, "It is evident that the
City of Sebastian would never be able to make or propose
improvements on their (sic) own." These proposed Charter
Amendment provisions would, therefore, severely and adversely
affect the City's ability to meet its obligations under the Quit
Claim Deed.
A municipality may, pursuant to the broad Home Rule Powers
granted by Chapter 166, Florida Statutes (1987) "exercise any
power for municipal purposes, except when expressly prohibited by
law." A city council, acting as a legislative body of a
municipality, may prescribe the penalties to be imposed for
violations of municipal ordinances. Section 165.19, Florida
Honorable Richard B. Votapka, Mayor
Members of the City Council
city of Sebastian
February 20, 1989
Page Ten
Statutes (1973) provided "that for no one offense made punishable
by the ordinances and laws of said city or town shall a fine of
more than $500.00 be assessed, nor imprisonment for a period of
time greater than 60 days" be imposed. This Section was,
however, repealed by chapter 74-192, Laws of Florida. No other
statute has subsequently been enacted which expressly authorizes
the imposition of penalties by a municipality. Nevertheless,
sections of Chapter 775, Florida Statutes (1987) clearly indicate
that municipalities can continue to enact ordinances with penal
sanctions. Section 775.08(2) provides that the term
"misdemeanor" shall not mean a conviction for any municipal or
county ordinance. Subsection (3) states that, "Nothing contained
in this code shall repeal or change the penalty for a violation
of any municipal or county ordinance." Section 775.082(5)
provides that, "Any person who has been convicted of a non-
criminal violation may not be sentenced to a term of imprisonment
nor to any other punishment more severe than a fine, forfeiture,
or other civil penalty, except as provided ... by ordinance of
any city or county."
While in existence, Section 165.19 limited a municipal ordinance
penalty to $500.00 or imprisonment for a period of time not to
exceed 60 days. These same restrictions apply to misdemeanors of
the second degree pursuant to Sections 775.082(4) (b) and
775.083(1) (e). Further, Section 125.69, Florida Statutes (1987)
provides that violations of county ordinances shall be prosecuted
in the same manner as misdemeanors and upon conviction shall be
punished by a fine not to exceed $500.00 or imprisonment in the
county jail not to exceed 60 days~or by. any combination of such
fine and imprisonment. ~On the other hand, the maximum fine which
can be imposed upon conviction of a misdemeanor of the first
degree is $1,000.00. The maximum fine for the conviction of a
felony of the third degree is $5,000.00. See Section 775.083,
Florida Statutes (1987).
In 1981, Mr. Charles P. Vitunac, the then City Attorney for the
City of Vero Beach, requested an official opinion from the
Attorney General of the State of Florida as to the limitations on
the exercise of a municipality's authority to impose penalties
for violations of municipal ordinances under its Home Rule
Powers. In his response, the Attorney General stated
... in accordance with the dictates of Section 2(b),
Article VIII, State Constitution, and the Municipal
Home Rule Powers Act, Chapter 166, Florida Statutes,
limitations on or the severity of penalties imposed by
municipal ordinances is left to the sound discretion of
the legislative body of each municipality. Any abuse
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Eleven
of that discretion would become a matter subject to
judicial resolution. It would appear, however, that
the limitations fixed in Chapters 316 and 318, Florida
Statutes, and for convictions of misdemeanors of the
second degree in Section 775.082(4) (b) and
775.083(1) (e), Florida Statutes, or as was formerly
provided in Section 165.19, Florida Statutes (1973),
should serve as guidelines in establishing the
appropriate penalties for violations of municipal
ordinances, unless and until the Legislature should
determine otherwise.
Opinion of the Attorney General of the State of Florida
No. 081-76, October 13, 1981. Section 1-10 of the Code of
Ordinances of the City of Sebastian provides that where no
specific penalty is provided, a violation of the Code of
Ordinances shall be punished by a fine not exceeding $500.00 or a
term of imprisonment not exceeding 60 days.
Paragraph 7.4 of the proposed Charter Amendment requires the City
to enact a penalty for violation of an airplane noise regulation
of "not less than $1,000.00." it is highly unlikely that a court
of competent jurisdiction would uphold such a penalty.
Paragraph 7.4 of the proposed Amendment to the Charter also
requires that the City assess a penalty against the owner or
operator of any aircraft within fourteen days following each
instance in which the aircraft is used in violation of an
aircraft noise regulation. The requirement that a penalty be
imposed within fourteen days is clearly procedural in nature.
Article V, Section 2 of the Florida Constitution provides that
only the Supreme Court of this State shall adopt rules for
procedure in all courts. Further, the City is precluded by
Article V, Section 1 of the Florida Constitution from maintaining
its own court. For these two reasons, the fourteen day
requirement contained in Paragraph 7.4 of the proposed Charter
Amendment is unconstitutional.
Paragraph 7.5 of the proposed Charter Amendment requires the City
of Sebastian to enact a fee of no less than $5.00 for aircraft
operation at the Airport. This same Paragraph requires that this
fee be imposed for a cycle of activity known as "touch-and-go."
Touch-and-go operations are specifically prohibited by Section
17-4 of the Code of Ordinances of the City of Sebastian. This
Paragraph of the proposed Charter Amendment attempts to
legitimize and tax an aircraft operation which has been deemed
illegal by the City Council since the enactment of Ordinance
0-79-6 on September 10, 1979.
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Twelve
The City of Sebastian has negotiated leases with at least four
companies for the purpose of doing business at the Airport. At
the time that these leases were negotiated, the Lessees were well
aware of the City's obligations to maintain~the Airport
facilities in a safe and operable condition, as required by the
Quit Claim Deed with the United States of America. Further, at
the time that the leases were negotiated, there were no
limitations on the City's power to borrow money or issue revenue
bonds in order to meet its obligations under the Quit Claim Deed.
The Lessees decisions to enter into their various leases with the
city were, in all probability, based in part on the belief that
the City would meet its obligations to maintain the Airport. As
described previously in this analysis, the City's ability to
manage its Airport would be significantly affected should the
Charter Amendment be adopted as proposed. Therefore, an issue is
raised as to whether or not the adoption of these provisions
would impair the contracts (leases) entered into between the
various Lessees and the City. The Florida Supreme Court, in the
landmark case of Humphreys. et al v. State, ex rel. Palm Beach
County~ et al, 145 So 859, 861 (Fla. 1933) stated that
This Court has long since held that all the laws which
subsist, at the time and place of the making of a
contract, and where it is to be performed, enter into
and become a part of the contract made, as if they were
expressly referred and incorporated in its terms,
including alike those laws which affect its
construction, validity, enforcement, or discharge.
Article I, Section l0 of the Constitution of the United States
and Article i, Section 10 of the Florida Constitution provide
that no law impairing the obligation of contracts shall be
passed. No landing fees or airplane noise restrictions existed
at the time that any of the present leases were negotiated
between the City of Sebastian and the Airport Lessees. It is
logical to assume that the various Lessees analyzed potentigl
airplane traffic at the airport in making their business
decisions to enter into their various leases. The landing fee
and airplane noise provisions contained in Paragraphs 7.4 and 7.5
of the proposed Charter Amendment would, to some degree, restrict
the amount of airplane traffic at the Airport to a level below
that which currently exists. It is possible that such reduction
in air traffic could serve as a basis for a cause of action for
the Lessees to claim that the enactment of such Charter Amendment
is an impairment of their existing contract with the City. A
final determination as to whether or not the contracts were
impaired would be a factual matter to be decided by a court of
competent jurisdiction.
Honorable Richard B. Votapka, Mayor
Members of the City Council
City of Sebastian
February 20, 1989
Page Thirteen
The proposed Charter Amendment requires that the City impose
landing fees and noise restrictions on aircraft operations. The
City has not conducted any studies to justify either of these
restrictions although the Sebastian Municipal Airport Master Plan
contains a provision that a noise abatement study be conducted as
soon as possible. The Administrator of the Federal Aviation
Administration has prescribed standards for the measurement of
aircraft noise and sonic booms and published regulations for the
control and abatement of aircraft noise. In so doing, this field
has been preempted by the Federal Government and is not subject
to state or local control. Burbank v. Lockheed Air Terminal,
Inc., 411 U.S. 624, 36 L Ed2d 547 (1973). It is highly unlikely
that a court of competent jurisdiction would uphold the proposed
restrictions in the absence of such studies. I suggest that you
review the letters written by attorneys Potter and Walden for a
more complete discussion of this issue.
My office has attempted, on two occasions, to contact Mr. John
Evans, attorney for citizens Airport Watch, in order to discuss
the questionable provisions of this proposed Charter Amendment.
Unfortunately, Mr. Evans did not return our telephone calls.
In summary, it is my opinion that the proposed amendments to the
Home Rule Charter of the City of Sebastian are subject to
challenge upon numerous grounds. I firmly believe, should these
Amendments be enacted as written, that the City will likely find
itself in the position of defending numerous suits from parties
who have been adversely affected by the imposition of these
restrictions.
I appreciate the opportunity to provide this opinion to the
governing body of the City and remain available to respond to
your questions.
CIN/nch
NASH & FALLACE, P.A. , ATTORNEYS
FOR TH~E~CITY OF SEBASTIAN
Charles Ian Nash
City Attorney