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HomeMy WebLinkAbout1992 08 03 City Commission Workshop Minutes . . . WORKSHOP MEETING CITY COMMISSION CITY OF WINTER SPRINGS AUGUST 3, 1992 The Workshop Meeting was called to order by Mayor Philip A. Kulbes at 7:15 p. m. Roll Call: Mayor Philip A. Kulbes, present Deputy Mayor John Langellotti, present City Manager Richard Rozansky, present Attorney Keith Bricklemyer, present Commissioners: John V. Torcaso, absent Don Jonas, present Terri Donnelly, present Cindy Kaehler, absent Vested Rights Ordinance: Manager Rozansky made reference to the City Planner's memo of July 22, 1992 on vested rights determination. Attorney Bricklemyer said the basic issue the City Planner had researched was who was making the determination of vested rights in other jurisdictions, and what was the appeal process. Attorney Bricklemyer said there is quite a variety of ways it can be done, and it is really in the discretion of the City what makes the most sense to do. Commissioner Jonas explained the reason Commissioner Kaehler brought this up was she felt it would put the City Manager in a difficult position to have to try to defend an employee who had given wrong information. Attorney Bricklemyer explained one way to solve that problem is to leave the system with the Manager, City Planner or City Attorney because there is an appeal process to the City Commission. He said someone would have to be pretty foolish to spend a lot of money in reliance on a verbal commitement. He said the problem with the vested rights determination is it is really a legal determination and that is why a lot of jurisdictions who expect to have a high volume of these things have gone to a hearing officer. They will hire an independent hearing officer who is an attorney and specializes in land use practice but does not work in that particular community and he is an impartial observer. He will come in and make findings of fact, conclusions of law and he will give a decision. If the person does not like the decision, he can appeal it to the city commission or go to court. Attorney Bricklemyer said it really depends on how many of these kinds of cases the City expects to have. Attorney Bricklemyer said the one decision that needs to be made is who do you want to make the initial determination. Mayor Kulbes said Mr. Don McIntosh had a question about item C-l on page 5. He wanted to know whether the applicant had to prove a, b, c and d, or anyone of those or a combination of any of those. Attorney Bricklemyer said the ordinance is structured so that those are ands and you have to prove them all. The two tests that were set up were a black and white test and a grey test. The black and white test is if you have a building permit you can go forward. The grey test is a common law test, that is a balancing test. . Workshop Meeting, City Commission, August 3, 1992 Page 2 Mayor Kulbes said Mr. McIntosh also had a question on Page 5, Sec. 4, Paragraph 2 regarding the 5 year period. Attorney Bricklemyer suggested the City is best served by having a check at least every five years to find out what is going on. If the project is vested for 5 years and they come in at the end of that time and say we need another 5 years, and they have not done anything, then the City would think twice about renewing the application. Mr. McIntosh said if you get a vesting certificate that says that you have 5 years and can come back and ask for an extension, and the lender knows you can not build out in 5 years, you do not get your money and that is a very real constraint. Attorney Bricklemyer explained under this ordinance, a person would make application, it would go to the City Manager, the City Manager would say "too hot for me to handle", and he would send it to the Commission. The Commission has the authority to say it is a 20 year buildout, and they would say provided that you demonstrate your continuing good faith and you submit an annual report to us after the fifth year to demonstrate your continuing along with the project. Commissioner Jonas asked if it could be spelled out in the ordinance that if a developer needs a longer buildout period, a longer vested rights permit could be given. Attorney Bricklemyer said he can elaborate on that and say except as otherwise stated in the vested rights special use permit based on circumstances that would demonstrate the necessity for a longer vesting period. He said in Paragraph 11 of the application, he could add: and the duration of time requested. . Glen Marvin asked if there could be a modification of the statement called for continuing development until the court order is completed or until the expiration of the court order whichever occurs first. Attorney Bricklemyer said if he were going to court to get an order that said he had vested rights against the City of Winter Springs regulations, he would be sure the court order said how long it was good for, but the limitation section allows you to get extensions and allows you to get a statement as to what the duration of the permit is and he said we can clarify the vesting in accordance with the court order is going to be based on the terms of the court order and court orders do not expire. Mr. Marvin said he was talking about the Settlement Agreement and that it does not have a time limit on it. Attorney Bricklemyer explained to categorically say you have vested rights to complete that project and forever more takes away public facility capacity to the next guy who comes in and wants to develop it, and if no further develop- ment is done, that is not fair to the City. The City ought to have the right to say use it within a reasonable period of time, or get out of here and let somebody else use it. . Attorney Bricklemyer discussed Section 4, No.3. He said in most cases governmental entities require an annual report, and they are required either after the first, second or third year, depending upon how liberal you want to be. The purpose is that you do not want someone to claim they have vested rights when all they are doing is sitting back holding the poker hand trying to sell that vested rights to the highest bidder at some point in time. If they are going to develop, let them use it, if they are not going to develop then let somebody else come in who might want to use it. It is actually the citizens investment in public facilities that is being held up so I think you have an obligation to say if you are a good faith developer go forward, . . . Workshop Meeting, City Commission, August 3, 1992 Page 3 if you are not we are going to let the next guy go forward. Attorney Bricklemyer said the annual report is not mandatory and he said the City ought to have the right to ask developers what they are doing and if they are not doing anything the City can take away their vested rights. Manager Rozansky said he thinks an annual report protects the developer and the City. Mr. Marvin said you can get a contract and not close for ten months. He said he didn't agree if the City issues a vested rights permit for a period of 5 years, 3 years or 10 years, that the City should be allowed to re-review it each year with the ability to take it away. Commissioner Donnelly suggested the 5 years should be solid and then anything after that could be renewable but we should spell out what criteria because these people need to have a handle on what can be relied on. Attorney Bricklemyer explained the permit can initially grant a vested rights period longer than 5 years. He said you may want to grant them more than 5 years subject to conditions that after 5 years they start submitting an annual report. The second thing is to accomplish that, I would just delete Paragraph 3 in its entirety. Third thing, I would define continuing in good faith a little more clearly in the paragraph that precedes that. Attorney Bricklemyer said under your scenario they have 5 years, then they can come back and ask for an extension for more than 5 years and they will get the extension provided they have commenced physical development and are continuing in good faith, but what is continuing in good faith? He said to give a list of things explaining that more fully. Commissioner Langellotti suggested they come in with an annual report every year after the 5 years. Manager Rozansky asked why couldn't you get a report during the 5 years anyway, without the threat of taking anything away from them because that would give you a basis to make some decision on the upcoming 5 years. Mr.Marvin asked if land that has vested rights is sold by the current owner, to a new owner, do they then have to reapply for vested rights? Attorney Bricklemyer said it runs with the land. He said that is not common law but that is the way most ordinances have been drafted and that is the way this ordinance has been drafted. The new owner would have to develop consistent with the vested rights permit. Mr.Marvin asked if a new owner of a parcel of land that came from a big piece of land that had vested rights, reapply for a change to his vested rights? Attorney Bricklemyer explained the basic issue in vested rights is, did the person who owned the property before the adoption of the regulations rely. Somebody who bought the property after the regulations were enacted cannot rely on something prior to the regu- lations being adopted, so you are the one who relied and we will say because you relied we will grant you vested rights under these conditions. If I buy from you I get the benefit of what you secured in terms of vested rights provided I live up to those same conditions. Attorney Bricklemyer summarized what had been said so far: In Section 1 we are going to more fully explain that if somebody makes the case they can get more than 5 years to start off. In such case they are going to have to file annual reports demonstrating they are continuing in good faith beginning in the 6th year, at the end of the 6th year for whatever period of time that they were initially granted. If they got 5 years or ten years and they came in and requested an extension, then we are going to define what continuing in good faith means in order to allow them to get an extension Workshop Meeting, City Commission, August 3, 1992 Page 4 . and anything over 5 years they are going to have to file an annual report to demonstrate. He said why don't we give you the flexibility in making the determination requiring an annual report whenever you think its appropriate, and the Commission agreed. Mr. McIntosh said the only concern is if a person is given vested rights and then it is conditioned such that it sounds like at any moment during the period, whatever it is, 2 years, 5 years or ten years, that it can be taken away through an action of the City Council, the lenders are not going to lend because of fear that that right could be taken away the way the ordinance is written right now, that is the fear. He said if you grant a period 5 years or 8 years, and you grant that person rights, he said all his clients would be happy to give an annual report every single year; the problem is not the report, the problem is if the City is going to condition the granting of the vesting on a report. Mayor Kulbes answered the reason for the report is to make sure that if you come in for an extension you are going to do something to develop that land. Mayor Kulbes asked is it the consensus of this Commission that paragraph 3 be eliminated? Commissioner Donnelly answered yes, and Mayor Kulbes said he gets the feeling that it should be eliminated. Attorney Bricklemyer said he would like to specifically state that the City has the authority to impose conditions on permits. In some circumstances, it may just be such a questionable deal that you want to require an annual report, and you can impose conditions and that will leave it open. . He said what has been done in most other cases is continuing in good faith you have to commence physical development; continuing in good faith generally means that you have pulled some significant permits during that period of time and generally vested rights are based on a permit that has a life and if the underlying permit for the vested rights is expired, your vested rights are expired. Mr. Marvin said in Section I Intent, it talks about the possibility of being vested with respect to the LDRs. The new LDRs which we do not know what they are going to be or what they are going to say yet and back to Section 4, No.1, it seems to contradict that a little bit. Attorney Bricklemyer said all Section 4, No. 1 says is after 5 years you are no longer protected. You can get protection against the Comprehensive Plan, and you can get protection against the LDRs until your vested rights permit expires, and then you lose your protection. Mr. Marvin asked when you apply for vested rights, can you apply to be exempt from all the new LDRs? Attorney Bricklemyer answered that is what you would generally get. You are going to be exempt only against those LDRs that would prevent you from doing what you are asking permission to do. If none of those regulations would prevent you from doing ten units to the acre you have to comply with them because they do not hurt you. . Mr. McIntosh asked on a commercially zoned piece of property, if you have 200,000 square feet of commercial space that is approved in with the application of the LDRs as they will be written you could not get 200,000 square feet. As I understand what Workshop Meeting, City Commission, August 3, 1992 Page 5 . you said, to the extent that it would preclude you from doing what you could do before, you are exempted from the new LDRs if you can apply them and still obtain the 200,000 square feet, you are bound to apply those you can apply. Attorney Bricklemyer said that is correct; if it makes it impossible then you do not apply those particular regulations. What is probably going to happen is, the FAR limitation may be such that you could not get it. That would be one very obvious example. One of the other examples that more frequently occurs is your drainage requirements are going to be enhanced but they are probably not going to be more enhanced than the Water Management District. You are not getting vested from Water Management District criteria, you are only getting vested from City rules and regulations, so you may not be able to do it anyway. Mr. McIntosh said in this particular situation, based where we left the Comprehensive Plan headed toward the LDRS, the open space criteria, the wetlands setback criteria and preservation of natural habitat criteria, all of those things definitely preclude the development of Springs Land property as it is proposed, so I appreciate the clarification. Mr. McIntosh said if I am granted vested rights but I do not have a specific plan approved by Staff, would I then be in a position to argue that I could have done this with my property under the old LDRs, but the new LDRs only allow me to do less than that and it is easy with the plan that is already approved. It is not quite so easy when you have a piece of land that may be not that far along but it is still granted vested rights. . Attorney Bricklemyer answered the City Manager's order shall include findings of fact, conclusions of law and shall state specifically what rights if any are vested. So when you make that application you are going to say here is what I want to do and here are the reasons I think I ought to have a right to do it. Mr. McIntosh talked about Itlem 4b on page 6, regarding deviations. He said his project could not be built as previously envisioned. He said he has a site plan that has 200,000 square feet of configured retail commercial space. He finds out that the market does not any longer favor strip retail local space so they have taken off 30,000 square feet of local space because there is no reason to build it. He said the way I understand it, it is a market driven preference; in and by that action it can be argued that impacts are less then they were previously. How would that substantially change assuming 30,000 square feet is a substantial change to a 200,000 square foot shopping center? . Attorney Bricklemyer said again go back to the objective. The objective is some people would be at an unfair disadvantage if you required them to comply with new regulations, so you say they are vested. The City has to set aside capacity and public facilities. So this little block of capacity has been set aside for your project. Now you come in and say I want to take 30,000 square feet off. Fine, we do not care, we can reduce our capacity investment, that is not a substantial change. What the ordinance says is any change in density or intensity of use which would increase the development impact on those public facilities subject to con- currency by more than 5%. The issue is your vesting impacts and if you come in and say I want to change my development and I need some more impacts than what I have vested, this ordinance says no. If you go over more than 5% of what you have, tough. You have to comply with the new rules and regulations. If you change the project . . . Workshop Meeting, City Commission, August 3, 1992 Page 6 otherwise and do not increase your impacts we've already got those impacts set aside and we will let you monkey around with it as long as you do not exceed those 5%. Meeting was adjourned 8:25 p. m. Respectfully submitted, Mary T. Norton, City Clerk