98-3106 ORD
ORDINANCE NO.
98-3106
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AMENDING COMPREHENSIVE ZONING
ORDINANCE NO. 89-2665 BY AMENDING SECTION 14, ENTITLED
"CHANGES AND AMENDMENTS" BY AMENDING SUBSECTION 14-7,
ENTITLED "PROPOSED ZONING ORDINANCE AMENDMENTS -- ZONING-
IN-PROGRESS MORATORIA ON PERMITS AND APPROVALS" BY AMEND-
ING SUBSECTION 14-7(C), WHICH EXEMPTS PROJECTS FROM ZONING-
IN-PROGRESS MORATORIA, BY MODIFYING THE REQUIREMENTS FOR
ACHIEVING AN EXEMPTION FROM ZONING-IN-PROGRESS; AND
AMENDING SUBSECTION 14-8, ENTITLED "PROPOSED COMPREHENSIVE
PLAN AMENDMENTS -- PLANNING-IN-PROGRESS MORATORIA ON
PERMITS AND APPROVALS" BY AMENDING SUBSECTION 14-8(C), WHICH
EXEMPTS PROJECTS FROM PLANNING-IN-PROGRESS MORATORIA, BY
MODIFYING THE REQUIREMENTS FOR ACHIEVING AN EXEMPTION
FROM PLANNING-IN-PROGRESS; ADDRESSING THE APPLICATION OF
THE CURRENT ZONING-IN-PROGRESS PROVISIONS TO THIS ORDI-
NANCE; PROVIDING FOR INCLUSION IN THE ZONING ORDINANCE,
REPEALER, SEVERABILITY AND AN EFFECTIVE DATE.
WHEREAS, the City Commission wishes to amend Comprehensive Zoning Ordinance No.
89-2665 to revise the exemptions to the zoning-in-progress and planning-in-progress moratoria to
insure that amendments to the City's Zoning Ordinance and Comprehensive Plan are applicable to
and enforceable against all new development prior to the issuance of a building permit for said
development.
NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMIS-
SION OF THE CITY OF MIAMI BEACH, FLORIDA:
SECTION 1. AMENDMENTS TO SECTION 14. ENTITLED "CHANGES AND AMEND-
MENTS" .
A. That Subsection 14-7, entitled "Proposed Zoning Ordinance Amendments -- Zoning-
In-Progress Moratoria on Permits and Approvals" of Section 14 of Zoning Ordinance 89-2665 of
the City of Miami Beach, Florida, is hereby amended as follows:
14-7 PROPOSED ZONING ORDINANCE AMENDMENTS - ZONING-IN -PROGRESS
MORA TORIA ON PERMITS AND APPROVALS
A. Whenever the Planning Board has voted to recommend in favor of a proposed
amendment to this Ordinance, the City Manager shall issue an administrative
order setting forth the proposed amendment and establishing a moratorium
during which any City employee, board or department is prohibited from
granting an approval or permit which would be prohibited, or prohibited
without variances, in the event that the proposed amendment is enacted by
the City Commission.
B. Any administrative order issued pursuant to the above shall be complied with
by all City employees, boards and departments and shall be effective until the
proposed amendment is enacted or rejected by the City Commission.
However, in the event that the City Commission fails to enact or reject the
amendment within 90 days after a favorable recommendation by the Planning
Board, said administrative order shall be deemed expired and shall be without
further effect.
C. Notwithstanding subparagraphs A and B above, no such administrative order
shall affect any project which has a validly issued and active Full Building
Permit building f)ermit, variance approval, or Design Review approval or htl3
a eomf)letcd ftl"f)lieation meeting all submission. requirements submitted fOf
De3ign Revie'vv ftl"proval, DOMd of Adjmtment YMiftIlee tlppro val, or building
permit fll"proyal prior to a vote by the Planning Board in favor of the
proposed zoning amendment.
D. Subparagraphs A and B above, shall not apply to proposed amendments to
Section 19 of this Ordinance which would designate specific properties or
districts as historic. The moratorium regulations applicable to such proposed
amendments are set forth in Subsection 19-5 of this Ordinance.
B. That Subsection 14-8, entitled "Proposed Comprehensive Plan Amendments -
Planning-In-Progress Moratoria on Permits and Approvals" of Section 14 of Zoning Ordinance 89-
2665 of the City of Miami Beach, Florida, is hereby amended as follows:
14-8 PROPOSED COMPREHENSIVE PLAN AMENDMENTS - PLANNING-IN-
PROGRESS MORATORIA ON PERMITS AND APPROVALS
A. Whenever the Planning Board has voted to recommend in favor of a proposed
amendment to the City's Comprehensive Plan the City Manager shall issue
an administrative order setting forth the proposed amendment and establish-
ing a moratorium during which any City employee, board or department is
prohibited from granting an approval or permit which would be prohibited,
or prohibited without variances, in the event that the proposed amendment is
enacted by the City Commission.
B. Any administrative order issued pursuant to the above shall be complied with
by all City employees, boards and departments and shall be effective until the
proposed amendment is enacted or rejected by the City Commission.
However, in the event that the City Commission fails to either adopt a
resolution providing for transmittal of the proposed amendment to the
2
Department of Community Affairs or to reject the amendment within 90 days
after a favorable recommendation by the Planning Board, or fails to enact or
reject the amendment within 120 days after receiving comments on the
transmitted proposed amendment from the Department of Community
Affairs, said administrative order shall be deemed expired and shall be
without further effect.
C. Notwithstanding subparagraphs A and B above, no such administrative order
shall affect any project which has a validly issued and active Full Building
Permit building pe:fffiit, variance approval, or Design Review approval Of fla3
a compktcd ttJ"plie:ation meeting all 3ubmi33ion require:me:n-t3 3ubmitted for
De:3ign Rcvie:'vv' ttJ"Pro'v'al, Board of Adjmtmcnt vftfianee ttJ"Pro'v'al, or building
permit approval prior to a vote by the Planning Board in favor of the
proposed zoning amendment to the Comprehensive Plan.
SECTION 2. APPLICATION OF ZONING-IN-PROGRESS TO THIS AMENDMENT.
For purposes of enforcement of the zoning-in-progress provisions contained within the City
of Miami Beach Zoning Ordinance No. 89-2665 (i.e., Subsection 14-7), modified in accordance with
the terms of this Ordinance, it is the intention of the City Commission, and it is hereby ordained, that
a favorable recommendation by the Planning Board with respect to the adoption of this Ordinance
shall not result in the issuance of an administrative order and the establishment of a moratorium.
Notwithstanding the foregoing, this Ordinance shall have full force and effect as of the effective date
as specified below.
SECTION 3. INCLUSION IN ZONING ORDINANCE NO. 89-2665.
It is the intention ofthe City Commission, and it is hereby ordained that the provisions ofthis
ordinance shall become and be made part of the City of Miami Beach Zoning Ordinance No. 89-
2665 as amended; that the sections of this ordinance may be renumbered or relettered to accomplish
such intention; and that the word "ordinance" may be changed to "section" or other appropriate
word.
SECTION 4. REPEALER.
That all Ordinances or parts of Ordinances in conflict herewith be and the same are hereby
repealed.
SECTION 5. SEVERABILITY.
If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder
shall not be affected by such invalidity.
3
SECTION 6. EFFECTIVE DATE.
This Ordinance shall take effect on the 17th day of January
PASSED and ADOPTED this 7th day of January
ATTEST:
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CITY CLERK
F:\PLAN\$ALL\DRAFT _ OR\@CITYCOM\VESTING2.oRD
1st reading 12/7/97
2nd reading 1/7/98
APPROVED AS TO
FORM & lANGUAGE
& FOR EXECUTION
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-
MAYOR
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CITY OF MIAMI BEACH
MEMORANDUM
DATE: DECEMBER 29,1997
TO:
MAYOR NEISEN KASDIN
MEMBERS OF THE CITY COMMISSION
CITY MANAGER SERGIO RODRIGUEZ
MURRAYH.DUBBIN AoA~
CITY ATTORNEY 'VOl
RAULJ.AGUILA~~ C) (J ;(----
FIRST ASSISTANT CITY A T1~EY
VESTED RIGHTS ANALYSIS
FROM:
AND
SUBJECT:
At its regular meeting on December 17, 1997, the Mayor and City Commission approved on
first reading an ordinance amending Section 14 (entitled, "Changes and Amendments") of the City's
Comprehensive Zoning Ordinance 89-2665 to revise the exemptions to the zoning-in-progress and
planning-in-progress moratoria, insuring that amendments to the City's Zoning Ordinance and
Comprehensive Plan are applicable and enforceable against all new development prior to the
issuance of a building permit for said development. In particular, the ordinance, as amended,
redefines the point ofv~sting for a proposed development as that which has received a validly issued
and active Full Building Permit, variance approval, or Design Review approval prior to a vote by
the Planning Board in favor of a proposed zoning amendment. Concurrent with the adoption of the
amended ordinance on first reading, this office was directed to research the law relative to vested
rights, independent and separate from the City's existing law, as set forth in Section 14 of Zoning
Ordinance No. 89-2665, which vests rights at the time a completed application has been submitted
for Design Review approval, Board of Adjustment variance approval, or building permit approval.
Vested rights, or equitable estoppel, is a well established component of Florida land use law
which protects property owners' development rights that were perfected prior to enactment or
amendment of current regulations. A successful vested rights defense against a local government
exercising its zoning power requires an owner to show by a preponderance of the evidence that he
has (1) relied in good faith; (2) upon some act or omission of the government; and (3) has made
such substantial change in position or has incurred such extensive obligations and expenses that it
would be highly inequitable and unjust to destroy the rights he has acquired. See Hollywood Beach
Hotel Co. v. City of Hollywood, 329 So.2d 10,15-16 (Fla. 1976); Town of Largo v. Imperial Homes
Co., 309 So.2d 571,572-73 (Fla. 2d DCA 1975); Board of County Comm'rs of Metro Dade County
Vested Rights Analysis
December 29, 1997
Page 2
v. Lutz, 314 So.2d 815, 816 (Fla. 3d DCA 1975); City of Lauderdale Lakes v. Com, 427 So.2d 239,
243 (Fla. 4th DCA 1983); Calusa Golf. Inc. v. Dade County, 426 So.2d 1165,1167 (Fla. 3d DCA
1983); and Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla. 3d DCA 1963).
The doctrines of equitable estoppel and vested rights are used interchangeably in Florida;
however, the defense of estoppel is derived from equity while the defense of vested rights reflects
legal principles derived from statutory or case law. Estoppel focuses upon whether allowing the
government to repudiate its prior conduct would be equitable. The doctrine cannot be applied
mechanically and its applicability can only be determined by the court after consideration of all
relevant circumstances; i.e. it is fact specific and applied on a case by case basis. Vested rights
focuses upon whether an owner has acquired real property rights which cannot be taken away by
governmental regulation. It is a statement of a precise point in time when the property owner is
deemed in law to have acquired a property right entitling him to governmental approval of his
proposed development project.
GOOD FAITH RELIANCE UPON ACT OR OMISSION OF GOVERNMENT
The first element of the doctrine of vested rights requires that a party seeking the remedy
must rely in good faith on official government action or on an omission. The "governmental act"
is usually reflected in an issued permit to commence development. It was generally considered that
until a building permit was obtained, there could be no claim for equitable estoppel; however, as
there are usually an entire range of development approvals that a property owner must obtain in order
to bring a project to completion, there is currently no "black and white" test in making such
determination.
Florida courts have upheld the right of a property owner to rely on the following
governmental acts:
(1) A valid zoning ordinance (coupled with financial expenditures) estopped
citizens referendum rezoning development corporation's property. Andover
Development Corp. v. City of New Smyrna Beach, 328 So.2d 231 (Fla. 1 st
DCA 1976);
(2) Issuance of a conditional use permit (coupled with extensive financial obligations
and expenses developer incurred) estopped city from denying building permit. City
of North Miami v. Margulies, 289 So.2d 424 (Fla. 3d DCA 1974);
(3) Submittal of plans and receipt of building permit by oil companies to construct
service stations before land purchases. Texas Co. v. Town of Miami Springs, 44
So.2d 808 (Fla. 1950);
Vested Rights Analysis
December 29, 1997
Page 3
(4) Continuously issued permit for unrestricted construction over period of eighteen
years and county's knowledge of expenditures on developed and undeveloped
properties established developer's prospective right to complete second phase of
project. Equity Resources. Inc. v. County of Leon, 643 So.2d 1112 (Fla. 1st DCA
1994);
(5) Where it had approved preliminary plat (and in reliance thereon property owner made
substantial expenditures to construct infrastructure), county estopped from denying
final plat approval Florida Companies v. Orange County, 411 So.2d 1008 (Fla. 5th
DCA 1982);
The majority of cases in Florida have held that existing zoning alone does not create a vested
right and is not an act or omission of government which the property owner can use to invoke
equitable estoppel. No property owner has a vested interest in a particular zoning classification by
itself. See City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428,430 (Fla. 1954); Great
Outdoors Trading. Inc. v. City of High Springs, 550 So.2d 483, 488 (Fla. 1 st DCA 1989).
Conversely, there are cases where a purchase of land made contingent solely upon rezoning,
may legitimately be relied upon even though building permits have not been obtained nor physical
changes made to the land. See Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla.
2d DCA 1975). Additionally, in Hough v. Amato, 212 So.2d 662 (Fla. 1st DCA 1968), the court
held that estoppel was applicable where the property owner expended large amounts of time and
money on the existing zoning, and the government had knowledge of the property owner's reliance
on the existing zoning and had silently assented to his actions. The city was estopped from denying
the permit because it had been advised several times of the property owner's plans and had allowed
the owner to obtain permits to remodel the property. See also Miller v. MacGill, 297 So.2d 573, 576
(Fla. 1st DCA 1974); Dade County v. Jason, 278 So.2d 311, 312 (Fla. 3d DCA 1973).
SUBSTANTIAL CHANGE OF POSITION OR INCURRANCE OF
EXTENSIVE OBLIGATIONS AND EXPENSES
The final element of the doctrine of equitable estoppel requires a property owner who seeks
to vest rights to substantially change positions or incur extensive obligations and expenses in reliance
on governmental action, such that the property owner would suffer real injury ifhe were denied the
right to proceed with development on his property. Again, there is no firm standard or threshold for
meeting these criteria and courts generally have assessed each case on its particular facts. The
change of position or expenses incurred, however, must be induced by the governmental act and
must be authorized by the governmental act relied upon. See Town of Largo v. Imperial Homes
Corporation, 309 So.2d 571 (Fla. 2d DCA 1975); Department of Environmental Regulation v. Oyster
Bay Estates. Inc., 384 So.2d 891 (Fla. 1st DCA 1980); and Daytona Leisure Corporation v. Daytona
Beach, 539 So.2d 597 (Fla. 5th DCA 1989). Although the property owner must demonstrate some
change of position, the amount of expenses specifically held to be sufficient to invoke equitable
estoppel varies greatly.
Vested Rights Analysis
December 29, 1997
Page 4
Courts have accepted the following various expenses and obligations incurred as supporting
application of the doctrine:
(1) Preparation ofland for construction. Breger v. Britton, 75 So.2d 753 (Fla. 1954);
(2) Obligation to buy new property, negotiations to sell old property, arrangement of
mortgage loans and general expenses. City of Gainesville v. Bishop, 174 So.2d 100
(Fla. 1st DCA 1965);
(3) Expenditures on site plans, models, architect's plans and building permits.
Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla. 1976);
(4) Water and sewer improvements. Proiect Home. Inc. v. Town of Astatula, 373 So.2d
710 (Fla. 2nd at 488);
(5) Expenses for plans and costs of obtaining state permits. Town of Longboat Key v.
Mezrah, 467 So.2d 488;
(6) Planning expenses, architect's costs and engineering and surveying fees. City of
North Miami v. Margulies. 289 So.2d 424 (Fla. 3d DCA 1974).
The mere purchase ofland, however, has held to be not sufficient to establish a change in position.
See City of Miami Beach v. 8701 Collins Avenue, 77 So.2d 428 (Fla. 1954); Walker v. Indian River
County, 319 So.2d 596 (Fla. 4th DCA 1975).
THE "RED FLAG" DOCTRINE
Under the "red flag" doctrine once a property owner is on notice that the "government mind"
may change, reliance in good faith is not possible. Generally, the "red flag" is raised when the local
governing board takes action to initiate a rezoning amendment. The Supreme Court of Florida
established the "red flag" doctrine in Miami Shores Village v. William N. Brockway Post No. 124,
24 So.2d 33 (Fla. 1945). The Court in Brockway held that when a property owner, due to the
warning of certain "red flags" has good reason to believe that the "official mind" of the relevant
government might soon be changed by elections of different public officials, reliance in good faith
is not possible.
However, in Sakolsky v. City of Coral Gables, 151 So.2d 433 (Fla. 1963), the Florida
Supreme Court significantly narrowed the "red flag" doctrine and held that a municipality is
precluded from rescinding a permit when the property owner acts in good faith, even though the
property owner had reason to believe that the municipality's "official mind" might be changed by
election. See also Andover Development COW. v. City of New Smyrna Beach, 328 So.2d 231 (Fla.
1st DCA 1976); The Florida Companies v. Orange County, 411 So.2d 1008, 1011 (Fla. 5th DCA
1982). The "red flag" which puts a property owner on notice is also raised when the governing board
Vested Rights Analysis
December 29, 1997
Page 5
of the city or county directs the staff to initiate a rezoning amendment. See Smith v. City of
Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980); Sharrow v. City ofDania, 83 So.2d 274 (Fla. 1955)
(pending ordinance constituted a "red flag" that prevented the application of equitable estoppel); City
of Miami v. State Ergene. Inc., 132 So.2d 474 (Fla. 3rd DCA 1961) (pending litigation challenging
new ordinance prior to property owner incurring any expenditures prevented estoppel). We have
found no cases invoking the "Red Flag Doctrine" where vesting is provided for by ordinance.
In summary, (in the absence of ordinance established vesting) the doctrines of vested rights
and equitable estoppel will limit a local government in the exercise of its zoning power when a
property owner (1) relying in good faith; (2) upon some act or omission of the government; (3) has
made such a substantial change in position or incurred such extensive obligations and expenses that
it would be highly inequitable and unjust to destroy the rights he has acquired. Town of Largo v.
Imperial Hones Corv., 309 So.2d 571, 573 (Fla. 2nd DCA 1975); City of Hollywood v. Hollywood
Beach Hotel Co., 283 So.2d 867 (Fla. 4th DCA 1973). In Town of Largo, the Second District Court
summarized that the theory of estoppel amounts to nothing more than the" application of the rules
offair play".
The proposed ordinance amending Zoning Ordinance No. 89-2665, redefining the point of
vesting for a proposed development and requiring that a validly issued and active Full Building
Permit, variance approval, or Design Review approval be received prior to a vote by the Planning
Board in favor of a proposed zoning amendment, is reasonable and supported by case law (as set
forth in this memorandum). However, it is also important to note that while there are various cases
which support property owners' claims for equitable estoppel based upon a range of development
approvals, there is no "black and white" test in making such a determination. Ultimately, the
application of the doctrines of vested rights and equitable estoppel are based upon very fact specific
analyses and must be applied on a case-by-case basis.
F:\A TTO\$ALL\SHEILA \RAUL.MEM
C I T Y
o F
M I A M I
B E A C H
NOTICE OF A PUBLIC HEARING
NOTICE IS HEREBY given that a public hearing will be held by the Mayor and City
Commission of the City of Miami Beach, Florida, in the Commission Chambers, 3rd floor,
City Hall, 1700 Convention Center Drive, Miami Beach, Florida, on Wednesday,
January 7, 1998, at 10:15 a.m., to consider the adoption of the following ordinance:
AN ORDINANCE AMENDING COMPREHENSIVE ZONING ORDINANCE NO. 89-2665 BY AMENDING SECTION 14,
ENTITLED "CHANGES AND AMENDMENTS" BY AMENDING SUBSECTION 14-7, ENTITLED "PROPOSED ZONING
ORDINANCE AMENDMENTS ZONING- IN - PROGRESS MORATORIA ON PERMITS AND APPROVALS" BY
AMENDING SUBSECTION 14-7(C), WHICH EXEMPTS PROJECTS FROM ZONING-IN-PROGRESS MORATORIA,
BY MODIFYING THE REQUIREMENTS FOR ACHIEVING AN EXEMPTION FROM ZONING-IN-PROGRESS; AND
AMENDING SUBSECTION 14-8, ENTITLED "PROPOSED COMPREHENSIVE PLAN AMENDMENTS -- PLANNING-
IN-PROGRESS MORATORIA ON PERMITS AND APPROVALS" BY AMENDING SUBSECTION 14-8(C), WHICH
EXEMPTS PROJECTS FROM PLANNING-IN-PROGRESS MORATORIA, BY MODIFYING THE REQUIREMENTS FOR
ACHIEVING AN EXEMPTION FROM PLANNING-IN-PROGRESS; ADDRESSING THE APPLICATION OF THE
CURRENT ZONING-IN-PROGRESS PROVISIONS TO THIS ORDINANCE; PROVIDING FOR INCLUSION IN THE
ZONING ORDINANCE, REPEALER, SEVERABILITY AND AN EFFECTIVE DATE.
INQUIRIES may be directed to the Development, Design & Historic Preservation Services
Department at 673-7193.
All persons are invited to appear at this meeting or be represented by an agent, or to
express their views in writing addressed to the City Commission c/o the City Clerk, 1700
Convention Center Drive, 1st Floor, City Hall, Miami Beach, Florida 33139. Copies of
this ordinance are available for public inspection during normal business hours in the
City Clerk's office. The hearing on this Ordinance may be continued at this meeting and
under such circumstances, additional legal notice would not be provided.
Pursuant to Section 286.0105, Fla. Stat., the City hereby advises the public that: if a
person decides to appeal any decision made by the City Commission with respect to any
matter considered at its meeting or its hearing, such person must insure that a verbatim
record of the proceedings is made, which record includes the testimony and evidence upon
which the appeal is to be based. This notice does not constitute consent by the City for
the introduction or admission of otherwise inadmissable or irrelevant evidence, nor does
it authorize challenges or appeals not otherwise allowed by law.
In accordance with the Americans with Disabilities Act of 1990, persons needing special
accommodation to participate in this proceeding should contact the City Clerk's office
no later than four days prior to the proceeding. Telephone (305) 673-7411 for
assistance; if hearing impaired, telephone the Florida Relay Service numbers, (800)
955-8771 (TDD) or (800) 955-8770 (VOICE), for assistance.
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
http:\\ci.miami-beach.f1.us
TO:
FROM:
SUBJECT:
COMMISSION MEMORANDUM NO. J 0 - 9 g
Mayor Neisen O. Kasdin and
Members of the City Com ission
DATE: January 7,1998
Sergio Rodriguez
City Manager
Second Reading Public Hearing -- An Ordinance of the Mayor and City
Commission of the City of Miami Beach, Florida, Amending Comprehensive
Zoning Ordinance No. 89-2665 by Amending Section 14, Entitled "Changes and
Amendments" by Amending Subsection 14-7, Entitled "Proposed Zoning
Ordinance Amendments -- Zoning-In-Progress Moratoria. on Permits and
Approvals" by Amending Subsection 14-7(c), Which Exempts Projects from
Zoning-In-Progress Moratoria, by Modifying the Requirements for Achieving
an Exemption from Zoning-In-Progress; and Amending Subsection 14-8,
Entitled "Proposed Comprehensive Plan Amendments -- Planning-In-Progress
Moratoria on Permits and Approvals" by Amending Subsection 14-8(c), Which
Exempts Projects from Planning-In-Progress Moratoria, by Modifying the
Requirements for Achieving an Exemption from Planning-In-Progress;
Addressing the Application of the Current Zoning-In-Progress Provisions to
this Ordinance; Providing for Inclusion in the Zoning Ordinance, Repealer,
Severability and an Effective Date.
RECOMMENDATION
The Administration recommends that the ordinance, as amended and approved on First Reading, be
adopted on Second Reading, after holding a public hearing on said matter.
BACKGROUND
At the request of the City Commission, the City Attorney's Office drafted an amendment to the
Zoning Ordinance providing for a modification to the requirements for achieving an exemption to
Zoning-in-Progress and Planning-in-Progress Moratoria. More specifically, said draft ordinance
required a project to have a full building permit in order to achieve vested rights under the pre'-
existing provisions of the Zoning Ordinance prior to any affirmative recommendation to amend by
the Planning Board. The matter was referred to the Planning Board by the City Commission on
November 19, 1997 and heard by the Board on December 16, 1997. The Planning Board
recommended denial of the proposed ordinance. Furthermore, the Board rejected an alternate version
as proposed by the Administration which would provide for vested rights of a project at the time it
receives Design Review or Variance approval.
AGENDA ITEM .e. 5 A
DATE l-l-~8"
Over the past decade, the City Commission has continued to refine the Zoning Ordinance and to
enact zoning legislation which addresses the proper development of land. As the Commission is
aware, it is currently considering zoning legislation affecting design bonuses and parking
regulations. To the extent that developers and builders perceive that these changes, in turn, adversely
affect their perceived "rights" for a property, there is a corresponding rush to legalize, or vest, these
rights under the existing ordinance provisions before they expire.
On December 17, 1997, the City Commission approved (7-0) on First Reading, the attached
ordinance amending Subsections 14-7 and 14-8 of the Zoning Ordinance, which would change the
point in the City's development approval process where plans become vested to the time of design
review, or variance, approval. This version is the one which has, and continues to be, recommended
by the Administration. At the time of first reading, the Commission requested the City Attorney to
review the law as it relates to the time when vesting occurs for development projects. The City
Attorney's office has prepared a report on this issue which is attached, hereto.
ANAL YSIS
The proposed amendment as amended, would require that a project have Design Review or Variance
approval prior to a vote by the Planning Board on a zoning or comprehensive plan amendment in
order for the property owner or developer to vest rights under pre-existing legislation. Currently,
developers and builders need only to submit a completed application meeting all submission
requirements to the appropriate Board (either the Design Review Board or Board of Adjustment).
Whenever the City proposes a change to the Zoning Ordinance and there is a perception in the
development community that rights may be impaired, there has been a rush to submit applications
(most frequently to the Design Review Board) prior to the Planning Board vote.
Rather than holding developers to the strict requirement of a building permit or being as lenient as
only requiring developers to submit a complete application, the Administration believes
consideration should be given to a middle approach of requiring design review or variance approval.
In this alternative, the City is assured that there is a valid project proposed and that it has been
reviewed and approved by the respective Board. Developers would not be required to push their
projects through to a building permit prior to the deadline of the Planning Board vote. The pulling
of a permit can often be delayed by factors outside the control of either the City or the developer,
(e.g., FDOT withholds approval or the State Division of Beaches and Shores delays the issuance of
a Coastal Construction Control Line Permit F.)
In reviewing such a request for an amendment to the Zoning Ordinance or a change in land use, the
City Commission is to consider 13 relevant review criteria, when applicable for such changes. Since
the amending ordinance would only change the text of the Zoning Ordinance and would not
constitute a use change or a change in zoning district boundaries or classification, the review criteria
have been determined not to be applicable to this amendment request.
CONCLUSION
Based on the above, the Administration has concluded that the amending Ordinance, requiring that
there be design review or variance approval in place in order to establish vesting, be adopted on
second reading.
~1&JWM\cat
F:\PLAN\$ALL \ TEMP\ 1328REC.97
cc: Debbie Turner, First Assistant City Attorney
Diana Grub Frieser, First Assistant City Attorney
Harry Mavrogenes, Assistant City Manager