§ 106-46. Determination of vested rights.

(a)

General requirement. Any owner objecting to the proposed comprehensive rezoning on its property pursuant to subsection 106-43(d) on the grounds that it is entitled to a positive determination of vested rights shall submit to the growth planning director a written application for determination of vested rights no later than 120 days after notice of inconsistency has been sent to such owner under subsection 106-43(c). Property which is part of a unified plan of development shall be considered under a single consolidated application for determination of vested rights to the extent of the applicant's ownership therein. Failure of the owner to submit such application within the time provided shall be deemed a waiver of its rights to obtain a determination of vested rights and shall constitute an abandonment of any claim to vested rights and equitable estoppel for its property, the proposed development and existing zoning thereon. Judicial relief shall not be available unless administrative remedies are exhausted, including appeal to the board of county commissioners.

(b)

Pending applications and development orders. The county adopted its growth management plan on January 10, 1989. The growth management plan contains policies 3.1.K, 5.1 and 5.9 of the future land use element, as amended. All persons were duly given legal notice of the intent and mandate of the county to prepare and adopt this article which includes a process for determination of vested rights for unimproved property and a zoning reevaluation program. Consequently, no person may claim vested rights, or assert equitable estoppel, arising from any of the following which is inconsistent with the growth management plan and which has not resulted in a final development order with commencement of construction continuing in good faith:

(1)

Application for development order processed on or after the effective date of the ordinance from which this article was derived;

(2)

Development order rendered or issued on or after the effective date of the ordinance from which this article was derived;

(3)

Any expenditures or actions taken in reliance on any of the same;

nor does the county recognize any vested rights claims or equitable estoppel assertions except to the extent determined under the process established in this article for the determination of vested rights for inconsistent zoning on unimproved property. Any claims of vested rights, or any assertions of equitable estoppel, for zoning inconsistent with the growth management plan shall, at a minimum, exhaust all administrative remedies, including appeals, provided for in this article and the land development regulations prior to being ripe for judicial review.

(c)

Application. An application for determination of vested rights shall be submitted in the form established by the growth planning director. An application fee in an amount to be determined by the board of county commissioners shall accompany and be part of the application. The application shall, at a minimum, include:

(1)

Name, address, and telephone number of the owner and authorized applicant if other than the owner;

(2)

Street address, legal description, and acreage of the property; and

(3)

All factual information and knowledge reasonably available to the owner and applicant to address each of the criteria established in subsection (i) of this section.

(d)

Determination of completeness. After receipt of an application for determination of vested rights, the growth planning director shall determine whether the application submitted is complete. If he determines that the application is not complete, the growth planning director shall notify the applicant in writing of the deficiencies. The growth planning director shall take no further steps to process the application until the deficiencies have been remedied.

(e)

Review and recommendation by growth planning director. After receipt of a completed application for determination of vested rights, the growth planning director shall review and evaluate the application in light of all of the criteria in subsection (i) of this section. Based on the review and evaluation, the growth planning director shall consult with the county attorney and prepare a written recommendation to the hearing officer that the application should be denied, granted or granted with conditions by the hearing officer. Such recommendation shall include findings of fact for each of the criteria established in subsection (i) of this section to the extent that information is presented or obtained or inclusion is feasible or applicable.

(f)

Review and determination of vested rights determination by hearing officer. Upon receipt by the hearing officer of the application for determination of vested rights and the written recommendation of the growth planning director, the hearing officer shall hold a public hearing on the application. At the hearing, the hearing officer shall take evidence and sworn testimony in regard to the criteria set forth in subsection (i) of this section, and shall follow the rules of procedure set forth in F.S. § 120.57(1)(b), 4, 6, 7 and 8, F.S. § 120.58(1)(a), (d) and (f), and F.S. § 120.58(1)(b), only to the extent that the hearing officer is empowered to swear witnesses and take testimony under oath. The hearing officer shall follow the procedures established for administrative hearings in Rules 221-6.009, 6.017, 6.020, 6.022, 6.023, 6.024, 6.025, 6.027, and 6.031 (now Rule 60-Q), Florida Administrative Code, except as expressly set forth herein. The parties before the hearing officer shall include the county, the owner or applicant, and the public. Testimony shall be limited to matters directly relating to the standards set forth in subsection (i) of this section. The county attorney shall represent the county, shall attend the public hearing, and shall offer such evidence as is relevant to the proceedings. The owner of the property and its authorized agents may offer such evidence at the public hearing as is relevant to the proceedings and criteria. The order of presentation before the hearing officer at the public hearing shall be as follows:

(1)

The county's summary of the application, written recommendation, witnesses and other evidence;

(2)

Owner or applicant witnesses and evidence;

(3)

Public witnesses and evidence;

(4)

County rebuttal, if any; and

(5)

Applicant rebuttal, if any.

(g)

Issuance of vested rights determination by hearing officer. Within 15 working days after the completion of the public hearing under subsection (f) of this section, the hearing officer shall consider the application for determination of vested rights, the recommendation of the growth planning director, and the evidence and testimony presented at the public hearing, in light of all of the criteria set forth in subsection (i) of this section, and shall deny, grant, or grant with conditions the application for determination of vested rights for the property or properties at issue. The determination shall be in writing and shall include findings of fact for each of the applicable criteria established in subsection (i) of this section, conclusions of law for each of such criteria, and a determination denying, granting, or granting with conditions, in whole or in part, the vested rights of development on the property.

(h)

Appeal to board of county commissioners. Within 30 days after issuance of the hearing officer's written determination of vested rights, the county attorney, the growth planning director, or the owner or its authorized attorney or agent, or any other party to the hearing, may appeal the determination of vested rights of the hearing officer to the board of county commissioners. A fee for the application and processing of an owner-initiated appeal shall be established at a rate set by the board of county commissioners from time to time and shall be charged to and paid by the owner or its authorized agent. The board of county commissioners shall adopt the hearing officer's determination of vested rights, with or without modifications or conditions, or reject the hearing officer's determination of vested rights. The board of county commissioners shall not be authorized to modify or reject the hearing officer's determination of vested rights unless the board of county commissioners finds that the hearing officer's determination is not supported by substantial competent evidence in the record of the hearing officer's public hearing or that the hearing officer's determination of vested rights is contrary to the criteria established in subsection (i) of this section.

(i)

Criteria for vested rights. This section is intended to implement, supplement and not be inconsistent with, state case law and statutory law as they relate to the doctrine of vested rights and equitable estoppel as applied to a local government exercising its authority and powers in zoning and related matters. The criteria herein provided are intended to set forth factors that shall be considered in rendering a vested rights determination under this section. It is intended that each case be decided on a case by case factual analysis. A person shall be entitled to a positive determination of vested rights only if he demonstrates by substantial competent evidence all three of the following requirements of the three-part test: (1) Upon some act or omission of the county, (2) a property owner relying in good faith, (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 rights acquired. In determining whether the existing zoning districts on the subject property are vested under each of these three mandatory requirements of the three-part test, the following shall be considered for each part:

(1)

Part one: Upon some act or omission of the county.

a.

The following shall be considered as acts of the county for the purpose of part one of the three-part test:

1.

A valid, unexpired governmental act of the county in the form of a final development order which authorizes the specific development for which a determination is sought.

2.

A valid, unexpired governmental act of the county in the form of a final subdivision plat approved by the county; or a final site development plan, final subdivision master plan or planned unit development master plan approved by the county after January 1, 1988, but prior to May 1, 1990.

3.

Specific, authorized written statements or representations, including agreements and formal actions, of county personnel commonly relied upon and on which the property owner is reasonably justified in relying upon for the specific written statement or representation.

b.

Although any of the following, in and of itself, may not be sufficient to be deemed an "act or omission," it may be considered in conjunction with other "acts or omissions" to determine whether there exists an "act or omission" of the county for the purpose of part one of the three-part test:

1.

Existing zoning (anything to the contrary notwithstanding, existing zoning, in and of itself, shall not be sufficient to be deemed an "act or omission").

2.

Omissions which only include negligent or culpable omissions where the county failed to act and was under a legal duty to do so.

3.

A valid, unexpired development order.

(2)

Part two: A property owner relying in good faith.

a.

In determining whether reliance was in good faith, the following shall be considered for the purpose of part two of the three-part test:

1.

Whether the expenditures or obligations were clearly and directly connected to the authorizing act or omission of the county relied upon.

2.

Whether the expenditures or obligations were made or incurred subsequent to the act or omission the county relied upon.

3.

Whether the expenditures or obligations were made or incurred in a timely fashion, that is, within a reasonable period of time after the act or omission of the county relied upon.

b.

Acts by the person prior to the effective date of the ordinance from which this article was derived shall be presumed to have been in good faith; however, this presumption shall be rebuttable by evidence of any matter described in subsections c.1. or c.2. of this subsection, or intentional lack of good faith.

c.

For the purpose of part two of the three-part test, expenditures or obligations shall be presumed not to have been made or incurred in good faith, unless rebutted by substantial competent evidence, if they were made or incurred:

1.

When a person has misled the county.

2.

When the act of the county on which a person is relying has been invalidated or has expired and the person knew or should have known of such invalidity or expiration.

3.

While the act of the county upon which a person is relying was being contested in the courts, or this hearing process, or any other mediation or hearing process, except any mediation or hearing process initiated prior to the effective date of the ordinance from which this article was derived.

(3)

Part three: Has made such a substantial change in position or incurred such extensive obligations and expenses relating to the property that it would be highly inequitable and unjust to destroy the rights acquired.

a.

For the purpose of part three of the three-part test, the following shall be considered in determining whether a substantial change in position has been made or extensive obligations and expenses have been incurred relating to the property such that it would be highly inequitable and unjust to destroy the rights acquired:

1.

The substantial change in position made or the extensive obligations and expenses incurred shall be clearly and directly connected to the authorizing act or omission of the county and shall be made or incurred subsequent to the act of the county relied upon.

2.

Whether actual construction has commenced and whether the extensive obligations or expenditures made or incurred are unique to any development previously approved and not reasonably useable for a development consistent with and permitted by the growth management plan.

3.

In balancing the competing interests, whether the demonstrated injuries, if any, suffered by the property owner in not allowing the development to proceed outweigh the public cost and public interest of allowing development to proceed.

4.

Whether the property owner has incurred extensive obligations and expenses for hard costs of development.

5.

Whether the property owner has made infrastructure improvements within or to the subject property pursuant to a written agreement or development order with the county.

6.

Whether the property owner has constructed oversized infrastructure improvements within or to the property to meet the needs of other properties.

7.

Whether the county has required the person to oversize infrastructure improvements within or to the property to meet the needs of other properties and the county is unwilling to release the person from that obligation.

8.

Whether a person has incurred extensive obligations and expenses for the following development-related matters that are made or incurred subsequent to the final act or omission relied upon.

i.

Engineering and architectural fees.

ii.

Planning fees.

iii.

Local, state and federal permit fees.

iv.

Attorneys' fees.

v.

Scientific or biological studies, tests or reports.

b.

For the purpose of part three of the three-part test, all facts and circumstances of each case, on a case by case basis, shall be considered in determining whether a change in position is substantial or whether obligations and expenses incurred are extensive.

If the record indicates that the applicant failed to demonstrate by substantial competent evidence any one of the required parts of the three-part vested rights test set forth above, then it shall not be inequitable to deny the applicant vested rights, in whole or in part, for its inconsistent zoning on unimproved property.

(j)

Limitation on determinations of vested rights.

(1)

A determination of vested rights which grants an application for determination of vested rights shall confirm such vested rights only to the extent expressly contained in such determination. Except as expressly stated herein, nothing in this article shall relieve the property owner from complying with the provisions of article III of this chapter for development on its property.

(2)

A determination of vested rights which grants an application for determination of vested rights shall expire and be null and void unless construction is commenced pursuant to a final development order, final subdivision plat, or final site development plan, within two years after the issuance of the determination of vested rights under this section, or unless substantial permanent buildings have been, or are being constructed or installed pursuant to a valid, unexpired, final development order of the county within two years after issuance of the determination of vested rights under this section, and such development pursuant to a final development order, final subdivision plat, final site development plan, final subdivision master plan, or planned unit development master plan is continuing in good faith. The aforementioned two-year time limitation on the determination of vested rights shall be stayed during any time periods within which commencement of construction pursuant to a final development order, final subdivision plat, or final site development plan is prohibited or deferred by the county solely as a result of lack of adequate public facilities to serve the property, pursuant to article III of this chapter.

(3)

A determination of vested rights shall apply to the land and is therefore transferrable from owner to owner of the land subject to the determination of vested rights.

(4)

Anything in this article to the contrary notwithstanding, a determination of vested rights may be revoked upon a showing by the county of a peril to public health, safety or general welfare of the residents of the county unknown at the time of approval.

(Ord. No. 90-23, § 11; Ord. No. 91-41, § 3)