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Home My WebLink About20-19-2003 Villagio Developement AgreementBROWN, WARD, SALZMAN & WEISS, P.A. Usher L. Brown 4 Suzanne D'Agresta' Anthony A. Garganese' Gary S. Salzman° John H. Ward Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer °Board Certified Business Litigation Lawyer "Board Certified City, County & Local Government Law Attorneys at Lazy Offices in Orlando, Kissimmee, Cocoa & Viera February 19, 2003 The Honorable Mayor John F. Bush and Members of the City Commission 1126 East State Road 434 Winter Springs, Florida 32708-6912 Re: Villagio Development Agreement / Our File No. 1193 Dear Mayor Bush and Members of the City Commission: Debra S. Babb Jeffrey P. Buak Todd K. Norman John U. Biedenharn, Jr. Joseph E. Blitch Jennifer A. Michael Michelle A. Reddin Vincent E. Scarlatos Erin J. O'Leary Of Counsel i�ZF.CF_7#7E.,7:) FEB Z1vom I:ITYUi- VVlN i th-3V0 INCs CITYHALL eL This letter is in response to the City Commission's request that we provide an opinion regarding whether Ordinance No. 2002-08 is applicable to the proposed Villagio Development (hereinafter "Villagio"). I. Legal Issue: Based on competent substantial evidence, whether the City is equitably estopped from applying all or part of Ordinance No. 2002-08 to Villagio. II. General Relevant Facts: A. The Villagio applicant ("Applicant") held several pre -application conferences with City staff before submitting to the City the preliminary engineering/site plan, including one conference on August 7, 2001. B. In the autumn of 2001, the Applicant submitted to the City a concept plan for review and comment by City staff. 225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 - Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@oriandolaw.net The Honorable Mayor John F. Bush and Members of the City Commission February 19, 2003 Page 2 C. On January 11, 2002, the Applicant submitted the preliminary engineering/site plan to the City. D. Subsequent to January 11, 2002, and prior to the adoption of Ordinance 2002-08, the City's Development Review Committee ("DRC") reviewed and commented on the preliminary engineering/site plan. E. On April 8, 2002, (prior to the April 8, 2002 City Commission meeting), the Applicant submitted the final engineering/site plan to address DRC's comments. F. On April 8, 2002, the City Commission adopted Ordinance No. 2002- 08 which established the new arbor ordinance of the City. G. Subsequent to the adoption of Ordinance No. 2002-08, the Applicant, on numerous dates, submitted a revised final engineering/site plan or additional information (April 24, 2002; July 24, 2002; August 1, 2002; October 2, 2002; November 11, 2002). H. In an October 31, 2002 memorandum to file, John Baker stated that the "CDD staff, in good faith, has consistently told the Applicant that tree issues were adequately addressed." On November 20, 2002, the City's Planning and Zoning Board recommended approval of the final engineering/site plan with conditions. J. Prior to April 8, 2002, there is no indication that the City ever informed the Applicant that the adoption of Ordinance No. 2002-08 was pending. III. Applicable Standard of Review and Law: The applicable standard of review and law is very complex and beyond the scope of this letter. The essence of the law, however, is as follows: A. STANDARD OF REVIEW. "Competent substantial evidence" is the evidentiary standard which should be applied to determine whether the City is equitably estopped from applying all or part of Ordinance No. 2002-08. The Honorable Mayor John F. Bush and Members of the City Commission February 19, 2003 Page 3 Competent substantial evidence has been defined to mean sufficiently relevant and material evidence that a reasonable mind would accept as adequate to support a conclusion. Degroot v. Sheffield, 95 So.2d 912 (Fla. 1957). B. APPLICABLE LAW. The common law of vested rights/equitable estoppel is applicable. In this case, the property owner would be permitted by law to proceed under the prior arbor ordinance if it can demonstrate by competent substantial evidence that it substantially altered their position in reliance on the prior arbor ordinance. To proceed under the prior ordinance, the property owner must satisfy the elements of equitable estoppel. The three (3) elements of equitable estoppel are: (1) a property owner's good faith reliance; (2) on some act or omission of the government; and (3) a substantial change in position or the incurring of excessive obligations and expenses so that it would be highly inequitable and unjust to destroy the right he acquired. Franklin County v. Leisure Properties Ltd., 430 So.2d 475 (Fla. 1s` DCA 1983). Stripped of legal jargon, (1) Estoppel amounts to nothing more than an application of the rules of fair play. (2) One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. (3) A citizen is entitled to rely on the assurances or commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds. Town of Largo v. Imperial Homes Corp, 309 So.2d 571 (Fla. 2d DCA 1975). The Honorable Mayor John F. Bush and Members of the City Commission February 19, 2003 Page 4 IV. Applicable Ordinances: A. Previous Winter Springs Code, Chapter 5, Arbor. B. Ordinance No. 2002-08 (new Chapter 5). V. Analysis and Recommendation: Under the equitable estoppel doctrine, situations may arise where the City is estopped (prevented) from enforcing a change in zoning regulations against one who has substantially altered their position in reliance on the prior regulation. The reasoning underlying this rule of law is that a property owner should be able to plan for the development of their property in a manner permitted by existing regulations with some level of assurance that the ground rules are not changed in the middle of the game. See § 25.155, McQuillins on Municipal Corporations. Of course, however, there are exceptions under this general rule. There may be circumstances where the public interest must be given priority over the interests of the property owner. See e.g., Smith v. Clearwater, 383 So. 2d 681 (Fla. 2nd DCA 1980). In this case, it appears that the Applicant has in good faith relied on City staff to proceed in preparing a preliminary and final engineering/site plan ("Plan") for City Commission approval based on the prior arbor ordinance. This reliance occurred both prior to and after the adoption of Ordinance No. 2002-08. Under these circumstances, the Applicant has a good argument that the City is now estopped (prevented) from applying Ordinance No. 2002-08 to deny the Plan or to require major modifications to the Plan. In other words, the prior arbor ordinance shall apply to the extent that the Applicant relied on that ordinance to prepare and submit their Plan. With that said, I am also of the opinion that some provisions of Ordinance No. 2002-08 are applicable. Particularly, Sections 5-10 (prohibitions), 5-12 (permit contents; expiration; removal after expiration of permit); 5-14 (tree protection during development and construction; periodic inspection); 5-15 (voluntary tree planting); 5-16 (waivers and appeals); 5-17 (remedial action); 5-18 (enforcement; penalties); and 5-19 (authorization to adopt rules and fees) should apply. These provisions should apply because they are purely regulatory in nature and are unrelated to the Plan submitted by the Applicant. The Honorable Mayor John F. Bush and Members of the City Commission February 19, 2003 Page 5 I look forward to discussing this letter at the next City Commission meeting. V tr ly yours, Anthony A. Garganese City Attorney AAG:jf