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".
.
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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
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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-
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I ~; . .
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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
"
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0.9 0 0.9 Miles
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EXHIBIT "B"
rr"~5 r ~npv
~~ ti t~ l. '13 tf I
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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
"
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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
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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".
";:.
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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