§ 62-507. Comprehensive plan interpretation appeal procedure; presentation of claims for regulatory takings, Bert Harris Act, or vested rights claims.

(a)

Generally. The board of county commissioners shall hear appeals relating to any administrative decision or interpretation concerning the implementation of the 1988 county comprehensive plan, as amended, and the regulations contained in article X of this chapter, as well as any Bert Harris claim or claim that temporary or permanent taking of property has occurred. As to appeals involving the comprehensive plan, if so requested by the property owner the local planning agency may hear the appeal, take public comment and make a recommendation to the board of county commissioners as to the appropriateness of the interpretation of the plan or decision implementing the plan. The board of county commissioners shall hold a second public hearing and shall make the final decision approving or disapproving the administrative decision or interpretation. A special master shall be appointed by the board of county commissioners to hold a quasi-judicial hearing and issue a proposed order recommending the grant or denial of vested rights on applications for vested rights filed by persons claiming such rights against the county. Property owners alleging a taking of property or abrogation of vested rights or appealing an administrative decision or interpretation must affirmatively demonstrate the merits of their claim by exhausting the administrative action provided in this section. If an ordinance reiterates the language or intent of a comprehensive plan provision addressed by an appeal under this section, the decision of the board of county commissioners relating to the comprehensive plan provision shall also apply to the affected ordinance. However, in no event shall this section be substituted for or used to bypass the variance and appeal procedures established under article II of this chapter.

(b)

Application.

(1)

If any party aggrieved by an administrative decision; application of a new regulation resulting in an alleged inordinate burden; interpretation; alleged taking; or abrogation of vested rights wishes to take a claim or an appeal to the board of county commissioners or, in a vested rights case, to an appointed special master. An application for consideration of the claim shall, unless otherwise specified by law, be filed with the county within 30 calendar days from the date of rendition of the original adverse written decision or interpretation giving rise to the claim. The first written decision or interpretation of the administrative official giving rise to the appeal, takings claim or vested rights claim that specifies the precise basis for the decision and the supporting rationale underlying the decision shall be the only rendition of the decision or interpretation that qualifies for review under this section.

(2)

a.

Claims of a taking are limited solely to extreme circumstances rising to the level of a potential denial of rights under the constitutions of the United States and the state. The procedures provided in this section for demonstrating such a taking are not intended to be utilized routinely or frivolously, however, after considering a takings claim the county commission determines that no taking has occurred the commission's decision shall constitute a ripening decision that the applicant may accept as the county's final decision for the purposes of seeking de novo judicial review of a takings claim.

b.

The property owner or the attorney for the property owner shall exercise due diligence in the filing and argument of any sworn statement, administrative remedy or other claim for a taking, abrogation of vested rights or Bert Harris Act claim. The signature of the property owner or the attorney for the property owner upon any document in connection with a claim of taking, abrogation of vested rights or Bert Harris Act claim shall constitute a certificate that the person signing has read the document and that to the best of his knowledge it is supported by good grounds and that it has not been presented solely for delay. The property owner and the attorney for the property owner shall have a continuing obligation throughout the proceedings to correct any statement or representation found to have been incorrect when made or which becomes incorrect by virtue of changed circumstances. If a claim of taking, Bert Harris Act claim or abrogation of vested rights is:

1.

Based upon material misrepresentation of facts that the property owner or the attorney for the property owner knew or should have known was not true; or

2.

Frivolous or filed solely for the purposes of delay, the appropriate county board, special master or agency shall make such a finding and may dismiss, deny or, in the case of a special master, recommend denial of the application or pursue any remedy or impose any penalty provided by law or ordinance.

c.

Takings claims will be reviewed by applying recognized judicial criteria for determining the existence or non-existence of a taking under state and federal constitutional law. Bert Harris Act claims will be reviewed under the standards and procedures described in F.S. § 70.01 or any successor or amended version of such statute.

(3)

The application shall be accompanied by a fee established by resolution of the board of county commissioners from time to time. The application shall contain the following information:

a.

The name, address and telephone number of the person making the appeal.

b.

The names of the owners of the affected parcel.

c.

The citation of the specific provision or provisions, if any, of applicable ordinances, the comprehensive plan or of article X of this chapter to which the administrative decision or interpretation is related and from which the appeal or claim results.

d.

A copy of the written request for an administrative decision or interpretation, if any, and the written action describing the nature of the decision or interpretation giving rise to the appeal or claim. Either the written action or the application shall include the name of the administrative officer who made the decision or interpretation and the date of the decision or interpretation. As to interpretations of the county comprehensive plan, decisions of the county manager or designee, shall be appealable. As to the regulations contained in article X of this chapter, the decisions of the county manager or designee shall be appealable.

e.

A sworn statement from the aggrieved party or property owner describing the basis of the appeal or claim. The sworn statement shall be accompanied by copies of any contracts, letters, appraisals, reports or any other documents, items or things upon which the applicant's claim is based. A list of the names and addresses of any witnesses which the applicant proposes to present in support of the claim and a summary of the testimony of each witness is also required. Supplemental or newly discovered evidentiary or documentary support for a claim may be filed until seven days before any scheduled meeting or hearing at which the claim or appeal will be considered.

(c)

Public hearing; notice requirements.

(1)

Upon receipt of the completed application for the appeal or presentation of claim, the county manager or his authorized designee shall schedule a public hearing before the local planning agency (at the discretion of the property owners) and the board of county commissioners or, in the case of a vested rights application, forward the application to a special master designated to hear the claim. Notice of the date, time and place of the public hearing(s) or special master hearing shall be provided to the applicant and the public as provided in subsection (c)(2) of this section.

(2)

Notice of the nature of the appeal or claim and the date, time and place of the public hearings for the appeal shall be published twice: once not less than 14 days prior to the date of the local planning agency hearing, if one has been requested by the applicant, and the second at least five days prior to the local planning agency hearing. Notice of the special master hearing shall be published once at least 14 days prior to the date set for the hearing. All advertisements shall be placed in a newspaper of general circulation within the county. Such notice shall also contain the name of the applicant or claimant and the citation of the specific comprehensive plan provision or the ordinance on which the administrative decision or interpretation and the appeal is based, or a general summary of the claim made if a taking of property or abrogation of vested rights is alleged.

(d)

Criteria for consideration of vested rights. The following criteria shall be considered by the special master in review of a vested rights claim. Upon a determination that the applicant has demonstrated compliance with the vested rights criteria below by a preponderance of substantial competent evidence and upon a determination that granting vested rights will not create imminent peril to public health, safety or general welfare of the residents of the county, the special master shall forward a proposed order recommending that the county commission grant vested rights, with or without conditions. However, if the application is not supported by substantial competent evidence demonstrating compliance with the criteria below, the special master shall forward a proposed order recommending that the county commission deny the vested rights application.

(1)

The vested rights criteria to be considered and applied by the special master are as follows:

a.

There is an act or omission of the county provided, a zoning or rezoning action in and of itself does not guarantee or vest any specific development rights.

b.

The property owner acted in good faith reliance on the county's act or omission, provided failure to act within the time requirements of this chapter may negate a claim that the owner acted in good faith upon some act or omission of the county or that the development has continued in good faith under F.S. § 163.3167(8).

c.

The property owner substantially changed position in reliance upon the act or omission of the county to the extent that the obligation and expense of the change of position would be highly unjust or inequitable so as to destroy the right acquired provided the following are not considered development expenditures or obligations that would qualify an applicant for vested rights: legal expenses, expenditures not related to design or construction, taxes or expenditures for acquisition of the land.

(2)

Existing single-family residences utilized as permanent residences and established prior to the comprehensive plan adoption on September 9, 1988, even if inconsistent with the zoning code, may be considered for vested rights. For the purposes of this subsection an "existing single-family residence" includes a single-family lot upon which:

a.

An occupied single-family homestead exempt residence existed prior to or after September 9, 1988; or

b.

A concrete foundation still exists from a single-family homestead exempt residence that was destroyed by fire or natural disaster prior to September 9, 1988.

c.

Any person previously denied vested rights for a lot now meeting the requirements under subsection (2)b. shall be deemed to have vested rights to construct a single-family residence on the lot without further action by the county commission or the special magistrate.

(3)

Projects with vested status will be treated as nonconforming as described in chapter 62, article VI, division 2, subdivision II, section 62-1181.

(4)

Notwithstanding the entry of a special master's order granting vested rights, all development proposed by the applicant receiving the favorable vested rights order must comply with the concurrent requirements of the comprehensive plan.

(5)

Within 45 days of completing a vested rights hearing, the special master or support staff shall forward a copy of the record and a proposed order to the county commission. The proposed order shall contain the following:

a.

Findings of fact with record citations. The special master's findings of fact shall be presumed to be correct and the burden is on the party disputing a finding of fact to demonstrate that the findings of fact are not supported by substantial competent evidence or are clearly erroneous;

b.

Proposed legal conclusions addressing the criteria for vested rights set forth in this ordinance. Proposed legal conclusions will be presumed to be correct and the burden is on the party disputing the proposed conclusion of law to demonstrate that the special master has misinterpreted or misapplied the applicable law. However, the board of county commissioners may reject any legal conclusion if, after reviewing the applicable ordinance criteria as applied to facts, the board has a reasonable, differing interpretation as to how the ordinance criteria apply to the facts;

c.

A recommendation that vested rights be granted; granted with conditions; or denied.

d.

For the purposes of this subparagraph, parties shall mean the applicant, any co-applicant and the county.

(6)

The board of county commissioners shall consider the proposed vested rights order as an agenda item at a meeting which should be held within 30 days after the date of receipt of the proposed order in accordance with the following procedures:

a.

No evidence will be taken by the county commission and the board shall make its decision based solely upon the record, findings of fact and the oral argument of parties to the proceeding, which shall be limited to ten minutes per party. If a party attempts to introduce new evidence, the board shall remand the proceeding to the special master for review of that evidence.

b.

Any party, staff, or person wishing to submit written argument in support of or against the proposed order must submit written argument at least 14 days prior to the date upon which the proposed order will be considered.

c.

Based upon the record, the ordinance and the findings of fact set forth proposed order, the board shall either move to grant vested rights; grant vested rights with conditions; or deny vested rights. In so doing, the board shall either adopt the special master order or enter its own order within 30 days of the date the motion is voted upon.

(7)

An applicant who disagrees with a vested rights decision of the board of county commissioners may take an appeal of that decision by petition for writ of certiorari to the circuit court filed within 30 days of rendition of the board's order. An applicant who disagrees with a decision of the board of county commissioners on a takings claim may, as an alternative to and in lieu of de novo judicial review, elect to take an appeal of that decision by petition for writ of certiorari to the circuit court filed within 30 days of rendition of the board's order.

(8)

Vested rights by consent. The board of county commissioners hereby authorizes the special master to administratively grant consent vested rights to applicants, in a consent agenda format, without the review or approval of the county commission and without conducting a public hearing or evidentiary hearing if the following standards are met:

a.

The special master finds, from a review of the application submitted and supporting materials provided by county staff, including the consent provided for in subsection b., that the criteria for vested rights set forth in subsection 62-507(d)(1) have been met;

b.

The applicant and the county, through its county manager or department director:

1.

Have expressed agreement in writing that the criteria set forth in subsection 62-507(d)(1) have been met, and

2.

Have provided an executed consent, in writing, to either the grant of vested rights, or the grant of vested rights with conditions that are reasonably required to assure as much consistency with the comprehensive plan or land development regulations as is practically or economically feasible based upon the magnitude of the applicant's detrimental financial reliance; and

c.

No person has appeared at the special magistrate hearing in opposition to the application for vested rights.

d.

The claim can not involve a use that is not permitted within the property's comprehensive plan or zoning classification.

e.

A setback or building square footage calculation can not be decreased/increased by over 50 percent.

f.

Building height can not be considered as a consent item.

g.

The county manager may waive or reduce the application fee to cover only actual application processing costs if the applicant is granted consent vested rights and provides evidence that the application fee would impose an unreasonable financial hardship.

(e)

Presumed vested status. The following categories shall be presumptively vested and shall not be required to file an application to establish or preserve their vested rights status.

(1)

Nonconforming lots defined in section 62-1188.

(2)

Development pursuant to:

a.

Article VIII of this chapter, applying to site development plans, and article VII of this chapter, applying to the subdivision of land, where such site development plan applications or subdivision plan and associated engineering plans are complete and have been submitted or approved, and all applicable fees paid, on or before the effective date of the ordinance from which article III is derived or any amendment thereto, provided that when work or activities are authorized they are pursued in the timely manner required by this chapter;

b.

Article VI, division 4, subdivision V of this chapter, applying to planned unit development phases, where a phase's final development plan is complete and has been submitted or approved, and all applicable fees paid, on or before the effective date of the ordinance from which article III is derived or any amendments thereto, provided that when work or activities are authorized they are pursued in the timely manner required by this chapter; or

c.

Chapter 22, applying to the construction of buildings, where a construction building permit application is complete and has been submitted or approved, and all applicable fees paid, on or before the effective date of the ordinance from which article III is derived or any amendment thereto, provided that when work or activities are authorized they are pursued in the timely manner required by this chapter.

(f)

Criteria for amendments to vested site development plans and subdivision plans.

(1)

Where a site development plan or subdivision plan has been vested, and the comprehensive plan has subsequently been amended so that the vested project is no longer consistent with the comprehensive plan or plan amendment, the county may consider an approval to amend the site development plan or subdivision plan based upon the following criteria:

a.

The site development plan shall be deemed to be active, and the application for amendment shall be made prior to the expiration date of the site development plan approval.

b.

The application shall require sworn information relevant and material to a determination of modification, including, but not limited to:

1.

A detailed description of the existing or pending vested rights project, including a detailed description of the particular development in question.

2.

A detailed description of the proposed change.

3.

A detailed comparison of the impacts on facilities and services for which the comprehensive plan establishes level of service standards for both the vested development and the proposed modified development.

4.

A detailed comparison of the impacts on the environment.

5.

A detailed analysis of the compatibility of the proposed modified development with surrounding land uses and the character of the area.

6.

A complete itemization of the approvals and permits encompassed by the vested development as compared with those encompassed by the proposed modified development.

c.

The requested amendment shall reduce the impacts of the site development plan by no less than 30 percent of one or more of the public services and facilities included within the concurrency review; or there shall be a reduction in the impacts to protected natural resources; or the requested amendment shall provide for innovative engineering plans that provide for a safer traffic design; or provide for an increase of more than ten percent for storage of stormwater retention and detention; or provide for an increase of more than ten percent for preservation of native vegetation; or the requested amendment shall provide for further compatibility with the surrounding land uses and the character of the area. In no case shall an amendment be approved which results in an increase of impacts to public facilities and services, or protected natural resources.

d.

The requested amendment shall be consistent with all applicable land development regulations, and the requirements of a specified zoning classification(s) as identified by the county, and shall bring the project into closer compliance with the comprehensive plan and provide for further compatibility with the surrounding land uses and the character of the area.

(2)

The request for amendment of the site development plan or subdivision plan shall be considered by the board of county commissioners in public hearing after adequate public notice. The board of county commissioners shall make the final decision granting or denying the request for amendment. The property owner may request review by the local planning agency in order to make recommendations to the board of county commissioners.

(3)

The request for amendment of the site development plan or subdivision plan shall be accompanied by a fee to be established by the board of county commissioners.

(4)

Upon a determination of approval to amend, the amended site plan or subdivision plan shall be submitted to the land development division for review and approval pursuant to chapter 62.

(g)

Termination of vested status.

(1)

After notice is given by the County, any vested development not pursued or completed within time limits established by this chapter, shall have its vested rights status terminated by operation of law and the permits upon which the development was authorized shall become null and void, unless, within 30 days after notification from the county that vested rights are terminated or that permits upon which the development was authorized are nullified, the owner requests a hearing at which it is established by clear and convincing evidence that the termination of vested rights status or nullification of permits upon which the development was authorized would result in a substantial financial loss as a result of improvements to the land that were made within the immediately preceding five years in reliance upon the vested rights status previously granted. Any extensions allowed under this chapter must be received prior to the expiration of the permit. Upon termination of vested status, the issuance of new permits will require that the development authorized under the permit conform to current codes, rules, regulations even if demolition is necessary and infrastructure is in place.

(2)

After a hearing with notice to the vested rights holder, a vested rights determination or amendment pursuant to section 62-507 may be terminated upon a showing by the county of an imminent peril to public health, safety or general welfare of the residents of the county unknown at the time of approval.

(3)

A vested rights determination or amendment pursuant to section 62-507 may be set aside by the board upon petition of a person adversely affected by the determination and after a hearing at which a showing is made by clear and convincing evidence that the approval was issued based upon false, inaccurate or misleading evidence or information.

(Ord. No. 04-37, § 1, 8-24-04; Ord. No. 07-54, § 1, 10-23-07; Ord. No. 10-07, § 1, 3-9-10)

Editor's note

Ord. No. 04-37, § 1, adopted August 24, 2004, amended § 62-507 in its entirety to read as herein set out. Formerly, § 62-507 pertained to appeal procedure; presentation of claims of regulatory takings or abrogation of vested rights, and derived from the Code of 1979, § 14-65, Ord. No. 95-02, § 1A.—D., adopted January 26, 1995; Ord. No. 99-07, § 4, adopted January 28, 1999; Ord. No. 99-26, § 1, adopted April 8, 1999.