9.02.01 - Applications for Vested Rights Determinations

A.

Applications for a determination of claimed vested rights must be submitted along with the initially required application fee in the form established by the County and must be sworn to or comply with F.S. § 92.525, for declarations made under penalty of perjury. In order to be considered timely, all applications must be filed within one year of the effective date of this Code, or of any amendment or revision to the Code, against which the landowner claims to be vested. Failure to timely file such application within the one-year period will act as a landowner's waiver of the claimed rights and bar all claims for vested rights or equitable estoppel for the landowner's property. Applications must include:

1.

Name, address, and telephone number of the landowner, and of any authorized agent(s);

2.

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

3.

All facts, documents, records, attachments, appendices, exhibits, or other information reasonably available to the landowner through diligent research which are considered by the landowner to be relevant and which would tend to establish the criteria for a vested rights determination set forth in section 9.02.05. The application should include any information the applicant considers necessary and that would substantiate those facts supporting the claim. The guide for inclusion of information should be whether the information would constitute competent, substantial evidence in a quasi-judicial or judicial proceeding;

4.

All legal arguments in support of the claims alleged;

5.

Any relief or remedies proposed to resolve the claims alleged; and

6.

The signature of the landowner or any attorney for the landowner.

Signatures affixed to an application will constitute certification that the person signing has read the document and that to the best of the person's knowledge it is supported by good grounds and that it has not been submitted solely for purposes of delay.

B.

Applicants may include such information under section 9.02.10. B.3.a.—g., as they consider necessary to establish their claims.

C.

A landowner and any attorney for the landowner has a continuing obligation to amend or correct any document submitted with the application which is incorrect because of changed circumstances or which was found to have been incorrect.

(Ord. No. 04-72, § 3.X)

9.02.02 - Determination of Completeness

After receipt of a fully paid application for a determination of vested rights, the county manager will determine if the information submitted with the application is complete. If the application is determined to not be complete, the county manager will provide notice to the applicant in writing of all deficiencies found within five (5) days. The county manager will take no further steps to process or review the application until all deficiencies have been adequately remedied or the county manager is notified by the landowner that no further information will be provided.

(Ord. No. 04-72, § 3.X)

9.02.03 - Review of Application by County Manager and County Attorney; Determination or Recommendation

Completed applications for determinations of vested rights, i.e., those deemed sufficient for review, will be reviewed by the county manager and the county attorney under the criteria in section 9.02.05., within forty-five (45) days. Based on their review, the county manager and the county attorney will thereafter within ten (10) days either: a) enter into a written stipulated determination of vested rights with the owner, or b) make a written recommendation to a hearing officer for a determination that the application should be denied, granted or granted with conditions.

A.

If the county manager and the county attorney agree that the application for a determination of vested rights so clearly demonstrates that the requested relief should be granted or granted with conditions acceptable to the landowner, then they are authorized to enter into a stipulated determination of vested rights with the landowner on behalf of the County. The county manager's and the county attorney's written determination must include: a) their findings of fact based on the criteria established in section 9.02.05.; b) their conclusions of law for such criteria; c) their findings of consistency with the growth management plan and the Code, as applicable; and d) the specific relief to be afforded by the determination, which must be signed by the county manager and the county attorney, as well as the landowner.

B.

If the county manager and the county attorney do not agree after their review that the application for determination of vested rights so clearly demonstrates that the requested relief should be granted or granted with conditions acceptable to the landowner, then they will prepare a report for consideration by a qualified hearing officer which recommends that the requested relief should be granted, granted with conditions, or denied. The written recommendation to the hearing officer must include: a) their findings of fact based on the criteria established in section 9.02.05.; b) their conclusions of law for such criteria; c) their findings of consistency or inconsistency with the growth management plan, as applicable; and d) the specific relief to be afforded, if any, in whole or in part, by the determination. The procedures to be followed for qualification and selection of the hearing officer are those set forth in section 9.02.04. The procedures to be followed for the hearing officer's review of the claim, public hearing, and issuance of a written determination are set forth below in sections 9.02.04. and 9.02.06

(Ord. No. 04-72, § 3.X)

9.02.04 - Hearing Officer Review and Vested Rights Determination

A.

In the event that all of a landowner's claims are not fully resolved by the process under section 9.02.03., the county manager will solicit for a hearing officer who must meet the following minimum qualifications: a) be an attorney admitted to practice before the Supreme Court of the State of Florida, b) have demonstrated knowledge of administrative, environmental, and land use law and procedure; and c) agree to hold no other appointive or elective county public office or position during the period retained. A qualified hearing officer selected by the county manager and county attorney will be retained immediately upon the landowner's payment of any additional fees required for a hearing officer's determination of vested rights. Once retained, the application, written recommendation of the county manager and county attorney, and all supporting documentation, collectively considered to be the then existing official record of the claim, will be provided to the hearing officer for review. Within fifteen (15) days of notice of retaining a qualified hearing officer, the claimant must provide the hearing officer and all other parties a list of the names and addresses of any witnesses which the claimant intends to present in support of its claim and a summary of the testimony of each witness. In no event, however, will the requisite public hearing be scheduled or noticed until the list and summary are properly provided.

B.

At any time after thirty (30) days from receipt of the official record, the hearing officer is to conduct a properly noticed public hearing. The hearing will follow such rules of procedure for quasi-judicial, civil proceedings as the hearing officer may consider are reasonably required to afford all parties procedural due process and as follows. The parties entitled to appear before the hearing officer are the county, the landowner, and those members of the public who have timely notified the county manager and hearing officer of their intention to be considered as affected persons under section 9.02.04 C., below. In the event that any affected person's claimed status as a party is challenged by another party, the hearing officer will determine whether that person is entitled to appear as an affected person under the traditional notions of standing set forth in Florida jurisprudence. The order of presentation before the hearing officer will be: a) the landowner, b) the county, and c) any affected person(s). Although the public is invited to attend the hearing, members of the general public may not participate unless testifying as a party witness under one of the three categories above.

C.

Affected persons intending to participate as a party in any hearings held as part of the vested rights determination process must submit written comments and pertinent factual information and data to the county manager for inclusion in the official record within fifteen (15) days of the landowner's mailing of notice to all persons as set forth in section 9.02.06.A. The pertinent factual information and data will be reviewed and considered by the county manager and county attorney, and when applicable, will be submitted to the hearing officer as an attachment to the county attorney's and county manager's recommendation to the hearing officer and become part of the official record. The names of affected persons intending to appear as a party witness, along with a written summary of their testimony, must be submitted to the hearing officer no later than ten (10) days prior to the advertised date of the hearing officer's public hearing.

(Ord. No. 04-72, § 3.X)

9.02.05 - Criteria for Vested Rights Determinations

A.

This section is intended to establish criteria for vested rights determinations that strictly adhere to, and implement, existing Florida statutory and case law as they relate to the doctrine of vested rights and equitable estoppel. Each determination is to be made on a case-by-case basis in light of these criteria and the specific factual and legal analysis of that claim. Landowner's claims should not be afforded the relief or remedy sought unless the landowner demonstrates by substantial competent evidence that it's entitled to complete it's development without regard to the otherwise applicable provision(s) of this Code based on either: a) meeting the provisions of F.S. § 163.3167(8); or b) that: 1) upon some act (such as enacting the challenged provision of this Code) or omission of the county, 2) the landowner 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 to apply the challenged provision.

B.

The provisions of Code of Laws § 106-46 (i) Criteria for Vested Rights, (2) & (3), may be used as an additional guide for consideration of the second and third criteria in A., above.

(Ord. No. 04-72, § 3.X)

9.02.06 - Required Notices for Vested Rights Determination Process, Including Public Hearings

A.

Within fifteen (15) days of the date of receipt by the county of a completed application for a vested rights determination, the landowner must provide notice of the submission of the application by: a) prominently posting on the property for which the vested rights determination is sought a sign advising of the substance of the claim of vested rights and otherwise complying with section 10.03.05. B. 1. as to timing and otherwise, a. or b., only, and B. 2. through 4., as applicable, and b) mailing notice to all property owners within 300 feet of the property lines of the subject property. The mailed notice must briefly state the nature of the claim and must be made via certified mail, return receipt requested, sent at the landowner's expense.

B.

Public notice for vested rights determination hearings held pursuant to section 9.02.04. or section 9.02.08. must be provided by publication at least one time in a newspaper of general circulation at least fifteen (15) days in advance of any public hearing stating the time, place, purpose of such hearing, including a brief statement of the nature of the claim.

C.

For those claims not resolved under section 9.02.03., the landowner must additionally provide the type of mailed notice described in A., above to all persons who have notified the county manager that they should be considered as an affected person at least twenty (20) days prior to the hearing officer's public hearing.

D.

For those claims not resolved under section 9.02.08, the appealing party must additionally: a) provide the type of mailed notice described in A., above to all other parties at least fifteen (15) days prior to the public hearing, and b) publish the notice for the public hearing required under B., above.

(Ord. No. 04-72, § 3.X)

9.02.07 - Issuance of a Vested Rights Determination by Hearing Officer

Within fifteen (15) days after the completion of the hearing officer's public hearing, the hearing officer will render a determination denying, granting, or granting with conditions, all vested rights claimed by the landowner. The determination must be based upon the hearing officer's review and consideration of the official record which will include the application for determination of vested rights, the recommendation of the county manager and the county attorney, and the evidence and testimony presented at the public hearing by all parties. The determination must be in writing and specifically set forth enumerated: a) findings of fact, and b) conclusions of law for each criterion of section 9.02.05., as applicable to each claim. The determination must also state the specific relief or remedy afforded the landowner, if any, and detail any conditions which the landowner must comply with to obtain such relief.

(Ord. No. 04-72, § 3.X)

9.02.08 - Appeal of Hearing Officer's Vested Rights Determination

Within 30 days after the hearing officer's written determination of vested rights being rendered, either the county or the landowner may appeal the determination to the board of county commissioners. Any additional fee for a landowner-initiated appeal must accompany the appeal. The board of county commissioners may: a) affirm the hearing officer's determination of vested rights, with or without modifications or conditions, or b) reject the hearing officer's determination, except that the board may not modify the determination or impose conditions, or reject the hearing officer's determination unless the board expressly finds that one or more of the hearing officer's findings of fact or conclusions of law is not supported by competent substantial evidence in the official record, or that the hearing officer's determination otherwise specifically failed to properly apply one or more of the criterion in section 9.02.05. Because the law in the area of vested rights and equitable estoppel is constantly changing in both substance and interpretation, the board should be guided by advice from the office of the county attorney regarding interpretations of appropriate considerations in its deliberations.

(Ord. No. 04-72, § 3.X)

9.02.09 - Expiration of Vested Rights Determinations

Any relief granted by a vested rights determination will be presumed abandoned and expire if not utilized for its proper purpose within two (2) years from the date it was granted. Thus, all determinations of vested rights which are granted, with or without conditions, expire and become null and void two (2) years from the date finally issued, i.e., the last of either: a) the latest date signed as a stipulated agreement, b) the date rendered by a hearing officer, or c) otherwise finally determined following any appeal; unless: 1) any conditions imposed are complied with and construction authorized by the determination is commenced pursuant to an approved final development order or permit, and 2) construction continues in good faith under then applicable regulations for development. The two (2) year time limitation to commence and continue construction will only be stayed for any time period during which construction is prohibited, deferred, or delayed by the county due to inadequate public facilities, as otherwise provided for by this Code.

(Ord. No. 04-72, § 3.X)

9.02.10 - Process for Review and Remedy of Taking Claims

A.

Scope. This section applies to:

1.

A landowner's claim which would otherwise arise in a court of competent jurisdiction as a taking of property without just compensation under any law applicable to the county and that arises from:

a.

The denial of property or development rights sought as part of a development permit or development order, or

b.

The application of any other provision of the county's comprehensive plan, its implementing land development regulations as stated in this Code, or other ordinances.

2.

Persons denied a claimed remedy sought as part of a vested rights determination under sections 9.02.00.—9.02.09., of this Code; and

3.

Any aggrieved or adversely affected party meeting the standard for "standing" defined in F.S. § 163.3215(2), and alleging that the grant or issuance to another person of a development order or development permit by the county constitutes a taking of his property.

4.

Notwithstanding the provisions set forth above, this section does not apply to takings claims arising as part of a condemnation or eminent domain action to which the county is, or may be, a party.

B.

Administrative procedures for filing and documentation of takings claims.

1.

All takings claims must be filed with the county manager and be accompanied by such fee as may be required.

2.

Any person filing a takings claim must affirmatively demonstrate the validity of the claim alleged by submitting a sworn statement setting forth the facts upon which the takings claim is based. The sworn statement should include any information the applicant considers necessary. As such, a statement may contain attachments, appendices or exhibits that substantiate those facts supporting the claim. The guide for inclusion of information should be whether the information would constitute competent, substantial evidence in a quasi-judicial or judicial proceeding.

3.

In addition to a demonstration of a potential taking claim, the applicant's evidence should also provide that information necessary to fashion a remedy, should a potential taking claim be found to exist. As part of a typical claim package, the sworn statement required by this subsection should support the claim for a remedy by including any additional affidavits, copies of drawings, contracts, recordings, reports, letters, appraisals, or any other form of documentation or information that may apply, including, but not limited to:

a.

The transcript or record of any previous hearing where the claim is alleged to have arisen,

b.

Evidence of the expenditure of funds for land, the acquisition of which provides the basis of the taking claim,

c.

Evidence of expenditures of funds for planning, engineering, environmental, and other consultants for site plan preparation, site improvement or other preparation, or construction,

d.

Evidence of expenditures for construction of actual buildings in accordance with an existing or prior development order or development permit issued by the county,

e.

Any relevant donations or dedications of real property or any other property interest made to the county for the following purposes:

i.

Roads or other transportation or public utility facilities,

ii.

Access (ingress/egress) or rights-of-way,

iii.

Drainage easements,

iv.

Parks or recreation/open space,

v.

Retention/detention areas,

vi.

Preservation or conservation areas, or

vii.

Any other purpose consistent with the provision of services for any element of the county's comprehensive plan; which are either on- or off-site with respect to the property involved in the claim.

f.

Evidence of costs of construction of any roads, sidewalks, stormwater detention/retention or drainage facilities, sewer or water facilities, parks, etc., which would be either on- or off-site, and part of a plan permitting development on the subject property, or

g.

Other development orders or development permits issued by the county with respect to the property involved in the takings claim, and any related federal, state or regional permits.

4.

As part of a sworn statement, the claimant is required to provide a list of the names and addresses of any witnesses which the claimant will present in support of the claim and a summary of the testimony of each witness.

5.

Additionally, the claimant should consider submitting as part of its sworn statement information which:

a.

Demonstrates that the claimant has acted in good faith and without knowledge that changes to applicable ordinances, resolutions, or regulations might effect his development expectations. In establishing "good faith," the claimant should consider submitting information which affirmatively states that the claimant:

i.

Has not waived, abandoned, or substantially deviated from related prior county development approvals;

ii.

Has not, by act or failure to act, consented or assented to changes in related prior county development approvals; and

iii.

Has, at all times relevant, conformed with the applicable laws, rules, and regulations of the state and the county.

b.

If applicable, details the specific governmental act, ordinance, resolution, regulation or comprehensive plan provision that the claimant believes gave rise to the takings claim.

6.

The signature of the claimant, or any attorney for the claimant, upon any document submitted as part of a sworn statement will constitute certification that the person signing has read the document and that to the best of the person's knowledge it is supported by good grounds and that it has not been submitted solely for purposes of delay. Further, the claimant and any attorney for the claimant will have a continuing obligation to amend or correct any document submitted which is incorrect because of changed circumstances or was found to have been incorrect.

7.

If the board of county commissioners makes a determination and finding that the sworn statement submitted as part of a taking claim is:

a.

Based on facts that the claimant or any attorney for the claimant knew or should have known was not correct or true; or

b.

Frivolous or filed solely for the purposes of delay;

then the board of county commissioners, in addition to the penalties set forth in section 10.07.00. A.2.e., may pursue any remedy or impose any penalty provided for by law or ordinance.

C.

Review, hearing and standards for takings claims.

1.

Within five working days of filing a sworn statement (and any accompanying information) as part of a takings claim, the county manager will determine whether the statement received is complete. If the statement is deficient, then the claimant will be notified, in writing, of the deficiencies.

2.

Once a statement is complete, or the claimant has informed the county manager that no further information is forthcoming, the county manager will timely review the application, provide requisite public notice consistent with section 9.02.06 B, and schedule a properly noticed public hearing before the board of county commissioners on the takings claim.

3.

At the scheduled public hearing, sworn testimony and relevant evidence which meets the criteria of subsection B. above should be offered into the record to support the claimant's position. The county manager and staff, and county attorney personnel may offer testimony and evidence, or opinions as may be relevant to the hearing.

4.

No later than 30 days after the board of county commissioners closes the public hearing, the board will make and report a conclusive, final decision based upon the record presented. Nothing in this subsection will prevent the board from deciding to continue the hearing to a time-, date-, and place-certain to give staff the opportunity to prepare alternatives, in consultation with the applicant, or to give staff or the applicant the opportunity to prepare responses to questions which the board may have regarding information presented at the hearing.

5.

Because the law in the area of takings is constantly changing in both substance and interpretation, the board of county commissioners should be guided by advice from the office of the county attorney regarding interpretations of appropriate considerations in its deliberations. In evaluating whether a valid taking claim is presented by the record, and what the measure of relief to be provided to the claimant should be, if any, the following factors will be taken into consideration:

a.

Whether and to what degree the challenged regulation or combination of regulations has resulted in any physical invasion of the claimant's property by the county or others;

b.

Whether the challenged regulation, or combination of regulations, has resulted in a denial of all beneficial use of the claimant's property by the county and, if so, whether the logically antecedent inquiry into the nature of the landowner's estate shows that the prescribed use interests were not part of his title to begin with;

c.

Whether and to what degree the claimant's expectations of use were investment-backed;

d.

Whether and to what degree the claimant's expectations of use were reasonable in light of the following circumstances as they may apply:

i.

The logically antecedent inquiry into the nature of the landowner's estate shows that the prescribed use interests were not part of his title to begin with;

ii.

The existing land use and zoning classification of the subject and nearby properties, as may be relevant;

iii.

The development history of the subject property and nearby properties; and

iv.

The suitability of the subject property for the intended or challenged development or use.

e.

Whether and to what degree the intended or challenged development or use has or would cause any diminution in value of the subject properties, or any relevant properties arising from section 9.02.10 A.3.;

f.

Whether and to what degree any such diminution of property values has promoted the public health, safety, morals, aesthetics, or general welfare, and was consistent with the county's comprehensive plan; and

g.

To what extent the public would gain from the intended or challenged development or use compared to any resulting hardship upon the claimant alone.

6.

Any relief to be provided a claimant will be limited to the minimum necessary to provide a reasonable, beneficial use of the subject property and may be in the form of alternative uses of additional development intensity which may be severed and transferred, or other such non-monetary relief as is deemed appropriate by the board of county commissioners. Any relief granted will be presumed abandoned and expire if not utilized for its proper purpose within one year from the date it was granted. Subsequent applications under this section may review the expired decision for possible reinstatement, with or without modification as deemed necessary under then existing conditions.

D.

Appeal of takings claim. Any claimant aggrieved by the final decision of the board of county commissioners may seek judicial review of the board's decision by timely filing an action in a court of competent jurisdiction.

(Ord. No. 04-72, § 3.X)