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HomeMy WebLinkAbout2002 02 25 Other - Document was Handed Out by Elias N. Chotas under Regular D Date: 022502 The following Document was handed out by Elias N. Chotas on 2/25/02 under Regular Agenda "D". . c' DEAN, MEAD, EGERTON, BLOODWORTH, CAPOUANO & BOZARTH, P. A. ATTORNEYS AND COU NSEL.ORS AT L.AW aoo NORTM MAGNOLIA AVENUE p. O. BOX 2346 ORLANDO, FLORIOA 32.802.2348 SUITE 1500 (407) 941.1200 F"A.X (,407) 423.1831 ORLANOO, F'LORIOA 32803 WRITER'S DIRECT DIAL (407) 428-5132 www.deanmead.com WRITER'S E-MAIL ADDRESS ECHOTAS@DEANMEAD,COM February 25, 2002 VIA HAND-DELIVERY MayorPaulP.Partyka City of Winter Springs 112613: State Road 434 Winter Springs, Florida 32708-2799 RE: Agenda Item VII-D, (February 25, 2002) Application through the Office of the City Manager to Consider Approval of Development Agreement with AVA Anthony, Inc. to Construct Gas Station and Convenience Store Dear Mayor Partyka: This firm represents Cumberland Farms, Inc., the owner and operator of a Cumberland Farms convenience store and gasoline station located at 550 East State Road 434, Winter Springs, Florida. The Cumberland Farms' store is adjacent to and certainly well within 350 feet of the property owned by AVA Anthony, Inc., located at the comer of Hayes Road and State Road 434, which is the subject of the referenced agenda item. Pursuant to Ordinance No. 2001-13, the City Commission of the City of Winter Springs established a distance requirement for gasoline filling stations which would have the effect of preventing the proposed location of the convenience store and gasoline station proposed by A V A Anthony, Inc. A V A Anthony, Inc., by letter from its counsel, Aaron Gorovitz dated September 14,2001, contends that it has vested rights due to its reliance upon expired building permits and certain construction activities, as well as the contribution , of a left-hand turn lane to facilitate development of the subject property. Applicant has failed to file an application for a vested rights special use permit pursuant to Article IX, ~9-401 et. seq., of the Winter Springs Code. Now A VA Anthony, Inc., by and through its attorneys, has proposed entry into an Agreement with the City of Winter Springs, wherein the City of Winter Springs, in order to avoid litigation with A V A Anthony, Inc. concerning its vested rights, consents to a Conceptual Plan of Develop~ent. Cumberland Farms opposes this procedure for approval of a gasoline station immediately adjacent to its existing site for the following reasons: 1. Ordinance No. 2001-13, establishing separation requirements for construction and/or installation of new gasoline station facilities, was properly adopted, recognizes a legitimate public concern, is a valid use of the City's police power and should be enforced by the City Commission. A copy of this Ordinance is attached as Exhibit "A" for your convenience. The proposed gasoline station may not be constructed absent of waiver of these requirements by the City of Winter Springs. 1)11) 453-un DEAN MEAD IN "ORT PIERce DEAN. ME.AD. MINTON &. KLEIN IN BRtv"":'O COUNTY DEAN. MEAD. SPIt:LVOGE\. & Got..OMAN 15611 ..~."oo. 1560 Hl.1,.OO '(~ .. MayorPaulP.Partyka City of Winter Springs February 25, 2002 Page 2 2. The Conceptual Site Plan and the proposed agreement have not been submitted for approval in accordance with the City Land Development Code. For example, in Article II of the Land Development Code, ~9-46 requires processing of preliminary plans and final plans through the City Planner, the City Engineer, Staff, and the Planning and Zoning Board before reaching the City Commission. The proposed conceptual plan has not been reviewed by the City Planning Staff nor the Planning and Zoning Board. Without these procedural ~afeguards you may be approving a project which may set an unfortunate precedent. It may even put you in a posture where you must later grant variance which are not even apparent tonight. 3. The City has failed to follow its own vested rights provisions set forth in ~9- 401 et. seq., of the Winter Springs Land Development Code. It is clear on the facts set forth in the Memorandum of Aaron Gorovitz, as well as the well prepared and thoughtful responsive memorandum prepared by your Code Enforcement Manager dated November 11, 2001, (copy attached as Exhibit "B") that the vested rights argument is poorly supported and would not satisfy your code requirements. Additional facts relating to this matter are also set forth in an earlier memorandum of the Code Enforcement Manager dated February 4,2000. For your convenience, we also attach copies of this memorandum as Exhibit "C", as well as copies of relevant code sections. It is clear that even if an application for vested rights were filed pursuant to ~9-401, et. seq., under the City Code the application could not be approved by the City of Winter Springs under the facts. 4. The Agreementproposed by Mr. Gorovitzcontains in paragraph 15 an express finding that the City acknowledges that the development proposed in Exhibits "B", "C", and "0" of the Agreement is "consistent with the City's Comprehensive Plan and shall be consistent with the City's Land Development Code in all respects". In view of the fact that this evaluation has not taken place and is not proposed to take place prior to the approval of this Agreement, we can only assume that the City is being asked to prevent itself from enforcing its own laws. Clearly the handling of the matter does not offer due process to all other City residents. Although the Agreement purports to contain a provision that it does not waive the City's police powers, this section along with Section 21 entitled "Development" effectively achieves that very result by committing the City to A V A Anthony, Inc.'s development plans. For example, Section 21 initial paragraph provides that AVA Anthony, Inc., may terminate the Agreement if the City does not issue all permits that it needs and that the City will jointly apply for all engineering approvals and other permits that are necessary. In other words, unless the gas station is built all bets are off. Even worse, in the final two (2) paragraphs of Section 21 A V A Anthony, Inc., further seeks the right to terminate the Agreement if it decides to litigate for other reasons within its control in the future. Some of you will no doubt recall that there was some discussion concerning vegetation and the difficulty of enforcing the City's rights if plants die. You were promised ,., 'i 11ayorPaul P. Partyka City of Winter Springs February 25, 2002 Page 3 stipulated fines that would be paid immediately so that there would be no enforcement problem. Paragraph 18 provides that the City has a right to record a lien subordinate to all institutional fmancing. In other words, your rights in the event of a breach are virtually non-existent under this Agreement. Why should the City of Winter Springs enter into any agreement with A V A Anthony, Inc., and permit construction of a gasoline station within 350 feet of another gasoline station? The answer proposed is avoidance of a lawsuit and construction of an attractive gasoline station. You are asked to sacrifice the legal processes you were sworn to uphold in order to achieve this result. We believe that if a development agreement for A V A Anthony, Inc., is approved tonight that Cumberland Farms would be authorized to file for a writ of certiorari to seek judicial review of such action. (See e.g., Cookv. CityofLyn-n Haven, 729 So.2d 545 (April 20, 1999)). Our client has authorized us to file such an appeal within thirty (30) days following the issuance of your fmal order. Our client's standing in very similar circumstances concerning a proximity ordinance was establish in Skaggs-Albertson's v. ABC Liquors Inc., 363 So. 2d 1082 (1978). We would also be pleased to also furnish to your counsel legal authorities which support the absence of a vested right. (See e.g., Gross v. City of Rivera Beach, (4th DCA, Jan. 24, 1979)). The conveyance of a left- turn lane to the City of Winter Springs during the time period that the site plan and building permits were in effect does not prevent you from otherwise enforcing your laws. It merely is one more act of partial performance. The fact that the agent for the landowner, the general contractor, did not fulfill his obligations to the property owner is not your responsibility nor is it the responsibility of the citizens which you represent. The City of Winter Springs should not be indirectly required to make the landowner whole due to his poor choice of general contractors. Certainly neighbors such as Cumberland Farms should not bear the burden of that decision. Respectfully submitted, ~t1~~. ENC/mls Enclosures cc: Ronald W. McLemore, City Manager Commissioner Robert S. Miller Commissioner Michael S. Blake Commissioner Edward 11artinez, Jr. Commissioner Cindy Gennell Commissioner David W. McLeod G:\RE\ENC\37679.mlsr.Ol a.Partyka. wpd Elias N. Chotas EXHIBIT "A" COMMISSION AGENDA ITEM A Consent Information Public Hearin Re ular x July 9. 2001 Meeting ~ MGR. /Dept. REQUEST: . Community Development Department requests the City Commission conduct a public hearing for the first reading and consideration of Ordinance 200 I -13, establishing separation requirements for construction and/or installation of new gas station facilities PURPOSE: The purpose of this agenda item is to consider the adoption of Ordinance 2000-13 that would require a 350-foot separation of proposed gas station facilities from existing gas station facilities, residential subdivisions, schools and parks to protect the health, safety and welfare of the residents and businesses of the City. APPLICABLE LAW: The provisions of the City Charter 4.15(b), which states in part "All ordinances shall be read twice, the second reading of any ordinance shall be by title only and shall follow the first by a minimum often (10) days, provided however, this requirement may be waived by a unanimous vote of all five (5) members of the commission.. . ." CONSIDERATIONS: . The City Commission has expressed concern about the potential for over-concentration of gas station facilities. . The visual character ofa community (e.g., the appearance of its streets, neighborhoods, and business areas) is essential to its long-term economic viability. The prevention of an overabundance of gas stations, which can lead to vacant facilities because qf excessive competition, is an integral part of improving the visual character and quality of life. ~ . Prevention of undue concentration of gas stations helps communities by preserving and improving community appearance, enhancing quality of life, protecting property values, and encouraging economic development. . An overabundance of gasoline stations in one area presents a high risk of fire, explosion, and traffic congestion to public safety. FINDINGS: 1. The City finds it is undesirable to locate too many gasoline stations in one area because typical Florida cities have demonstrated the high probability of failure in this business type because of competition. Failures usually result in abandoned gas stations, which in most instances can not be used for other commercial purposes. . 2. There have been several gasoline station failures within and around the City of Winter Springs, including the old Texaco located on State Road 434, which has been declared a public nuisance; the abandoned Shell gasoline station on State Road 17/92 near Casselberry City Hall; the abandoned gasoline station on the corner of State Road 17/92 and State Road 434; and the abandoned gasoline station on State Road 434 near the 1-4 on-ramp. 3. An overabundance of gasoline stations in one area can cause blight, which can be detrimental to aesthetic and commercial appeal. 4. An overabundance of gasoline stations in one area presents a high risk offire, explosion, and traffic congestion to nearby and adjacent schools,. parks and residential areas. 5. Lighting standards used by gasoline stations often require excessive illumination and can become a nuisance if located too closely to residential and park areas. 6. In June 200 I, staff conducted an evaluation of the impacts of the 350-foot buffer surrounding existing gas stations, residential areas, schools and parks. The study revealed there is more than adequate land available outside of the identified buffer areas and within appropriate future land use designations to accommodate additional gasoline stations. 7. The evaluation of the impacts of the 350-foot buffer was based upon land uses that would either allow gas stations by right or special exception. Those specialland use categories include commercial, industrial, green way interchange and town center. RECOMMENDATION: Staff recommends the City Commission hold a public hearing for first reading of Ordinance 2000- 13. The ordinance would amend the City's Code of Ordinances, as follows: Code Amendment. Section 20-4 I 7 would be created to read as follows: Sec. 20-417 Gasoline Stations (a) For the purposes of this section. a gasoline station shall include any building or structure or parcel of land used for the storage and sale of gasoline or other motor fuels. whether storage and sale is a principal or accessory use on the land. ., '.<. (b) There shall be a minimum air line distance of three hundred fifty (350) feet. measured in a straight line from the nearest points of lot boundaries. between a proposed gasoline station and any existing gasoline station or between a proposed gasoline station and any lot with a future land use designation of residential or any lot on which a school or playground is proposed or exists. (c) There shall be a minimum air line distance of three hundred fifty (350) feet. measured in a straight line from the nearest points of lot boundaries. between a proposed residential lot. school. or playground and any existing gasoline station. ATTACHMENTS: A. Ordinance 2000-13 B. Gas Station Spacing Evaluation Map COMMISSION ACTION: ATTACHMENT A .J- .. .----- ;: I ~; . . . l~,.. \ . ORDINANCE NO. 2001-13 AN ORDINANCE OF THE CITY COMMISSION OF THE CiTY OF WINTER SPRINGS, FLORIDA, ESTABLISHING DIST ANCE REQUIREMENTS FOR GASOLINE FILLING STATIONS; PROVIDINC FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES . AND RESOLUTIONS; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCORPORATION L'lTO THE CODE: AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, this Ordinance is adopted pursuant to the Municipal Home Rule Powers Act and the City's inherent police power to zone property; and WHEREAS, zoning regulations with respect to the erection of filling stations have bc1:n upheld to be a valid exercise of the police power; and WHEREAS, the City Commission has reviewed the case Slone v. City afMaitland, 446 F.2d 83 (5th Cir 1971) and hereby finds that it is undesirable to locate too many gas stations in one area because experiences of Florida cities have shown that the probability of business failure in the gasoline station business is very high in this competitive area and such failures result in abandoned gas stations which in most instances cannot be used for any other commercial purposes; and WHEREAS, for example, the City Commission is aware oflhe abandoned gasoline station located on State Road 434 in Winter Springs (Texaco), which has been declared a public nuisance by the City's Code Enforcement Board, the abandoned gasoline station located on State Road 17-92 near the: City of Casselberry City Hall, the abandoned gasoline station on the corner of State Rond 17-92 and State Road 434, and the abandoned gasoline station near the J-4 on-ramp on State Road 434; and WHEREAS, the City Commis!>ion also finds that too many gasoline stations in one area can cause the area to become a blighted eyesore which greatly diminishes the area in aesthetic and commercial appeal; and WHEREAS, the enhancement of the aesthetic appeal of the City of Winter Springs is a proper exercise of the police power; and WHEREAS, the City Commission further finds that -too many gasoline stations in one area presents a high risk of fire, explosion, and traffic congestion. See City 01 Boca Raton v. Tradewind Hills, 216 So.2d 460 (Fla. 4lh DCA J 969); and City of Winter Spring. OrdiMoce No,2001-13 Pa:c I of 3 WliEREAS, the City Commission also finds that the lighting standards used by gasoline ~lBtion~ are very illuminous and can become nuisances jf located too close to residential developments; and WHEREAS, based on the findings contained in this Ordinance, it is in the best interests of the publie health. safety. and welfare of the citizens of the City of Winter Springs to estnblish the distance requirements contained herein for gasoline stations. NOW, THEREFORE, THE C1TY COM?;-USSION OF THE CITY OF WINTER SPRINGS, HEREBY ORDAINS, AS FOLLOWS: S<<tion 1. Redtab. The foregoing recitals are hereby fully incorporated herein by this reference as legislative fIndings of the City Commission of Winter Springs. Section 2. Code Amendment. Section 20-417, City of Winter Springs Code is hereby created to read as follows: (Underlined type indicates additions to the Code.) S~C. 20-417 G2soline S~tioos. W For pw:poses of this section. a "gasoline station" shall include any building or structure or parcel orland used for the stora~e and sale of gasoline or oth~r motor fuels. whether such storage and sale is a principal or accessory use on the land. {Q) There shall be a minimum air line distance of three hundred fifty (350) feet. measured in a straight line from the nearest points oflot boundaries. between a proposed ~asoline stl\tion and any existing ~oline station or between a proposed gasoline station and l\ny lut 2.()n~<J r~identhlll,)r \Ply lot on which a school or olavlrrOWld is oroposed or exists, W There shall be a minimum air line distance of three hundred fiftv (350) feet. measured in a straight line from the nearest points ,of lot bOlmdaries.. between a proposed rr:sidentiallot. school. or playground and any existi}:lg gasoline station. Section 3. Repeal QfPrior Inconsistent Ordinances and Resolutions. All ordinancos and resolutions or parts of ordinances and resolutions in conflict herewith are hereby repealed to the extent of the conflict. Cil)' or Wimer Sprin&s Qrc:tirunce No,2001.1:l Pa~c 2 of 3 Section 4. Senrab~Jty. Should any section or provision of this Ordinance, or any portion hereof. any paragraph, sentence, or word be declared by a Court of competent jurisdiction to be invalid. such d~ision shall not affect the validity of the fl:maindcr hereto 4\S a whole or part thereof to be declared invalid. Se~tion S. Incorportltion Into Code. 'This Ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph number or Jener and any beading may be changed or modified as necessary to effectuate the foregoing. Sectiun 6. Effective Date. This Ordinance shall ~omc effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the _ day of . 2001. PAUL PART~ Mayor ATTEST: ANDREA LORENZO-LUACES City Clerk APPROVED AS TO LEGAL FORM AND SUFFICIENCY FOR THE CITY OF WINTER SPRINGS ONLY. ANTHONY A. GARGANESE City Attorney First Reading: Second Reading: Effective Date of Ordinance: F ;\DOCS\City of Winttf' SpMiS\Ordinaitccs\Gasoline Filling Statiom City of Winter Spnn&5 Ordi.tw!l::e No.200 1-13 Pa;e 3 of 3 ATTACHMENT B Seminole Co. Schools Facilities! .-;..:; Gas Station Spacing Evaluation . Gasoline Station @ Tank N City Limits N Major Roads &II Buffer (350 Ft) _ Parks I-..;'....?"-"I Schools ;~~ '..< '~:;~ :. , Residential Land Uses: .. Commercial D ,Ingustrial , .. Greenway Interchange .. Town Center " t\ N 0.9 0 0.9 Miles I I " ..-. . .r; . .~ c EXHIBIT "B" rr"~5 r ~npv ~~ ti t~ l. '13 tf I . " MEMORANDUM DATE: Novcmbcr 8, 200 I TO: Anthony Garganese, City ALLomey FROM: JimeLLe Cook. Code Enforcemcnt Manager RE: A V A Anthony vested rights I have reviewed the Mcmo from Ule aLLorneys for AVA AnUlOny, Inc. and olTer the following response: . In my opinion, the common vested rights issue pursuant to Winter Springs Code Section 9-403"does not apply. The code gives a property owner Ule OpportWllty to apply for a special vested rights exception for zoning changes Ulat were made to bring said property into compliance with the 1992 Comprehensive Plan. The "zoning change" alluded to in the mcmo does not apply in UllS case, Ulerefore the special use permit is not applicable. All arguments Ulat the case meets Ule standards for determining vested rights (Section 9-403) are moot. . TIle argument for equitable estoppel, in my opinion, is not substantiated. The 3 elements have not been met. The first element of "good faiUl" has not been met. AVA AnUlOny did not act in "good faiUl" to continue construction of the gas station. A Stop-payment order was issued by the owner against the $42,000.00 check for impact fees. ALLempts at contacting Ule owners went unanswered for months. The City was not kept informed of the status of the abandoned site and had to force the owners to construct a safety fence around Ule property to protect Ule public from falling into Ule large open pits surrounding the partially installed gas tanks. The City contacted Texaco Corp. in an attempt to reach the owners of the property and was informed Ulat Texaco was "looking for them" as well. TIle stmldard of "good faiUI" has not been met. . The second standard for equitable estoppel is based on some omission or action by the governmental agency. The City of Winter Springs adopted the Ordinance requiring certain distanccs between gas stations while Ulere ,vere no active building permits in place for gas stations. There werc no applications for building permits at Ulat site. TIlis standard for cquitablc estoppel has not been met. . The property owner cllose to abandon Ule construction site. TIle property owner chose to stop payment on Ule impact fce check. The property owner failed to reasonably inform the City of it's intent and further, avoided communication with Ule City for monllls. Because of the abandonment of the site, the failure to pay impact fees, the failure to communicate with the City, and the failure of A VA Anthony to renew any building pennits, the City had no reason to believe that the site would ever be developed by A V A Anthony as a gas station. This standard has not been met. . In Texas V.I'. TVlI'n oj Mim/li Springs, the developer had obtained necessary building permits before the City changed the ordinance. This is not the situation in this instance. A VA Anthony allowed Ule permits to expire well before the City of Winter Springs changed the ordin:lnce. In/Jishop I'S. City oJ Gai/lesl'ille, the City :lpproved a zoning change specifiC:1l1y to allow the gas station to be constructed at the site, Ihen Ialer changed IlIe ordinance and prohibited gas stations. In this case. however, a change was notlllade to the zoning designation to allow ^ V ^ Anthony to construct a gas slat ion. Permits " J' ..u, ";; <e ..I were issued to AVA AntilOny to construct a gas station per code at tilC timc of application. Thcy failed to construct tile gas station. TIlrough no fault of the City, those pennits were lell to expire and no .. attempts were made prior to ordinance change to renew those pennits. TIIC cascs are not similar enough, in my opinion, to constitute preccdence. . On page 4, paragraph 3, tilC attomeys for AVA Anthony allege that thc owners were in continuous contact with City staff. They refer to a request from Code Enforcement to install.a fcnce to prcvent a filing of a.code enforcement lien and that AVA Anthony installed tilC fence at tile City's request. What actually occurred was tilat after weeks and weeks of calling, writing and attempting to contact A V A Anthony about tile unsafe conditions at the abandoned site ( open pits and large piles of sand and aggregate material) tile property owner finally had a chain link fence installed. After a public hearing before tile Code Enforcement Board for Public Nuisance charges, (A V A Anthony did not respond to the charges and did not appear at tile hearing to answer the charges) a fine was imposcd. A V A Anthony continued to ignore the City's request for information. Finally, in an attempt to abatc tile visual nuisance of the abandoned site, the City offered not to place the code enforcemcntlienon the property if A VA Anthony would complctely fence the property with a 6 feet industrial or heavy weight, opaque fence. TIllS oIrer was ignored. TIle City had no choice but to place the code enforcement lien against the property. In paragraph 4, page 4, reference is made to a mecting held in July 2001. That meeting was held on July 5, 2001. At that meeting, discussions were made relating to the condition of tilC site and the code enforcement lien. A VA AntilOny was not told that if improvements were made then building permits would be issued. City staff informed A V A Anthony of a pending ordinance concerning separation of gas stations. During the week of July 9, some improvements were made to the site, but failed to meet tile conditions for compliance tilat was discussed at tile July 5, 2001 meeting and that was ordered by the Code Enforcement Board. The code enforcement lien is still accruing and will continue until compliance is achieved. . In conclusion, in my opinion, A VA AntilOilY is not vested. The property owner avoided communication witil the City, failed to complete the project, allowed the pennits to expire, ignored Code Enforcement action, stopped payment of the impact fee check, and adversely impacted the community by allowing tile site to become abandoned and degraded. TIle "good faith" element was not met by the property owner. The Ordinance to restrict gas stations was duly advertised and adopted. TIlere were no active pennits and no applications for site plan reviews submitted or pending at the tilile of adoption. .M 'il cc Ron McLemore, City Manager Charles Carrington, Conununity Development Director .~ ~ EXHIBIT "e" CITY OF WINTER SPRINGS. FLORIDA Code Enforcement I 126 EAST STATE ROAD 434 WINTER SPRINGS. FLORIDA 32708.2799 Telephone (407) 327.1800 Fax (407) 327.6695 rvtEMORANDUM DATE: Fcbmary 4. 2000 TO: @ TI-lROUGH: FROM: Jilllctte Coo . RE: Tcxaco project! S.R. 434 In June, 1999 thc City rcceived notification th:lllhc projcctmanilgcr of the Texaco projcct hild resigned. We were insLructed to dircct all correspondence to the owners George Mansour and Kamil Gowni. On July 29, 1999. the City inslructcd lhc owners to install a fence around the perimetcr of the site and to kecp thc area locked until such time as impact fees are p::lid and penn its arc issued. . A fence was installed about a month later after repeilled converS.1lions and correspondence wilh the owners. It was installed without pennits, on the righH)f-way and in such a way that it impeded uafTic visibility. It was finally moved aller repeated conversations and correspondencc. lllere was information Ulat some sort of litigation was involved between Ule owners and the prcvious conlr.1clor and Umt conslruction was hailed until Uk1t situation W<lS resolved. Impact fecs wcre paid to the City, but a "stop payment" was put on the check beforc it could clear. lllose fees are still outstanding. ( appro:.:. S44.000.00 and 5% pen.1lty for "stop payment") L<lte 1999 Ule City obtained Ule area along Hayes road and constructed a turn lane. TIle City's conlractor removed part ofUle fencing to construct Ule turn lane. At some point. Ule reminder of Ule fcnce along Ule rear of the property next to Hacienda Village was removed. but wc do not know who rcmoved it.. In Novcmber . 1999 charges were brought againstthc owncrs of Ule property. Ava Anthony Inc. for crc.1ting a public nuisance. lllC Codc Enforccment Board found Ule owners in non- compliance and Icvicda finc to be imposcd after notification to the owners and afier a rcasonable timc Notice was sent to tJlC owncrs of this Ordcr. The Ccrtified Icttcr was sent to tJlC owners of record, but was rcfused and marked "rcfuscd/movcd/no forwarding address". No finc could be imposed at Utis point Resc.1rch into thc Department of Statc rccords revealed UIC eorporntion's attomey is locatcd in ML Dora. llle Order was faxed to the allomey and Ielephone convers.1tion verified tlk1t it was received. The Corporation's attorney gave nle the correct <lddrcss for the oITicial office of the corporalioil ;lIld thc Board's ordcr was scnt certificd mail. There wcre In:lIlylelcphone convcrs:lliolls with thc owners over Ihis lime period and c.1ch linlc Ihc OWllcrs insislcd IIIal thc liligatioll was drawillg lo'a c10sc ;Jlld Ihal we would scc aClion onlllc sire "ill 2 \vecks". ";:. ..:~~ ~ Thcrc II";IS a IclcphollC convcr~lion 011 February 2. (<)<)') with Mr, Gowni in which Mr, Gowni said Ihal ilnpacl fces wcrc indeed paid. thalbnilding permils wcrc in ordcr al1d Ihat conSlruclion \\'o,lId bcgin 011 Moncil)'. Fcbnrary 7. 1 ')')'). As of Fcbnlary 2. I')')') impact fccs wcrc nOI p;lid and bl1ilding perlnils were expired. Thc owncrs of this propcrty havc beCII less Ihan cooper:llivc wilh Ihc Cil.v sincc Ihcy bcc:lInc involvcd in this projccl. Wc havc reccivcd many' complain's frolllthc rcsidclIlS ill Hacicnci1 Villagc and from Olhcrs in Ihe Cily ..boul Ihc potcnti..1 hazards lh;ll cxisl al this silc. Oplions 10 considcr: Bring thc issuc b..ck to Ule Code Enforccmcnl Bo..rd nnd nsk th:lllhey ordcr lhc Cily 10 corrcctthe violntion by fencing Ihc property and licn the property 10 rccoup the cosl of (he fcncing. · Bring the issuebnck to Ute Code Enforccmcnl Board nnd :lsk 11!'1! thcy ordcr thc Cily to correctthc violation by mowing Ule property. filling in the holes. removing the dcbris. (lJ1d fencing thc property and lien UIC property for costs involved. · Respond 10 Ule lI1al1:1gement of Hacienda Village suggesting thaI Uley crect a fence on tJleir property nttheir cost to prolecl U1CII1SelVes from visual wslrnclions nnd wlk111hcy . perccive 10 bc n "dnngerous situalion". " i ~ ~ 9-396,12 WINTER SPRINGS CODE ( Sec. 9-396.12. Appeal. Any person aggrieved by any portion of this division shall appeal directly to the city commis- sion. To file an appeal, an individual must file an 'application with the city manager and submit such information and documentation with said application as may be required by the city man- . ager. The city manager shall make a determina- tion as to the sufficiency of the application. An application for appeal must be filed with the city manager within thirty (30) days of any action taken by the city for which a person is aggrieved. (Ord. No. 488, * 12, 7-9-90; Ord. No. 588, S 12, 9-25-95; Ord. No. 689, S 12, 10-27-97; Ord. No. 742, S 12, 9-27-99) Sees. 9-397-9-400. Reserved. ARTICLE IX. VESTED RIGHTS* Sec. 9-401. Intent. In recognition of the fact that certain land development rights of property owners may be vested with respect to the City of Winter Springs Comprehensive Plan and the land development regulations adopted to implement the plan (the "LDRs"), including the requirement for the deter- mination of the availability and capacity of public facilities ("concurrency"), it is the intent of this article to provide for a fair and equitable process for the determination of whether a property owner has vested rights against the comprehensive plan and the land development regulations adopted to implement that plan. (Ord. No. 534, * I, 11-23-92) Sec. 9-402. Vested rights application pro- cess. (a) Application for vested rights special use permit. (1) Any person claiming vested rights to de- velop property shall make applicatio.n for *Editor's note-Inasmuch as Ord. No, 53{ S~ I-IV, adopted Nov. 23, 1992. did not specify manner of codification, such provisions have been designated by the editor as Article IX, substantive sections being SS 9-401-9-404. , . The comprehei\sive plan referenced in Article IX is not set out at length herein, however, a copy remains on lile and available for inspection at the office of the city clerk.' a vested rights special use permit pursu- ant to this article. The owner of the sub- ject property must either sign the appli- cation or give written authorization for the applicants to file the application. . , (2) An application for a vested rights special use permit shall be approved and a vested rights special use permit issued if an applicant meets the requirements set out in this article. Possession of a vested rights special use permit shall enable a permittee to complete the development approved under such permit up to and through issuance of appropriate certifi- cates occupancy, subject to the limitations set forth in section 9-404, and subject to compliance with such laws and regula- tions against which the development is not vested. (3) Applications for a vested rights special use permit shall be submitted to the city manager on a form to be provided by the city. Such application must be filed within one (1) year after the later of (i) the adoption of this article or (ii) the rezoning of the subject property in order to bring its zoning into conformance with the land use designation assigned to the property by the Comprehensive Plan Land Use Map adopted on April 27, 1992 (the "plan adoption date"). Except as provided in subsections (a)(4) and (a)(5), below, fail- ure to file an application within the re- quired period will constitute an abandon- ment of any claim to vested rights. Judicial relief will not be available unless admin- istrative remedies set forth in this article are exhausted. ( . (4) If a property owner is absent from the state during the entire filing period, and does not have an agent present in the state during such period, such property owner may, with documentation sufficient to indicate a probable lack of notice, be granted leave by the city manager to file an application within one (1) year ,after the individual's return to Florida. ( 6:34 '" :( ....:t. --:.... .: - , " LAND DEVELOPMENT ~ 9-402 (5) Notwithstanding the provisions of subsec- tion (a)(3), above, the city commission may, in extraordinary circumstances, al- Iowa property owner to submit an appli- cation after the one (1) year deadline where such extension is necessary to avoid undue hardship to the property owner. (6) The city manager, in consultation with the city attorney and city staff, shall re- view a vested rights special use permit application for sufficiency, and shall re- quest within ten (10) working days from the filing date any additional information necessary to rule on the application. (7) Upon receipt of a complete application, the city manager shall schedule a public hearing before the planning and zoning board, which hearing shall be held not later than thirty (30) days after receipt of a complete application, although said hear- ing may be continued at the request of the applicant or for good cause. Written notice of the date, time, place and purpose of the hearing shall be mailed by the city clerk to all owners of property located within one hundred fifty (150) feet of the bound- aries of the property for which vested rights are sought, according to the latest ,certified tax roll. (For purposes of this article, such an owner is deemed a "party of record"). Said notice shall be mailed not later than fifteen (15) days prior to the date of the scheduled hearing. (8) Within fifteen (15) days after the date the hearing is closed, the planning and zoning board shall render an order to either issue or deny a vested rights special use permit on the application, based on the stan- dards and subject to the limitations estab- lished in this article. The order shall be mailed to the applicant and shall include findings of fact and conclusions of law, and shall state sp~cifically (i) what rights, if any, are vested; (ii) what laws or regu- lations those rights are vested against; and (iii) what limitations or requirements apply for the applicant to preserve those vested rights. ' (9) Individual parcel owners within a larger project may rely on and be govern'ed by a vested rights special use permit covering the overall project. Such an individual parcel owner may also apply for a vested" ".-.. rights determination for his parcel only. If an individual parcel owner receives an. - independentvested rights 'sp~cial usE; per-' ~" mit for his parcel, such an individufil '- vested rights special use permit shall es- tablish and govern the vested rights of that parcel, notwithstanding the prior or later approval of a vested rights special use permit for the larger project of which the parcel is a part. A substantial devia- tion determination under section 9-404(c) and (d) hereof for a parcel governed by such an individual vested rights special use permit shall be based on the proposed . changes to the individual parcel. A sub- stantial deviation determination for a vested' project encompassing more than one (1) development parcel shall be eval- uated based on the proposed changes to the parcels governed by the project's vested rights special use permit, exclusive of any development within parcels governed by an individual vested rights special use permit. .~. '..," .,..... . (b) Appeals. (1) An applicant or a party of record as de- fined herein may appeal a decision by the planning. and zoning board to the city commission. Such an appeal must be filed with the city clerk within ten (10) days after the date the written order is mailed to the applicant. (2) Upon receipt of an appeal, the city man- ager shall schedule the matter for consid- eration by the city commission within sixty (60) days after the appeal is filed. The city clerk shall notify the applicant and any party of record of the date of the commission's hearing by certified mail at least ten (10) days in advance of the hearing. (3) The city commission shall conduct a pub- lic hearing on the appeal. Within fifteen 635 i 'f LAN'D DEVELOPMENT ~ 9-404 /" ( \ " above requirements shall be made by the city manager and a written statement of verification shall be in- cluded in his order if it approves a presumptive vested rights special use permit in reliance thereon. (c) Common law vested rights, . (1) Applicants who do ,not qualify for a pre- sumptive vested rights special use permit shall be entitled to a common law vested rights special use permit if they can prove the following: a. Prior to the plan adoption date, there was a valid, unexpired act or omis- sion of a government agency upon which the applicant relied; and b. The applicant's reliance was reason- able and in good faith; and c. The applicant, in reliance upon the valid, unexpired act of government, has made a substantial change in position or has incurred extensive obligations or expenses; and d. It would be inequitable, unjust or fundamentally unfair to destroy the rights acquired by the applicant by means of the government's act or omISSIOn. (2) The purchase of property in reliance on then existing zoning, without more, shall not vest the purchaser's right to develop in accordance with said zoning. (3) The following are not considered develop- ment expenditures or obligations in and of themselves, without more, unless the applicant was unable to obtain further approvals because of extraordinary de- lays beyond the applicant's control: a. Expenditures for legal and other pro- fessional services that are not re- lated to the ,design or construction of improvemel)ts; b. Ta.xes paid; c. Expenditures for initial acquisition of the land. (Ord. No. 534, * III, 11-23-92) Sec. 9-404. Limitations on determination of vested rights. (a) Except where a longer term is stated in the vested rights special use permit, upon the expira- t~on of five ~5.l years afte~ the ig~uance of a ve$leci " ",:};,~ rights speCial use permIt, the Issuance of sfevel- ',:"'!:i opment permits for the property subject to the;'; ":::;2; vested rigi.t 'special use permit shall be subject to ' ": \' the requirements of the comprehensive plan 'and .', implementing land development regulations. A term longer than five (5) years may be approved based on a reasonable schedule for completing the development being vested. The city may impose reasonable conditions on vested rights special use permits, or extensions of same, to ensure that the vested development is continuing in good faith. (b) The applicant or his successor may request an extension of the five-year period, which must be filed not less than ninety (90) days prior to the expiration of said time period. Such a request shall be scheduled for hearing by the city commis- sion within thirty (30) days after it is filed. The city may grant extensions for such additional periods as it deems appropriate to avoid undue hardship to the applicant, provided the applicant has commenced physical development of the prop- erty and is continuing in good faith with develop- ment of the vested plan, or has been precluded from doing so by extraordinary circumstances beyond his control. For purposes of this article, the phrase "continuing in good faith" shall mean: (1) Receipt by the applicant or his successor of permits or approvals from the city or other governmental entity or agency con- sistent with the timely and orderly pro- gression toward completion of the vested development; or (2) Other evidence of continued reliance and expenditures by the applicant in pursuit of the completion of the vested develop- ment. (c) All development subject to a vested rights special use permit must be consistent with the terms of the development approval(s) upon which the special use permit was based. Any substantial deviation from a prior approval, except a devia- tion required by governmental action, shall cause the development involved to be subject' to the 637 I' "^ , e: ( LAND DEVELOPMENT ~ 9.26 1 to all persons who are record owners of property within one hundred fifty (150) feet of the subject property. (d) ,The board of adjustment shall make find- ings that th~ requirements of each portion of this section ....have been met. The board of adjustment shall further mllke ~ finding that the rea.sons set forth 111. the' app'ication justify granting of the variance and that the variance is the minimum variance that would make possible the reasonable use of the lands, buildings or other improve- ments. (e) The board of adjustment shall make a fur- ther finding that the granting of the variance would be in harmony with the general purpose and intent of this chapter and will not be injuri- ous to the surrounding territory or otherwise detrimental to the public welfare. <D In granting any variance, the board of ad- justment may prescribe appropriate conditions and safeguards, to such variance, and when made a part of the terms which the variance is granted a violation of any term or condition shall be deemed a violation of this chapter and shall be punishable as such. (Code 1974, S 14-4) Sec. 9-6. Appeals from granting of variances. (a) Any person, board, taxpayer, department or bureau of the city, aggrieved by the granting of any variance, or the failure of granting of any variance, or by the interpretation by the board of adjustment of this chapter may appeal the deci- sion of the board of adjustment to the city council. (b) Upon the rendering of an unfavorable de- cision upon appeal by the city council, any person, board, taxpayer, department or bureau of the city, aggrieved by the granting of any variance or by the interpretation by city officials of this chapter may seek review through a court of record of such finding or interpretation in the manner provided by the laws of the state. (Code 1974, S .14-5) ( Sec. 9-7. Enforcement and penalties. (a) The city councilor any aggrieved person may have recourse to such remedies in law and equity as may be necessary to ensure compliance with the prOViSiOns of this chapter, including injunctive relief, to enjoin and restrain any per- son from vi0lating the provisions of this chapter and any rules and regulations adopted ~er this . chapter, and the court may; up'~:m. J2ro.$l( .or t~;;J'>::~ violation .of this. c?apt~r, issue !mch temJ;lOrary~ ,';::',"t and permanent InjUnctiOns as are,necl)Ssary,to .' :":, prevent the violation of this chapter.' ,". ... (b) Any per~on violating 01' failing to c~\'nply~.:-~t;. with the terms and provisions specified herein;'~' I~':~ , shall be punished, upon' conviction and at th~ '..." discretion of the court, by a fine not to exceed five', ":.' hundred dollars ($500.00) or by imprisonment not exceeding si..xty (60) days, or by both fine and imprisonment. Each day that !l violation is per- mitted to exist shall constitute a separate offense. (Code 1974, S 14-6) Sec. 9-8. Soil, rock, etc., removal. (a) It shall be unlawful for any person. to remove from any real property within the city any soil, subsoil, rock, or sand without approval as provided herein. Prior to such removal such per- son shall file with the city manager an application which shall include a written consent of the owner. for such removal. The city manager shall present the application to the city commission for its approval. If the commission approves the ap- plication, the mayor shall issue a written pennit for such removal. (b) Unless such removal becomes a public nui- sance or endangers the public health, safety or welfare, no permit would be necessary other than a building permit for the removal which would be incident to the preparation of single-family homes or auxiliary structures such as patios, swimming pools or driveways. (Code 1974, S 9-5) Sees. 9-9-9-25. Reserved. ARTICLE II. PROCEDURE FOR SECURING APPROVAL OF PLANS AND PLATS DIVISION 1. GENERALLY Sec. 9-26. 'Maps, engineering plans and plats to be submitted in preliminary and final form. Nine (9) copies of all maps, engineering plans or plats of subdivisions of any land within the city 563 ,., f c LAl"iD DEVELOPl\IENT ~ 9-47 dustry, parks, playgrounds, and other public and nonpublic uses exclusive of single-family dwellings. Names of abutting subdivisions, re- cordation date and number. Existing utilities on and abutting the tract; location, size and invert elevation of sanitary, storm, and com- bined sewers; location and size of water mains; location of gas lines, fire hydrants, electric and telephone poles, and streetlights. Ifwater mains and sewers are not on or abutting the tract, indicate the direction and distance to, and size of nearest ones, showing invert elevation of sewers. . I. Proposed utilities. A statement on the proposed method of water supply and sewage disposal. m. Other existing improvements, includ- ing buildings, on the tract. n. Natural features, including lakes, marshes or swamps, watercourses, and other pertinent features; wooded areas. A general description of soils and existing vegetation on the tract shall also be provided (Seminole County Soils Survey). J. k. o. Existing contours at one-foot inter- vals based on U.S. Coast and Geo- detic Datum for the tract to be sub- divided and, where practicable, extending twenty-five (25) feet be- yond the tract boundary. p. Proposed surface drainage with di- rection of flow and method of dispo- sition to the natural drainage area indicated or other acceptable stormwater systems. q. Subsurface conditions on the tract, to a minimum depth requested by the city engineer; location and re- sults of tests made to ascertain sub- surface soil, rock and groundwat~r conditions; depth to groundwater; lo- cation and results of soil percolation tests; location and extent of muck' r. pockets. Tests shall indicate weight- bearing capability of the soil after stripping and compacting. Zoning on and abutting the tract. Proposed public improvements; higp-. ways or other major improvements planned by public authorities for fu- ture consideration on or near the tract. Draft of restrictive covenants, ifan}:'. . If the development is a PUD or pri- vate development of any nature, re- strictive covenants will be required, if available at the time of submis- sion. . ., s. .. . .: "..~:. t. u. Other preliminary plans. When re- quested by the city, typical cross sections of the proposed grading, road- way and sidewalk, preliminary plans of proposed potable water and firefighting systems, sanitary sew- age systems, stonnwatermanage- ment systems. All elevations shall be based on U.s. Coast and Geodetic Datum. The applicant shall provide the location and information of the hundred-year flood elevation rela- tive to the proposed site, based on the FEMA (Federal Emergency Man- agement Agency) maps and estab- lish the wetlands boundary by the approved governing agencies, such as the Florida Department of Envi- ronmental Regulation, the St. John's Water Management District and the U.S. Army Corps of Engineers. In addition, the seasonal high water elevation shall be provided, as deter- mined by a registered professional engineer in the State of Florida. (Code 1974, * 14-30; Ord. No. 444, S 1(1), 1-9-89) Sec. 9.47. Action on preliminary plan by city council. . '.:. Within forty-five (45) days after receipt by the .ci.ty of the complete preliminary plan, (the city ~co~mission shall take action at any regular or special meeting and report to the applicant its 565 '. " LAND DEVELOPMENT -\dditional engineering/plans to accompany al development plan/plat: Potable water including fire protection systems. Sanitary sewer. Drainage and stormwater management facilities including underdrairis. / Bulkheads. Excavation and fill. Sidewalks, bicycle paths, and bridle paths. Streets and curbs. Street grades and ele- vation shall be established to minimize the need for underdrains. In soils where high groundwater is found or suspected, cuts shall be minimized in order to reduce the need for underdrains. Wherever along the proposed roadways projected ground- water elevation is less than one (1) foot, six (6) inches below the bottom of swale (or bottom of road base where c~rb and gutter is used), underdrains shall be re- quired. Soils explorations. The results of compre- hensive soils explorations, evaluation of results and recommendations by a city- approved soils engineering and testing finn. The soils explorations work shatl include as a minimum: a. Results of borings located by survey at suitable intervals along the pro- posed roadways; classification and properties of soils encountered; and groundwater elevation to United States Geological Survey datum found subsequent to making the borings. The evaluation of the results and recommendations by the soils firm shall include as a minimum: Recom- mendations on the type of base con- struction; projected high-water ele- vation to United States Geological Survey datum along the proposed roadways, need, design, size, loca- tion, depth and details of under drains; and a recommendation on the eleva- tion of street grades including depth 'ove the final :ncy reports, if nity with the if it complies If during construction of improve-"s chapter. Ac- ments, t.he ~ity dete~mine~ i~ t~e. _; \.~ tak~p':,e.){pe~.. field that SOlIs and/or gr:o~~n.dw.~t13r,-,~,:'.:.~,,~~~-.::IO.>:, days" ~r," .;;~~~'; conditions are found to be different ., rtmg data .bJ:..'::: :.: . than shown in the data submitted J or caused by with final development and engineer- ," tifies that the ing plans, or there is question about 'Its hereof, the adequacy of the approved plans ;>roved by the caused by conditions found in the . in order that field, the city shall have the right to g the public require the performance and submis- sion of additional soils work and/or to require modification of the previ- ously approved design plans includ- ing, but not limited to modification of street grades and/or installation of additional underdrains, use of soil cement base course, or other modifi- cations. ~ 9-73 of cut. The results of the soils work, evaluation of results, and recommen- dations shall be incorporated into the plans and specifications submit- ted for review. b. Lot grading. At the time final engineering plans are submitted, lot grading and drain- age plans shall be submitted for review and approvaL The plans shall show min- imum floor elevations for all homes, exist- "ing topography, grading of all lots, and any drainage improvements proposed or required on the lots. The lot grading and drainage plans shall show the lot lines, existing topography (one-foot contour in- tervals), and proposed lot filling, grading and drainage at a scale of one (1) inch is equal to one hundred (l00) feet (or larger) in general accordance with FHA stan- dards for lot grading. Substantiating soil borings, evaluations and studies shall also be submitted to document soil conditions, projected high-water groundwater eleva- tion on the lots, and adequacy of the lot grading and drainage plans. (10) Street lighting plan, demonstrating power company participation. (9) (11) Landscaping plans. Where site is commer- cial, industrial, or multifamily in nature, 567 <Z ,; ~ 9-101 t. n of the fi- :tion, the city .ring that the arid the plat ivered to the '. The devel- Jrding fee as DARDS ,y levelopment 1e lands can (l standards lrposes pro- lopment ap- ment plans ity commis- ation of all ")p~~nt can wnomically . 1 367 So.2d648 (Cite as: 367 So.2d 648) District Court of Appeal of Florida, Fourth District. Gordon R. GROSS, not Individually but as Trustee of Dominion Mortgage and Realty Trust, a Massachusetts Business Trust, Appellant. v. CITY OF RIVIERA BEACH, a Municipal Corporation, et al., Appellees. No. 77-1269. Jan. 24, 1979. Rehearing Denied March 9, 1979. Mortgagee appealed from final judgment of the Circuit Court, Palm Beach County, James R. Knott, J. , denying equitable relief to mortgagee and enjoining city from issuing building permit for completion of condominium project until it conformed to zoning ordinance. The District Court of Appeal, Baskin, Natalie, Associate Judge, held that where mortgagee's failure to exercise its contractual power under irrevocable power of attorney, which allowed mortgagee to enter and complete condominium project without notice to borrower in event construction ceased for ten days, caused original building permit to lapse and not good-faith reliance upon governmental acts or omissions, city was not equitably estopped from requiring mortgagee to bring condominium project into compliance with revised zoning ordinances. Affirmed. West Headnotes [1] Mortgages ~190 266k190 Although, under statute, mortgagee was merely holder of lien on property, it had right to complete condominium construction under contract where contract included irrevocable power of attorney allowing mortgagee to enter and complete project without notice to borrower in event construction ceased for ten days. West's F.S.A. 9697.02. [2] Mortgages ~ 191 266k191 Mortgagee, which had irrevocable power of attorney Page 1 allowing mortgagee to enter and complete condominium project without notice to borrower in event construction ceased for ten days and which conditioned loan on valid building permit and compliance with governmental regulations, had sufficient basis, following abandonment of project by borrower-owner and filing of foreclosure suit to request permission from court to either extend the building permit so that it would not expire by its own terms or to enter and renew construction to prevent waste. [3] Appeal and Error ~1008.1(3) 30kl008.1(3) Appellate court cannot reevaluate evidence and substitute its judgment for that of trial court. [4] Zoning and Planning ~472 414k472 Where mortgagee's failure to exercise its contractual power under irrevocable power of attorney, which allowed mortgagee to enter and complete condominium project without notice to borrower in event construction ceased for ten days, caused original building permit to lapse and not good-faith reliance upon governmental acts or omissions, city was not equitably estopped from requiring mortgagee to bring condominium project into compliance with revised zoning ordinances. *649 Sidney A. Stubbs, Jr. of Jones, Paine & Foster, P. A., West Palm Beach, and Larry A. Klein, West Palm Beach, for appellant. Timothy P. McCarthy of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for appellees/intervenors. Allan V. Everard, Riviera Beach, for appellee/city. BASKIN, NATALIE, Associate Judge. This is an appeal from a Final Judgment denying equitable relief to Appellant- Mortgagee and enjoining the City of Riviera Beach from issuing a building permit for completion of Sandpiper Villas Condominium until its conforms to zoning ordinance requirements for parking. We affirm the Final Judgment. Copr. @ West 2002 No Claim to Orig. U.S. Govt. Works . 'I' 367 So.2d 648 (Cite as: 367 So.2d 648, *649) Six weeks after issuing a building permit in December, 1972 to the owner- developer of land 'on which a forty-four unit building was to be constructed, the City of Riviera Beach enacted a new zoning ordinance reducing density. [FN 1] AppelIant entered a construction loan agreement of $1,275,000 requiring a valid building permit and compliance with governmental regulations as conditions precedent to the loan. The construction loan agreement provided that if construction ceased for ten days or the property was abandoned by the owner, AppelIant had the right, coupled with an irrevocable power of attorney, to enter and complete the project. [FN2] It was not, however, obligated to do so. The loan was secured by a mortgage. FNl. 1973 ordinances would permit 23 apartments instead of 44, 77 off-street parking spaces instead of 100, and would require landscaping around the perimeter of the building. FN2. Ordinances of the City of Riviera Beach provide that if construction ceases for a period of 90 days, a building permit becomes void. Construction commenced under the 1972 building permit and continued until April or May of 1974. In the interim, the City of Riviera Beach enacted the new parking and landscape ordinances. *650 When construction was approximately ninety percent complete, AppelIant-Mortgagee filed for foreclosure. Judgment was entered some seventeen months later on April 12, 1976, after vigorously contested litigation. Appellant purchased the property for $10,000 at the foreclosure sale. No effort had been made by Appellant to maintain or extend the building permit. The City then advised AppelIant the 1972 building permit was void since the project did not conform with revised zoning ordinances. A new building permit was issued in June, 1976, conditioned upon AppelIant obtaining variances before a certificate of occupancy would be issued. Variances, opposed by adjoining property owners, Intervenors in this cause, were denied based upon inadequate parking and lack of safety in backing onto publi~ streets. The trial court predicated its denial of equitable relief and injunction upon its finding that the construction loan ~greement gave AppelIant the absolute irrevocable right to take possession of the Page 2 project should the borrower cease construction for a period of ten days or in the event the borrower abandoned the project. The trial court found that construction did cease and the project was abandoned for a period substantialIy in excess of one continuous year during which AppelIant made no effort to exercise its rights and take possession of the property to complete the project. The trial court also found that Appellant allowed the original building permit to expire creating the situation leading to this litigation by its own inaction. Appellant contends on appeal that as Mortgagee it had no proprietary interest in the condominium by virtue of its construction mortgage, but was merely the holder of a lien on the property, relying on the issuance of the original building permit in making its construction loan and expenditures of over a million dollars. It maintains it was under no obligation to complete the project and that it did not have the right to take possession under Florida law. Appellant contends the City should be equitably estopped from requiring it to bring the project in compliance with revised ordinances which would render marketing unfeasible. Appellant asserts that lengthy litigation prior to foreclosure indicated that although construction ceased, it did not abandon the project, and that undue hardship would result from the decision of the trial court effectively forfeiting the entire project. [1] Although Appellant was merely the holder of a lien on the property under Florida Statute 697.02, [FN3] it had the right to complete construction under its contract. FN3. Florida Statute 697.02: "A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession. .. [2] If Appellant were reluctant to proceed under the contract, it still had a sufficient basis to request permission from the court either to extend the building permit, or to enter and renew construction to prevent waste. In Hollywood Beach Hotel Co. v. City of HolIywood, 329 So.2d 10 (Fla. 1976), the court stated: " . . . the doctrine of equitable. estoppel will preclude a municipality from exercising its zoning power where. . . '(A) property owner (1) in good Copr. <0 West 2002 No Claim to Orig. U.S. Govt. Works c ;- . 367 SO.2d 648 (Cite as: 367 So.2d 648, *650) faith (2) upon such act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired. Salkolsky v. City of Coral Gables, 151 So.2d 433 (Fla. 1963).' " Under the terms of the construction loan agreement. Appellant had an irrevocable power of attorney in the event construction ceased for ten days to enter upon the land and complete the project without notice to the borrower. Failure to exercise its contractual power caused Appellant's building permit to lapse, not good faith reliance upon governmental acts or omissions. [3] It is the prevailing rule in this jurisdiction that an appellate court cannot reevaluate *651 the evidence and substitute its judgment for that of the trial court. Hollywood Beach Hotel Co., supra. Because we agree with the trial court that Appellant's damage resulted from its own inaction, it is not necessary for us to determine whether Page 3 Appellant is able to seek equitable estoppel as an owner to continue a nonconforming use, . -' . _' - [4] The decision of the trial court produced a harsh and expensive result for the condominium owner, but Appellant's hardship was self-created and could have been avoided by appropriate recourse to the courts. "When the owner himself by his own conduct creates the exact hardship which he alleges to exist, he certainly should not be permitted to take advantage of it." Josephson v. Autrey, 96 So.2d 784 (Fla. 1957). . The cessation in construction rendering the December, 1973 building permit void precluded Appellant from raising the issue of equitable estoppel thus requiring it to bring the entire project into compliance with the revised ordinances. We affirm the decision of the trial court. ANSTEAD and DAUKSCH, JJ., concur. END OF DOCUMENT Copr. <6> West 2002 No Claim to Orig. U.S. Govt. Works