HomeMy WebLinkAboutOrdinance No. 27-2003 ORDINANCE NO 27 -2003
(iv AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CAPE CANAVERAL, FLORIDA CREATING A NEW
CHAPTER 115 OF THE CITY OF CAPE CANAVERAL
CODE OF ORDINANCES, RELATING TO VESTED
DEVELOPMENT RIGHTS; PROVIDING FOR THE
REPEAL OF PRIOR INCONSISTENT ORDINANCES AND
RESOLUTIONS, INCORPORATION INTO THE CODE,
SEVERABILITY, AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the
State Constitution, to exercise any power for municipal purposes, except when expressly
prohibited by law; and
WHEREAS, the doctrine of vested rights limits local governments in the exercise of
their zoning powers when a property owner relying in good faith upon some act or omission of
the government has substantially changed position or incurred such excessive obligations and
expenses that it would be highly inequitable and unjust to destroy the rights that the owner has
acquired. City of Key West v. R.L.J.S. Corp., 537 So.2d 641 (Fla. 3rd DCA 1989), review denied,
'x 545 So.2d 1367 (Fla. 1989); and
WHEREAS, in light of the forgoing authority, the City Council recognizes the fact that
property owners may from time to time have vested land development rights and the City
Council desires to adopt a vested rights ordinance in order to adopt an orderly procedure by
which the City Council can process requests made to the City for a vested rights determination;
and
n WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this
ordinance to be in the best interests of the public health, safety, and welfare of the citizens of
Cape Canaveral.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL
x HEREBY ORDAINS, AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by
reference as legislative findings and the intent and purpose of the City Council of the City of
Cape Canaveral.
Section 2. Code Amendment. The City of Cape Canaveral Code Chapter 115,
Vested Rights, is hereby created as follows (underlined type indicates additions):
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Chapter 115 - Vested Rights
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ARTICLE I.
IN GENERAL
Sec. 115 -1. Purpose and Intent.
In recognition of the fact that certain land development rights of property owners may be or
become vested with respect to the City of Cape Canaveral's Comprehensive Plan and land
development regulations adopted to implement the Comprehensive Plan, 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.
Sec. 115 -2. Definitions.
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(a) The following words, terms and phrases, when used in this Article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
f 1) City Attorney shall mean the City Attorney of the City of Cape Canaveral,
Florida.
(2) City Council shall mean the City Council of the City of Cape Canaveral. Florida.
(3) City Manager shall mean the City Manager for the City of Cape Canaveral,
Florida.
(4) Comprehensive Plan shall mean the Comprehensive Plan for the City of Cape
Canaveral, in accordance with the Local Government Comprehensive Planning
and Land Development Regulation Act (Sections 163.3161 - 163.3243, Florida
Statutes), as such plan may be amended from time to time.
(5) Construction shall mean the introduction and use at the Development site of both
labor and materials in the assembly and erection of the Structures or infrastructure
associated with the particular Development. Such Construction shall be
performed in a manner consistent with the City Code and the Development
permits which have been issued by the city. Construction typically means more
than mere clearing, grubbing, grading, and staking the Development site and
includes Good Faith efforts on the part of the landowner to proceed under, not
merely to prolong the effectiveness of, the Development Order or permit or
approval in question.
(6) Development shall mean the carrying out of any building activity or the making of
any material change in the use or appearance of any Structure or Land.
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Ordinance 27 -2003
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(7) Development Order shall mean any order issued by the city granting, denying or
granting with conditions an application for a Development permit as that term is
defined in Section 163.3164, Florida Statutes.
(8) Good Faith shall mean honesty of intention, and freedom from actual or
constructive knowledge of circumstances which ought to put the holder upon
inquiry. Good Faith shall not encompass dishonest, fraudulent or deceitful action,
ignorance of the law, mistake of law, circumvention of legal requirements, or
delay resulting from neglect or lack of diligence.
(9) Land shall mean the earth, water and air above, below, or on the surface, and
includes any improvements or Structures customarily regarded as Land.
(10) Parcel of Land shall mean any quantity of Land capable of being described with
such definiteness that its location and boundaries may be established, which is
designated by its owner or developer as Land to be used or developed as a unit or
which has been used or developed as a unit.
(11) Party shall mean:
a. A specifically named Person whose substantial interests are being
determined in a vested rights proceeding.
b. Any other Person who is entitled to participate in the vested rights
determination because the Person's substantial interests may be affected
by the determination, and who makes an appearance before the City
Council at the vested rights determination proceeding.
c. Any other Person allowed by the City Council for good cause shown to
intervene or participate in the vested rights determination.
d. Any agent, representative, or counsel of any Person described in
subparagraphs a, b, or c above.
(12) Person shall mean an individual, corporation, partnership, governmental agency,
business trust, estate, trust, association, two (2) or more Persons having a joint or
common interest, or any other legal entity.
(13) Structure shall mean anything constructed, installed orportable, the use of which
requires a location on a Parcel of Land. It includes a movable Structure while it is
located on Land which can be used for housing, business, commercial,
agricultural, or office purposes either temporarily or permanently. "Structure"
also includes fences, billboards, swimming pools, poles, pipelines, transmission
lines, tracks, and advertising signs.
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Ordinance 27 -2003
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(14) Subdivision shall mean any Subdivision of Land as defined in Section 98 -1, City
Code.
Sec. 115 -3. Vested rights permits, effect.
(a) Any Person may request from the city a determination of whether the Person's right to
complete a Development is vested pursuant to this Article, notwithstanding that all or
some part of the Development is inconsistent with the City's Comprehensive Plan or land
development regulations. Such request shall be made by way of application in accordance
with the procedures described in this Article.
fib) Possession of a vested rights permit shall enable a permit holder to complete the
Development approved under such permit, up to and through issuance of appropriate
certificates of occupancy. This right to continue the Development is subject to the
limitations provided herein and subject to compliance with such laws and regulations
against which the Development is vested.
Sec. 115 -4. Exhaustion of administrative remedies required.
No applicant, claiming that this Article as applied to a particular property constitutes or would
constitute an abrogation of vested rights, may pursue such claim in court unless the applicant has
first exhausted the administrative remedies provided in this Article.
C Sec. 115 -5. Standards for determining vested rights.
4 (a) An application for a vested rights determination shall be approved if the applicant has
demonstrated all of the following:
(1) The applicant, in reliance upon the valid, unexpired act of the City, has made a
substantial change in position or has incurred extensive obligations or expenses;
and
(2) The applicant's reliance was reasonable and in Good Faith; and
(3) It would be inequitable, unjust or fundamentally unfair to destroy the rights
acquired by the applicant by means of the City's act or omission.
The criteria set forth above shall not be deemed an exclusive statement of the grounds for
determining that the right to develop or to continue the Development of property exists.
The City may also consider applicable statutory and case law legal authority.
(b) The purchase of property in reliance on then existing zoning is not by itself sufficient to
vest thepurchaser's right to develop in accordance with said zoning.
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(c) The following are not considered Development expenditures or obligations, as
' C contemplated by sub - section (a)(1) above, which would be sufficient for the vesting of
development rights, unless the applicant was unable to obtain further approvals because
of extraordinary delays beyond the applicant's control:
(1) Expenditures for legal and other professional services that are not related to the
design or Construction of improvements
a) Taxes paid; or
(3) Expenditures for initial acquisition of the Land.
These expenditures may, however, be considered in conjunction with other expenditures
or obligations incurred by an applicant to demonstrate reliance upon an act or omission of
the City.
Sec. 115 -6. Permit expiration; substantial deviations, etc.
(a) The purpose of this Article is only to specify the circumstances under which a Person
may undertake or continue the Development of Land despite the inconsistency of the
Development with the City's Comprehensive Plan and land development regulations.
Nothing in this Article shall act to create rights that otherwise do not exist. Therefore,
`$ upon the expiration of any Development Order or permit or approval that serves as the
C predicate for the property owner's right under this Article to develop, the rights granted
under the Article shall likewise expire. Also, if any application for a permit or other
approval is denied, or if the application is granted but the permit or approval later expires
for lack of Construction or otherwise, and if the submission of the application serves as
the predicate for the rights granted under this Article, then the rights granted hereunder
shall also expire.
(b) Furthermore, any such Development shall continue to be subject in all respects to all
laws, ordinances, rules, and regulations and shall continue to be subject to all terms,
conditions, requirements and restrictions contained in any Development Order or permit
or approval or binding letter of vested rights pertaining to the particular Development.
(c) Any substantial change or substantial deviation from the terms of the Development Order
' upon which a vested rights permit was predicated shall cause the change or deviation to
become subject to the Comprehensive Plan and land development regulations.
Sec. 115 -7. Application for vested rights determination.
(a) Filing of application. Any Party who believes they are entitled to a vested rights permit
for aparticular Development shall complete, execute, and file an application for a vested
rights permit with the City Manager, in accordance with this section.
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(b) Due date. The purpose for which vested rights permits are issued is to provide certainty
and predictability in the use and conveyance of Land and interests therein. There is no
deadline, therefore, for applying for a vested rights permit. However, a Party shall have
waived and abandoned any claim to vested rights for a particular property if an
application for a vested rights permit is not filed within thirty (30) days after the
following actions:
Denial of a Development Order for that Property, when the denial is based on
inconsistency with the City's Comprehensive Plan or land development
regulations or failure to meet the concurrency requirements of the Comprehensive
Plan;
(2) Receipt of notice of a proposed rezoning or future land use map amendment
initiated by the City for that Property.
(c) Contents of application. The application shall contain at a minimum:.
(1) The name of property owner;
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(2) The address of property owner;
(3) The telephone number of property owner;
(4) The project name, if applicable;
(5) The street address of property, if known;
The legal description for the property;
(7) A statement providing the factual basis upon which the application is brought and
the legal basis upon which the application is based. To comply with this provision
it is recommended an applicant submit a memorandum of law researched and
prepared by a licensed Florida attorney;
(8) All supporting information, including Development Orders and permits, contracts.
letters, appraisals, reports, or any other documents, items or things upon which the
application is based;
(9) A list of the names, addresses, and telephone numbers of any witnesses whom the
applicant shall present in support of the application and a summary of the
testimony of each witness; and
(10) Any other information reasonably required by the City Manager or City Attorney.
(e ,
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An incomplete or insufficient application shall be returned to the applicant for additional
\rr' information.
(d) Certification by and continuing obligation of applicant.
(1) The signature of the applicant, or any agent or attorney for the applicant, upon the
application shall be required and constitute a certification that the Person signing
the application has read the application and relevant supporting information and
that to the best of the Person's knowledge and belief the same is true and correct.
(2) Until the proceedings to grant or deny the application are final (including the time
during which judicial appeals are pending), the applicant shall have a continuing
obligation to correct any statement or representation found to have been incorrect
when made or which becomes incorrect by virtue of changed circumstances.
Sec. 115 -8. Review and recommendation by City Attorney.
(a) To facilitate the City Council's review of a vested rights application, the City Attorney
shall review all applications and evidence filed pursuant to this Article. The City Attorney
shall have the authority to request additional information from the applicant or interested
Persons which is relevant to the vested rights determination. No application shall be deemed
complete until all information requested has been supplied or until such request is
withdrawn.
(b) Unless additional time is granted by the City Council, the City Attorney shall prepare a
preliminary non - binding report within forty -five (45) calendar days after receipt of a
complete and sufficient application. The report shall be supported by written findings of
fact and conclusions of law based on the information and evidence furnished at the
application stage.
(c) The City Attorney shall submit the report to the City Council. A copy of such report shall
be provided to the applicant and the City Manager.
(d) Upon receipt of the City Attorney's report, the City Manager shall schedule a public
hearing before the City Council regarding the application for vested rights.
Sec. 115 -9. Supplemental Evidence.
Within seven (7) calendar days after receipt of the written report by the City Attorney, the
applicant may supplement the information contained in their application.
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Ordinance 27 -2003
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Sec. 11540. Vested Rights Agreements.
Nothing contained in this Article shall prohibit the City Council from entering into a vested
rights agreement with a Party for purposes of resolving any claim for vested rights.
Sec. 115 -11. Public Hearing.
(a) The City Manager shall schedule a public hearing before the City Council to be held
within thirty (30) days of the City Manager's receipt of either (i) the written report by the
City Attorney; or (ii) a proposed vested rights agreement.
(b) All hearings shall be open to the public and shall be advertised in a newspaper of general
circulation not less than ten (10) days prior to the date of the hearing.
(c) The parties before the City Council shall be the applicant, the applicant's witnesses, if
any, city staff, interested members of the public, if any, and witnesses of the interested
members of the public, if any. Any interested member of the public who participates at
the hearing shall leave his or her name and mailing address with the city clerk.
(d) Testimony and evidence shall be limited to matters directly relating to the application and
Development. Irrelevant, immaterial or unduly repetitious testimony or evidence may be
excluded.
(e) The applicant shall have the burden of coming forward with the evidence and the burden
of proof. The decision of the City Council shall be based on competent substantial
evidence.
(f) Minimum due process procedures shall apply including notice, an opportunity to be heard
in person or by counsel, and the right to cross - examine witnesses. Cross examination
shall be confined as closely as possible to the scope of direct testimony. The City
Council reserves the right to call and question witnesses or request additional evidence as
they deem necessary and appropriate.
To that end, if during the hearing the City Council believes that any facts, claims, or
allegations necessitate review and response by either the applicant, city staff, or both, then the
City Council may continue the hearing until a date certain. The City Council shall decide
all questions of procedure and standing.
(g) The City Council shall approve or deny in whole or in part the claims of the applicant.
Such decision shall be rendered in writing within fourteen (14) calendar days after the
hearing concludes. The decision of the City Council shall contain findings of fact and
conclusions of law, and shall provide the legal description of the property to which it
applies. It may contain reasonable conditions necessary to effect the purposes of this
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Article. The decision shall be filed with the City Manager and a copy provided to the
applicant by certified mail, return receipt requested.
Sec. 115 -12. Issuance vested rights permit.
If the application for a vested rights permit is granted, the City Manager shall issue a vested
rights permit allowing the applicant to develop or continue to develop the vested Development in
question, notwithstanding any provision of the City's Comprehensive Plan or land development
regulations with which the continued development would otherwise appear to be inconsistent.
Sec. 115 -13. Judicial review.
Any Person aggrieved by a final decision of the City Council under this Article shall have the
right to appeal the final decision to a court of competent jurisdiction. The record before the
circuit court shall consist of the complete record of the proceedings before the City Council.
Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior
inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances
and resolutions in conflict herewith, are hereby repealed to the extent of the conflict.
Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the
Cape Canaveral City Code and any section or paragraph number or letter and any heading may
be changed or modified as necessary to effectuate the foregoing.
C re Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or
provision of this Ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for substantive, procedural, or any other reason, such portion
shall be deemed a separate, distinct and independent provision, and such holding shall not affect
the validity of the remaining portions of this Ordinance.
Section 6. Effective Date. This Ordinance shall become effective immediately upon
adoption by the City Council of the City of Cape Canaveral, Florida, and pursuant to the City
Charter.
[ADOPTION PAGE FOLLOWS]
City of Cape Canaveral
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Ordinance 27 -2003
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ADOPTED by the City Council of the City of Cape Canaveral, Florida, in a regular
meeting asse on the 18th day of November, 2003.
V / .
Cl
ROCKY RANDELS, Mayor
ATTEST: For Against
Bob Hoog MOTION
Jim Morgan X
SUSAN TI LS, City Clerk Buzz Petsos X
Rocky Randels X
Richard Treverton SECOND
First Reading: 10/21/03
Legal Ad published: 11/08/03
Second Reading: 11/18/03
Approved as to legal form and sufficiency for
the Ci of C, pe Canaveral only:
7 . 111 /11
ANTHONY A. GARGANESE, City Attorney
I Cie
(111 City of Cape Canaveral
Ordinance 27 -2003
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