HomeMy WebLinkAbout1992 08 03 Workshop
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MEMORANDUM
TO: City Manager
FROM: City Planner fj}(
DATE: July 22, 1992
RE: Vested Rights Determination
During the July 8th workshop on the Vested Rights Ordinance, a discussion ensued
regarding the locus of determination for a property owner's vested rights.
Research into the procedures for other local governments indicated that the
determination is made by planning directors and/or staffs, advisory boards,
councils, or independent hearing officers.
The attached review outlines the procedures utilized by local governments,
including a specification of the initial "determination officer" as well as the
mechanism for appeal available to the owner. This information came from a review
of adopted vested rights ordinances (Orange County, Melbourne, Oviedo), from a
draft ordinance (Seminole County), and from an analysis of local government
vested rights procedures presented at an April, 1992 Florida Chamber of Commerce
Growth Management Course.
cc: Mayor/Commission
Attorney Bricklemyer
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July 22, 1992
PROCEDURES FOR THE DETERMINATION OF VESTED RIGHTS IN OTHER LOCAL GOVERNMENTS
Oranqe County
Determination:
Appeal:
Director of Planning
Independent Hearing Officer, then Board of County Commissioners
if required
Process:
Application is made to the Director of Planning who conducts an application
sufficiency review.
The Director renders Findings of Fact and Conclusions of Law making a
determination.
If finding is favorable, a certificate of vested rights is
If Director denies certificate issuance, an appeal may be
The case is assigned to a Hearing Officer (the County by
have three Hearing Officers). The officers are land use
the area.
A public hearing is scheduled. All testimony is under oath and cross-
examination is permitted. The burden of proof is upon the applicant.
The Hearing Officer renders a written opinion, filed with the Clerk of the
Board of County commissioners.
If favorable, Hearing Officer issues certificate.
If unfavorable, applicant may appeal to the Board of County Commissioners,
who may affirm, reverse, or remand the case to the Hearing Officer.
issued.
filed.
ordinance
attorneys
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from
City of Melbourne
Determination:
Appeal:
Planning & Zoning Board recommendation; Council determination
No administrative appeal
Process:
1) Application is made to the P&Z Administrator who conducts an application
sufficiency review.
2) Application is forwarded to the full P&Z Board who conducts a public
hearing. The Board has the City's planning staff and the City Attorney
present.
3) At the conclusion of the hearing, the Board discusses the issues and
directs the attorney to draft an opinion consistent with its
determinations.
4) Two weeks later, the draft opinion is circulated to the Board and discussed
in open session. The opinion containing Findings of Fact and Conclusions
of Law is changed into the form of a Recommended Order (RO). The RO is
docketed for City Council review.
5) At the council meeting, the applicant has a right to a de novo hearing and
review of the RO. The council then files as a final order its findings.
6) If the finding is unfavorable, the applicant may file with the circuit
court for a writ of certiorari.
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July 22, 1992
Seminole County
Determination:
Appeal:
Process:
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Director of Planning
Independent Hearing Officer, then Board of County Commissioners
if required
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The Planning and Development Director screens the application for
sufficiency.
The Director reviews the application and makes a final determination
regarding vested status.
If favorable, the Director issues the vested rights certificate.
If the Director requires more information to make a determination, an
informal hearing is set. All testimony is under oath, however, the
technical rules of evidence in judicial proceedings are not applicable.
At the conclusion of the informal hearing, the Director may deliberate and
shall issue a decision.
Appeals of the Director's decision are filed with the Director and copied
to the Clerk of the BCC and the County Attorney.
The County Attorney assigns a Hearing Officer to hear the appeal. The
Hearing Officer is a land use attorney. Assurances must be met regarding
the lack of conflicts of interest. (The County is putting together RFPs
for the Hearing Officers, similar to the ones used in Orange County. In
the interim, Seminole will use Orange County's officers.)
During the appeal, additional evidence may be brought forward, and cross-
examination may be required to properly evaluate the Director's decision.
The Hearing Officer may affirm, affirm with conditions, or reverse the
decision of the Director. Written determinations are filed with the
Director.
If the Hearing Officer's decision is against the applicant, a further
appeal may be filed with the BCC.
The BCC may either affirm or reverse in whole or in part the conclusions
of law made by the Hearing Officer.
City of Oviedo
Determination:
Appeal:
Process:
Planning Department Staff
City Council, then Independent Hearing Officer if required
1) Application is made to the Planning Department and reviewed for
sufficiency.
2) Staff reviews the application and makes a final determination of whether
or not the application clearly and unequivocally has vested status.
2A) The planning staff may recommend to the Planning Director a public hearing
to be held by the City Council.
3) The applicant may request a public hearing to challenge the staff's
determination.
4) At the public hearing, the rules of evidence in judicial proceedings are
not applicable, but all testimony is under oath and cross-examination is
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July 22, 1992
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At the hearing's conclusion, the Council shall adopt a decision of
approval, approval with conditions, denial or to continue the proceedings
at a later date.
The Hearing Officer is utilized as the third step of a three-step
administrative process relating to the determination of vested rights and
thus provides administrative relief prior to any recourse in a court of
law. An applicant may seek an appeal of the Council's decision through
the Hearing Officer hearing.
The Council shall provide the Hearing Officer, who, when available, will
be from the Division of Administrative. Hearings, Department of
Administration, State of Florida.
The Hearing Officer may determine that additional information or evidence,
including cross-examination, is necessary to properly evaluate the City
Council's actions and render a decision.
The Hearing Officer's determination shall include appropriate finding of
fact and conclusions of law, and may affirm, affirm with conditions, or
reverse the decision of the staff or City Council.
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