HomeMy WebLinkAboutOrdinance 534 Determination/Vested Rights
ORDINANCE NO. 534
AN ORDINANCE SETTING FORTH THE PROCEDURES FOR THE
DETERMINATION OF VESTED RIGHTS; PROVIDING FOR AN APPLICATION
FORM; PROVIDING FOR TIME LIMITATIONS TO FILE VESTED RIGHTS
APPLICATIONS; PROVIDING FOR A PUBLIC HEARING AND
ADMINISTRATIVE ORDERS APPROVING OR DENYING A VESTED RIGHTS
SPECIAL USE PERMIT; PROVIDING FOR APPEALS OF ADMINISTRATIVE
ORDERS TO THE CITY COMMISSION; PROVIDING FOR HEARINGS ON
APPEALS: PROVIDING STANDARDS FOR DETERMINING VESTED RIGHTS;
PROVIDING LIMITATIONS ON VESTED RIGHTS SPECIAL USE PERMITS;
PROVIDING SEVERABILITY; PROVIDING AN EFFECTIVE DATE.
WHEREAS, Chapter 163, Part II, Florida Statutes, entitled
the Local Government Comprehensive Planning and Land
Development Regulation Act, as amended (the "Act"), empowers
and requires the City commissioners of the City of winter
Springs to plan for the City's future development and growth,
and to adopt and amend comprehensive plans, or elements or
portions thereof, to guide the future growth and development
of the County; and
WHEREAS, the City Commissioners conducted public hearings
relating to the adoption of the City of Winter Springs
Comprehensive Plan and adopted the same by City Ordinance 513
on April 27, 1992 (the "Plan Adoption Date"); and
WHEREAS, Section 163.3202(1), Florida Statutes, requires
the city to adopt or amend and enforce land development
regulations that are consistent with and implement its adopted
Comprehensive Plan; and
WHEREAS, Section 163.3194(1)(b), Florida Statutes,
requires that all land development regulations enacted or
amended by the City of Winter Springs shall be consistent with
the adopted Comprehensive Plan, and any land development
regulations existing at the time of adoption which are not
consistent with the adopted Comprehensive Plan, or element or
portion thereof, shall be amended so as to be consistent; and
WHEREAS, Section 163.3194(1)(b), Florida Statutes,
further requires that during the interim period when the
provisions of the most recently adopted comprehensive Plan,
or element or portion thereof, and the land development
regulations are inconsistent, the provisions of the adopted
Comprehensive Plan, or element or portion thereof, shall
govern any action taken in regard to an application for a
development order; and
WHEREAS, the Comprehensive Plan envisions that the County
shall adopt an administrative process for determining whether
a person's right to develop is vested.
NOW, THEREFORE BE IT ORDAINED BY THE CITY COMMISSION OF
THE CITY OF WINTER SPRINGS:
SECTION I.
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 determination of
the availability and capacity of public facilities
("Concurrency"), it is the intent of this Ordinance to provide
for a fair and equitable process for the determination of
whether a property owner has vested rights against the
Comprehensive Plan of the City of Winter Springs and the land
development regulations adopted to implement that Plan.
SECTION II.
VESTED RIGHTS APPLICATION PROCESS.
A. Application for Vested Rights Special Use Permit.
1. Any person claiming vested rights to develop
property shall make application for a Vested Rights Special
Use Permit pursuant to this Ordinance. The owner of the
subject property must either sign the application 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 Ordinance. 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 certificates occupancy, subject to the limitations
set forth in section IV below, and subject to compliance with
such laws and regulations against which the development is not
vested.
3. Applications for a Vested Rights Special Use
Permit shall be submitted to the City Manager of the City of
winter Springs on a form to be provided by the City. Such
application must be filed within one (1) year after the later
of (a) the adoption of this Ordinance or (b) 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 Subsection ILA.4. and 5., below, failure to file an
application within the required period will constitute an
abandonment of any claim to ,vested rights. Judicial relief
will not be available unless administrative remedies set forth
in this Ordinance 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 year after the individual's return to
Florida.
5. Notwithstanding the provisions of Subsection
II .A. 3., above, the City Commission may, in extraordinary
circumstances, allow a property owner to submit an application
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 review a Vested Rights Special
Use Permit application for sufficiency, and shall request
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 hearing 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 150 feet of the boundaries of the property for which
vested rights are sought, according to the latest certified
tax roll. (For purposes of this ordinance, 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 standards and subject to the
limitations established in this Ordinance. The order shall
be mailed to the applicant and shall include Findings of Fact
and Conclusions of Law, and shall state specifically (a) what
rights, if any, are vested; (b) what laws or regulations those
rights are vested against; and (c) what limitations or
requirements apply for the applicant to preserve those vested
rights.
B. Appeals.
1. An applicant or a Party of Record as defined
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 Manager
shall schedule the matter for consideration 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 public
hearing on the appeal. Within fifteen (15) days after the
conclusion of the hearing, the City shall mail its decision
to the applicant in the form of an order incorporating the
same elements as the City Manager's order described in
Subsection II.A.8 above.
4. Any appeal of a city commission decision on a
Vested Rights Special Use Permit shall be by Petition for
certiorari review to the circuit court based solely on the
record of the hearing before the City Commission. The
applicant is responsible for providing a verbatim transcript
of the record of that hearing. Such an appeal must be filed
within thirty (30) days after the date the City renders its
order on the application by mailing said order to the
applicant.
SECTION III.
STANDARDS FOR DETERMINING VESTED RIGHTS.
A. General.
An application for a vested rights determination shall
be approved if the applicant has demonstrated all of the
following:
1. The applicant:
a) Owned the property on or before April 27,
1992, the Plan Adoption Date; or
b) Entered into a contract or option to
purchase the property on or before the
Plan Adoption Date; and
c) Qualifies for either Presumptive Vested
Rights or Common Law Vested Rights as
defined herein.
B. Presumptive Vested Rights.
1. Developments of Regional Impact.
a) Developments which are authorized under
Chapter 380.06, Florida Statutes, pursuant
to a valid, unexpired Binding Letter of
Vested Rights issued by the state land
planning agency, including modifications
to such Binding Letter of Vested Rights
(a "Binding Letter"), shall be entitled
to a Presumptive Vested Rights Special Use
Permit. The application for a Presumptive
Vested Rights Special Use Permit based on
a Binding Letter shall include the Binding
Letter and a letter from the Department
of Community Affairs verifying the
authentici ty of the Binding Letter and the
related plan of development, all of which
shall be made exhibits to the Permit.
Such Permit shall recognize the vesting
of the development as set forth in the
Binding Letter, and such vesting shall
continue until development approved in the
Binding Letter is complete or until the
expiration or invalidation of the Binding
Letter, whichever occurs first.
b) Development which has been specifically
approved in a Chapter 380.06 DRI
Development Order rendered prior to the
Adoption Date, and which remains valid,
shall be entitled to a Presumptive Vested
Rights Special Use Permit. The DRI
Development Order shall be made an exhibit
to the Permit, and the Permit shall be
subject to the terms of, and shall
reference the limitations imposed by, the
DRI Development Order.
c) Development which has been specifically
approved in a court order shall be
entitled to a Presumptive Vested Rights
Special Use Permit. The court order shall
be made an exhibit to the Permit, and the
Permit shall be subject to the terms of,
and shall reference the limitations
imposed by, the court order.
2. Other Developments.
a) Possession by a property owner of a valid
unexpired final plat or final engineering
plans approved by the ci ty shall
presumptively vest the development
approved if: (a) such plat or plans were
approved prior to the Plan Adoption Date;
and (b) physical development pursuant to
the plat or plans has commenced and is
continuing in good faith. Verification
of the above requirements shall be made
by the city Manager and a written
statement of verification shall be
included 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 Presumptive
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 omission of a
government agency upon which the applicant
relied; and
b) The applicant's reliance was reasonable
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 development
expendi tures or obligations in and of themselves, without
more, unless the applicant was unable to obtain further
approvals because of extraordinary delays beyond the
applicant's control:
a)
Expenditures for legal and other
professional services that are not related
to the design or construction of
improvements;
b)
Taxes paid;
c)
Expenditures for initial acquisition of
the land.
SECTION IV.
RIGHTS.
LIMITATIONS ON DETERMINATION OF VESTED
A. Except where a longer term is stated in the Vested
Rights Special Use Permit, upon the expiration of five (5)
years after the issuance of a Vested Rights Special Use
Permit, the issuance of development permits for the property
subject to the Vested Rights 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 (5) 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 Commission 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 property and is continuing in good faith
with development of the vested plan, or has been precluded
from doing so by extraordinary circumstances beyond his
control. For purposes of this ordinance, 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 consistent with
the timely and orderly progression 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 development.
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 deviation required by governmental action, shall
cause the development involved to be subject to the
Comprehensive Plan and implementing land development
regulations. The City Manager shall determine whether a
proposed change is a substantial deviation, which is defined
for purposes of this Ordinance as follows:
1) Any change to add a new land use or to change
the vested mix of land uses that alters the
basic character of the vested development; or
2) Any change in density or intensity of use that
would increase the development's impacts on
those public facilities subject to Concurrency
by more than five (5) percent; or
3) Any change in access to the project that would
increase the development's transportation
impacts by more than five (5%) percent on any
road subject to Concurrency unless the access
change would result in an overall improvement
to the transportation network.
A permittee may appeal a substantial deviation determination
to the City Commission provided such appeal is filed within
ten (10) days after the date the written determination is
mailed to the permittee.
D. A change that is not a substantial deviation shall
not divest vested rights.
E. A Vested Rights Special Use Permit shall apply to
the land and is therefore transferrable from owner to owner
of the land subject to the permit.
F. Development that is granted a Vested Rights Special
Use Permit shall remain subject to the requirements of the
Comprehensive Plan and implementing land development
regulations except to the extent that the application of such
requirements would result in the denial of:
1) The vested land uses;
2) The vested density or intensity of development;
3) The vested phasing of development; or
4) Other specifically vested development
entitlements approved in the development order
or orders on which the Vested Rights Special
Use Permit was based.
G. Notwithstanding anything in this Ordinance to the
contrary, a Vested Rights Special Use Permit may be revoked
by the City commission upon a showing by the City that failure
to revoke the permit will result in a peril to the health,
safety or general welfare of the residents of the City unknown
at the time of the Permit's approval. The time periods
provided for in this ordinance may be waived or amended by the
city commission upon a showing of good cause.
SECTION V.
CONFLICTS.
All Ordinances or parts of Ordinances in conflict
herewith are hereby superceded to the extent of said conflict.
SECTION VI.
EFFECTIVE DATE.
This Ordinance shall take effect upon its adoption.
Passed and adopted this 23rd day of November
1992.
CITY OF WINTER SPRINGS, FLORIDA
PHILIP A. KULBES, MAYOR
ATTEST:
Mary T. Norton
CITY CLERK
First Reading: Oct. 26, 1992
Posted:
October 28, 1992
Public Hearing and Second Reading: November 23, 1992
The Odando Sentinel
Published Daily
$53.06
~tate of jflortba } 5.5.
COUNTY OF ORANGE
Before the undersigned authority personally appeared Beverly C. Simmons
, who on oath says
that he/she is the Legal Advertising Representative of The Orlando Sentinel, a dally
newspaper published at CASSt:LrlERRY in
SEMINOLE County, Florida;
that the attached copy of advertisement, being a NOT ICE OF PURL Ie H
in the matter of OR n r NINe E ~ I:i =i 4
in the '
was published in said newspaper in the issue; of
Court,
Affiant further says that the said Orlando Sentinel is a newspaper published at
CASSELBeRRY , in said
SEMINOLE County, Florida,
and that the said newspaper has heretofore been continuously published in
said SEM Il\IOLr:: County, Florida,
ea,ch '('leek 9ay .an~, ~~s b~en entered as second-class mail matter at the post
office In CA.:.~I::LbI::RR'f in said
SEMINOLE County, Florida,
for a period of one year next preceding the first publication of the attached
copy of advertisement; and affiant further says that he/she has neither paid
nor promised any person, firm or corporation any discount, rebate,
commission or refund for the purpose of securing this advertisement for
publication in the said newspaper.
The foregoing instrument was acknowledged before me this
NOVEMBER , 19~, by Beverl C. Si
who is personally known to nfe:.:a who did take..a
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(SEAL)
, ojith ,J.
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JUANITA ROSADo
1Uanita Rosado
:otary PU,blic, State of Florida
Y oornnu!l8iqn expil'ea 1
Conunissiol1 #CC022902 line 18, 1994
--NOTICE OF PUBUC HeARING'
CITY OF WINTER SPRINGS, F\.OR~
NOTICE IS HEREBY GIVEN by the City
Commission of the CIty of Winter
Springs, Florida., thet .sa;d CommISSlO~
will hold Il PublIc HlliIII/1ll on an ordI-
nance entitled as folloWS: ,r.'
ORDINANCE NO. 534
AN ORDINANCE SETTING FORTH
THE PROCEDURES FoR, THE DE-
TERMINATION OF VESTED
RIGHTS' PROVIDING FOR AN AP-,"
PLICATioN FORM; PROVIDING
FOR TIME UMITATIONS TO FILE
VESTED RIGHTS APPUCATIONS;
PROVIDING FOR A PUBUC HEAR-
ING AND ADMINISTRATIVE OR-
DERS APPROVING OR DENYING A
VESTED RIGHTS SPECIAL USE
PERMIT; PROVIDING FOR A!j;-....
PEALS OF ADMINISTRATIVE On-
DERS TO THE CITY COMMI$SION;,.
PROVIDING FOR HEARINGS ON
APPEALS; PROVIDING STAN.
DARDS FOR DETERMINATING
VESTED RIGHTS; PROVIDING UM-
ITATIONS ON VESTED RIGHTS'.'
SPECIAL USE PERMITS; PROVI!).
ING SEVERABILITY; PROVIDING
AN EFFECTIVE DATE.
This Public Hearing will be held at 7:30
p.m. on November.23, 1992 or as SO?"
thereafter as poSSIble In the Commts-
sion Chamber. City Hall, 1126 East S. R.
434 Winter Springs, Fl, 32708.
, coPies of the proposed ordinance. are
available in the office of the City Clerk
for inspection. Interested partieS may
)pear at this hearing and be. hel\rd
:ith respect to this proposed ordInance.
Persons are advised that n they decide
to llppaal any decisio'1 mada at thIS
meeting, they will need a record of the
proceedings and for $UCh pu~.:!'ey
may need to ensure thet a v.. ,,",w" r~
cord of the proceedings is made whl~r
record includes the testimony and evl'
dence upon which the appeal IS to. be
based per Section 286.0105 FlOrida
Statutes.
Dated this 1 st day of November, 1992. ,
CITY OF WINTER SPRINGS,
, FLORIDA
\ Is! Mary T. Norton
Mary T. Norton
CiClert<
SLSAS6302' _~1,1~2