98-22708 RESO
REVISED 4/9/98
RESOLUTION NO.
98-22708
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AFFIRMING THE POLICY
DETERMINATION OF THE CITY OF MIAMI BEACH PLANNING
DEPARTMENT WITH REGARD TO THE PRESUMPTION OF
EQUITABLE ESTOPPEL FOR ANY PROJECT WHICH HAS BEEN ISSUED
A FULL OR PARTIAL BUILDING PERMIT, INCLUDING A DEMOLITION
PERMIT, AND WHERE CONSTRUCTION HAS COMMENCED
THEREUNDER ON OR BEFORE APRIL 1, 1998, PROVIDED THAT SAID
PERMIT REMAINS VALID.
WHEREAS, the City of Miami Beach Planning Department has developed a policy to assist
in determining whether the City of Miami Beach ("City") should be equitably estopped from
enforcing certain Zoning Ordinance amendments against certain development projects within the
City; and
WHEREAS, the Mayor and City Commission of the City of Miami Beach agree that the
policy of the Planning Department will fairly and equitably address concerns with regard to whether
projects which are under construction should be presumed to have met equitable estoppel criteria in
order to proceed.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the following policy
determination of the City of Miami Beach Planning Department is hereby affirmed:
Any project which has been issued a full or partial building permit, including a
demolition permit, and which has commenced construction thereunder on or before
April 1, 1998, shall be presumed to have achieved equitable estoppel with regard to
proceeding with such project, and the City of Miami Beach shall be estopped from
enforcing Ordinance Nos. 97-3097, 98-3107, and 98-3108, and any other applicable
Zoning Ordinance amendments adopted after April 1 , 1998, against any such project;
provided, however, said presumption of equitable estoppel shall continue only for the
period the referenced building permit remains valid.
PASSED and ADOPTED this 1 st day of April, 1998.
ATTEST:
YjfA
MAYOR
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CITY CLERK
F:\A1T()\ll.lRNIRESOS\EQlIIT4-1.POI
APPROVED AS 10
FORM & LANGUAGE
& FOR EXECUTION
~ 4JIi-
TY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
tp:\\cLmiami-beach.f1. us
~ITY OF MIAMI BEACH
COMMISSION MEMORANDUM NO. 2.12 - 9 ~
TO:
FROM:
Mayor Neisen O. Kasdin and DATE: April I, 1998
Members of the City Commission
Sergio Rodriguez $ ~
Gty Manager t{f--
EqUitable~~ppel Benchmarks and Equitable Estoppel Review Criteria for
Development Projects
SUBJECT:
RECOMMENDA TION
The Administration has developed benchmarks for establishing a presumption of equitable estoppel
as described below, and has drafted review criteria for projects not presumed to have equitable
estoppel rights. It should be noted that said benchmarks and criteria have not been reviewed by the
City's outside legal counsel at the time of printing of this report and, as such, further analysis and
guidance from said counsel is necessary prior to adopting the use of these benchmarks and review
cri teria.
BACKGROUND
On March 18, 1998, the City Commission directed the Administration and the City Attorney to
develop review criteria for determining which non-conforming development projects have arguable
claims to equitable estoppel rights. To this end, the Administration and the City Attorney have
developed Equitable Estoppel Benchmarks by which specific standards relative to individual projects
can be applied to determine a presumption of equitable estoppel. The basis for making such a
presumption of equitable estoppel is based on Miami-Dade County Code, Section 2-114.2,d(l) that
the applicant has:
1. Relied in good faith upon some act of omission of the City of Miami Beach; and
2. Has made such a substantial change in position or incurred such extensive
obligations and expenses to his/her detriment that it would be highly inequitable to
deny relief.
Benchmarks with a presumption of equitable estoppel enable the Administration to automatically
set aside a large number of projects that clearly meet the minimum criteria, thereby allowing more
time for the review of projects not presumed to have equitable estoppel based on established review
criteria.
The Administration has drafted review criteria which will be applied to projects which do not meet
a benchmark that presumes equitable estoppel has been achieved, in order to determine whether or
not equitable estoppel may be established.
Agenda Item r2-Sc
Date 4- - \ -9<l
ANALYSIS
Listed below are the twelve (12) different benchmarks identified for every non-conforming
development projects for which a Final Certificate of Occupancy has not been issued, but which was
conforming at the time of application. (See Appendix A for the list of non-conforming projects
categorized within each identified Benchmark). Projects within Benchmarks I through VIII are
presumed to have equitable estoppel, based on prima facie evidence and the fact that they had
obtained no less than a Design Review approval and had applied for a building permit prior to a
change in the Zoning Ordinance which would respectively affect their conformance to said
Ordinance (heights on October 18, 1997 and design bonuses and parking regulations on January 31,
1998).
All of these non-conforming projects (relative to height, FAR and parking regulations), between
Benchmarks IX and XII have either applied for or have obtained Design Review approval, but have
not made application for a Building Permit.
EOUIT ABLE ESTOPPEL PRESUMED
Benchmark I:
Full Building Permit Issued, Construction Commenced and Actively Progressing.
Equitable Estoppel Presumed: YES
Benchmark II:
Full Building Permit Issued, Construction Commenced, No Active Progress; Permit intact.
Equitable Estoppel Presumed: YES
Benchmark III:
Full Building Permit Issued, Construction Not Commenced.
Equitable Estoppel Presumed: YES
Benchmark IV:
Partial Building Permit Issued (Demolition and/or Foundation), Construction Commenced and
Actively Progressing.
Equitable Estoppel Presumed: YES
Benchmark V:
Partial Building Permit Issued (Demolition and/or Foundation), Construction Commenced, No
Active Progress; Permit intact.
Equitable Estoppel Presumed: YES
2
Benchmark VI:
Partial Building Permit Issued (Demolition and/or Foundation), Construction Not Commenced;
Permit intact.
Equitable Estoppel Presumed: YES
Benchmark VII:
No Building Permit Issued, Application Made for Full Building Permit, Active Approval from
Pertinent Development Review Board(s) (Design Review Board, Board of Adjustment, Historic
Preservation Board, Planning Board and any other required Regulatory Board), Approved
Concurrency Mitigation Plan (if required).
Equitable Estoppel Presumed: YES
Benchmark VIII:
No Building Permit Issued, Application Made for Partial Building Permit (Demolition and/or
Foundation), Active Approval from Pertinent Development Review Board(s) (Design Review Board,
Board of Adjustment, Historic Preservation Board, Planning Board and any other required
Regulatory Board), Approved Concurrency Mitigation Plan (if required).
Equitable Estoppel Presumed: YES
EOUIT ABLE ESTOPPEL NOT PRESUMED: INDIVIDUAL FINDING REQUIRED
Benchmark IX:
No Building Permit Issued, Full Building Permit Plans Complete (Application Not Made for Partial
Building Permit (Demolition and/or Foundation) or Full Building Permit, Active Approval from
Pertinent Development Review Board(s) (Design Review Board, Board of Adjustment, Historic
Preservation Board, Planning Board and any other required Regulatory Board), Approved
Concurrency Mitigation Plan (if required).
Equitable Estoppel Presumed: NO; Further evidence required.
Benchmark X:
No Building Permit Issued, Partial Building Permit Plans Complete (Application Not Made for
Partial Building Permit (Demolition and/or Foundation), Active Approval from Pertinent
Development Review Board(s) (Design Review Board, Board of Adjustment, Historic Preservation
Board, Planning Board and any other required Regulatory Board), Approved Concurrency Mitigation
Plan (if required).
Equitable Estoppel Presumed: NO; Further evidence required.
Benchmark XI:
Approval received and active from Pertinent Development Review Board(s) (Design Review Board,
Board of Adjustment, Historic Preservation Board, Planning Board and any other required
Regulatory Board), Concurrency Mitigation Plan (if required) Not Approved.
Equitable Estoppel Presumed: NO; Further evidence required.
3
Benchmark XII:
Application Made for Pertinent Development Review Board(s) (Design Review Board, Board of
Adjustment, Historic Preservation Board, Planning Board and any other required Regulatory Board);
approval not yet granted.
Equitable Estoppel Presumed: NO; Further evidence required.
Review Criteria for Determining Equitable Estoppel Rights
For those projects which do not have a presumption of equitable estoppel (those categorized as
meeting Benchmarks IX through XII) the Administration, in consultation with the Legal Department,
has developed the following criteria to be used in reviewing said projects for a determination as to
whether or not equitable estoppel has been achieved:
1. Land costs (investment in land)
- downpayment for purchase plus binding obligation to purchase
- lease payments
- option to purchase (cost/terms)
- associated acquisition costs (e.g. legal fees, title search, etc.)
- other
2. Project development costs
- architectural/engineering (AlE) fees
- legal fees
- marketing and pre-sales costs
- surveying/testing fees
- environmental analysis fees
- traffic study costs
- other
3. Application and other fees
- design review/regulatory board application fees
- county road/school impact fees
- other
CONCLUSION
In summary, the recent legal interpretation by the City Attorney that the existing Zoning Ordinance
does not provide for vested rights, requires that the Administration look at several options as to how
to determine whether a project has proceeded in good faith reliance on an act or omission of the City
whereby equitable estoppel may be presumed.
4
These options include, but are not limited to:
1. City Commission or City Manager appoints a committee to review equitable estoppel
rights on each project similar to Miami-Dade County's committee review system
(see Miami-Dade County Code, attached). Decisions by that committee may be
appealed to the City Commission. (Note: a committee review process \\lould require
an amendment to the Zoning Ordinance and/or City Code.)
2. Planning Department Staff makes equitable estoppel decisions on each project
based on review criteria which may be appealed to the Board of Adjustment.
3. The Zoning Ordinance is amended to establish a precise point when equitable
estoppel (or vesting) is achieved by all projects falling within this critical point.
(For example, this point might be at the time a project files for a full building
permit. )
The Administration has concluded that notwithstanding the progress made in identifying
benchmarks and review criteria regarding equitable estoppel rights, the determinations made
regarding these rights will no doubt be subject to challenge, whether they are done by an appointed
committee or by staff. Further, these benchmarks and review criteria have not been reviewed by the
City's outside legal counsel at the time of the printing of this report, and as such, further analysis and
guidance from said counsel is necessary prior to adopting the use of these benchmarks and review
criteria.
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A:\COM-ESTP. WPD
5
APPENDIX A
Benchmark I:
Full Building Permit Issued, Construction Commenced and Actively Progressing.
Equitable Estoppel Presumed: YES
Projects Affected:
1. 1501 Collins Avenue, (Bldg Permit #: B9500406)
Status: Work in progress.
2. 2009 Collins Avenue, (Bldg Permit #: B9603435)
Status: Work in progress.
3. 2642 Collins Avenue, (Bldg Permit #: B9700760)
Status: Work in progress.
4. 4775 Collins Avenue, (Bldg Permit #: B9500307)
Status: Work in progress.
5. 5900 Collins Avenue, (Bldg Permit #: B9200182)
Status: Work in progress.
6. 7800 Collins Avenue, (Bldg Permit #: B9702652)
Status: Work in progress.
7. 3737 Indian Creek Drive, (Bldg Permit #: B9500l72)
Status: Work in progress.
8.263 Meridian Avenue, (Bldg Permit #: B9600006)
Status: Work in progress.
9.90 Alton Road, (Bldg Permit #: B9702391)
Status: Work in progress.
10. 1401 Bay Road, (Bldg Permit #: B9500078)
Status: Work in progress.
11. 1 Century Lane, (Bldg Permit #: B9600254)
Status: Work in progress.
12. 801 Collins Avenue, (Bldg Permit #: B9701097)
Status: Work in progress.
13.510 Ocean Drive, (Bldg Permit #: B9603384)
Status: Work in progress.
14. 1455 Ocean Drive, (Bldg Permit #: B9500420)
Status: Work in progress.
15. 7320 Ocean Terrace, (Bldg Permit #: B9400493)
Status: Work in progress.
16. 1800 Purdy Avenue, (Bldg Permit #: B8800095)
Status: Work in progress.
Al
Benchmark II:
Full Building Permit Issued, Construction Commenced, No Active Progress; permit intact.
Equitable Estoppel Presumed: YES
Projects Affected:
1. 5801 Collins Avenue, (Bldg Permit #: B9l00094)
Status: Permit Expired.
2. 7824 Collins Avenue, (Bldg Permit #: B9500315)
Status: Work Stopped.
Benchmark III:
Full Building Permit Issued, Construction Not Commenced.
Equitable Estoppel Presumed: YES
Projects Affected: No projects at this benchmark.
Benchmark IV:
Partial Building Permit Issued (Demolition and/or Foundation), Construction Commenced and
Actively Progressing.
Equitable Estoppel Presumed: YES
Projects Affected:
1. File No. 7942J, 1100 - 1150 Lincoln Road - South Beach Cinema.
Status: Approved by DRB 10-1-96; Six Month Extension. Exceeds current building
height and parking; Foundation and Shell Permits issued.
2.6365 Collins Avenue, (Bldg Permit #: B9703339)
Status: Foundation Permit Only.
3. 155 Ocean Drive, (Bldg Permit #: B9801753)
Status: Demolition Permit Only, Work in progress.
Benchmark V:
Partial Building Permit Issued (Demolition and/or Foundation), Construction Commenced, No
Active Progress; permit intact.
Equitable Estoppel Presumed: YES
Projects Affected:
1. DRB File No. 9024, 1350 West Avenue - The Parkshore at South Beach.
Status: Approved by DRB 8-5-97: Exceeds Building Height and FAR. Demolition
Permit issued and existing structures on site demolished, Foundation Permit
application pending; Mitigation Plan has not been approved.
A2
Benchmark VI:
Partial Building Permit Issued (Demolition and/or Foundation), Construction Not Commenced;
permit intact.
Equitable Estoppel Presumed: YES
Projects Affected: No projects at this benchmark.
Benchmark VII:
No Building Permit Issued, Application Made for Full Building Permit, Active Approval from
Pertinent Development Review Board(s) (Design Review Board, Board of Adjustment, Historic
Preservation Board, Planning Board and any other required Regulatory Board), Approved
Concurrency Mitigation Plan (if required).
Equitable Estoppel Presumed: YES
Projects Affected:
1. DRB File No. 8543, 1424 Ocean Drive - Mcalpin and Ocean Plaza Hotels.
Status: Approved by DRB 3-4-97; One Year Extension. Exceeds FAR. Building
Permit application submitted.
2. DRB File No. 80781, 360 Collins Avenue (Condominium).
Status: Approved by DRB 11-5-96: One Year Extension. Exceeds FAR; Building
Permit application has all signatures except zoning.
3. DRB File No. 8776, 740 Ocean Drive - The Boulevard Hotel.
Status: Approved by DRB on 5-6-97. Exceeds FAR. Building Permit application
submitted.
4. DRB File No. 8541,200 Ocean Drive (Condominium).
Status: Approved by DRB 6-3-97: Exceeds FAR.
5.7600 Collins Avenue, (Bldg Permit #: B9400507)
Status: Pending Process.
Benchmark VIII:
No Building Permit Issued, Application Made for Partial Building Permit (Demolition and/or
Foundation), Active Approval from Pertinent Development Review Board(s) (Design Review Board,
Board of Adjustment, Historic Preservation Board, Planning Board and any other required
Regulatory Board), Approved Concurrency Mitigation Plan (if required).
A3
Equitable Estoppel Presumed: YES
Projects Affected:
1. File No. 4806, 7600 Collins Avenue - The Harrison.
Status: Approved by DRB on 10-10-95; One Year Extension. Original application
made 1/94.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
Became non-conforming on October 18, 1998 with respect to height.
Benchmark IX:
No Building Permit Issued, Full Building Permit Plans Complete (Application Not Made for Partial
Building Permit (Demolition and/or Foundation) or Full Building Permit, Active Approval from
Pertinent Development Review Board(s) (Design Review Board, Board of Adjustment, Historic
Preservation Board, Planning Board and any other required Regulatory Board), Approved
Concurrency Mitigation Plan (if required).
Equitable Estoppel Presumed: YES
Projects Affected: List of projects not available.
1. DRB File No. 9023, 7716 Collins Avenue - Pelican Apartments.
Status: Approved by DRB on 10-7-97: Exceeds FAR.
Benchmark X:
No Building Permit Issued, Partial Building Permit Plans Complete (Application Not Made for
Partial Building Permit (Demolition and/or Foundation), Active Approval from Pertinent
Development Review Board(s) (Design Review Board, Board of Adjustment, Historic Preservation
Board, Planning Board and any other required Regulatory Board), Approved Concurrency Mitigation
Plan (if required).
Equitable Estoppel Presumed: No; Further evidence required
Projects Affected: No projects at this Benchmark.
Benchmark XI:
Approval received and active from Pertinent Development Review Board(s) (Design Review Board,
Board of Adjustment, Historic Preservation Board, Planning Board and any other required
Regulatory Board), Concurrency Mitigation Plan (if required) Not Approved.
Equitable Estoppel Presumed: NO; Further evidence required
Projects Affected:
1. File No. 7219,225 Jefferson Avenue - Armitage Place.
Status: Approved by DRB on 8-6-96; One Year Extension. Exceeds current FAR.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
A4
2. DRB File No. 8938, 1403 Dade Boulevard - The Lofts at South Beach.
Status: Approved by DRB 6-3-97: Exceeds FAR; Project still requires variances.
Due to an appeal of the project, the applicant has until August 21, 1998 to
obtain a FULL Building Permit.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
3. DRB File No. 8619,1231-1251 17th Street.
Status: Approved by DRB 6-3-97. Inadequate Parking; Project recently obtained
required variances.
Note: Became non-conforming on January 31, 1998 with respect to amendments to parking
regulations.
4. DRB File No. 9022J, 1420 Ocean Drive - The Crescent Hotel.
Status: Approved by DRB 8-5-97: Exceeds FAR.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
5. DRB File No. 8778,3500 Collins Avenue - The Claridge Beach Hotel.
Status: Approved by DRB 8-5-97: Exceeds FAR.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
6. DRB File No. 91811, 100 Collins Avenue - The Nemo Hotel.
Status: Approved by DRB on 10-7-97: Exceeds FAR.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
7. DRB File No. 9104J, 226 Ocean Drive & 225 Collins Avenue (Condominium).
Status: Approved by DRB on 10-7-97: Exceeds FAR.
8. DRB File No. 9186, 5857 and 5875 Collins Avenue - The Flamin~o Hotel.
Status: Approved by DRB 11-17-97: Exceeds FAR and Building Height.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
Became non-conforming on October 18, 1997, with respect to building height.
9. DRB File No. 9194, 4441 Collins Avenue - The Fontainebleau Hotel.
Status: Approved by DRB 11-17-97: Exceeds FAR and Building Height. Project
approved to take place in five (5) phases as a phased development project.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
Became non-conforming on October 18, 1997, with respect to building height.
A5
10. DRB File No. 9188, 20 Venetian Way - Venetian Tower.
Status: Approved by DRB 11-17-97: Exceeds FAR and Building Height. Approval
reversed by City Commission.
Note: Became non-conforming on January 31,1998 with respect to FAR.
Became non-conforming on October 18, 1997, with respect to building height.
11. DRB File No. 9612,221 - 255 Michigan Avenue - Ambassador of Liberty.
Status: Approved by DRB on 12-2-97: Exceeds FAR.
Note: Became non-conforming on January 31, 1998 with respect to FAR.
12. DRB File No. 9613J, 1410 Ocean Drive - The Edgewater Beach Hotel
Status: Approved by DRB on 1-6-98: Exceeds FAR.
Note: Became non-conforming on January 31, 1998 with respect to FAR..
13. DRB File No. 9608,230 First Street - Excess Fitness.
Status: Approved by DRB on 2-10-98: Exceeds FAR.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding design bonuses.
14. DRB File No. 9804J, 927 Lincoln Road - The Sterling Building.
Status: Approved by DRB on 2-10-98: Exceeds FAR.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding design bonuses.
15. DRB File No. 9797J, 1116 - 1148 Ocean Drive - The Victor Hotel.
Status: Approved by DRB on 2-10-98: Exceeds FAR.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding design bonuses.
16. DRB File No. 98111, 940 Ocean Drive - The Breakwater Hotel.
Status: Approved by DRB on 2-10-98: Exceeds FAR.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding design bonuses.
17. DRB File No. 9816, 7600 Collins Avenue - Seaside Villas.
Status: Approved by DRB on 2-25-98: Exceeds FAR.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding design bonuses.
A6
18. DRB File No. 9820, 1403 Dade Boulevard - The Lofts at South Beach.
Status: Approved by ORB on 2-25-98: Exceeds FAR.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding design bonuses.
19. DRB File No. 9813,6565 Collins Avenue - Sherry Frontenac Hotel.
Status: Approved by DRB on 2-25-98: Parking requirements not met.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding parking regulations.
20. DRB File No. 9814,1920 Meridian Avenue - Miami Beach Chamber of Commerce.
Status: Approved by DRB on 2-25-98: Parking requirements not met.
Note: Obtained DRB approval after effective date (January 31, 1998) of amendment to the
Zoning Ordinance regarding parking regulations.
Benchmark XII:
Application Made for Pertinent Development Review Board(s) (Design Review Board, Board of
Adjustment, Historic Preservation Board, Planning Board and any other required Regulatory Board);
approval not yet granted.
Equitable Estoppel Presumed: NO; Further evidence required.
Projects Affected:
Non-Conforming Projects to be considered by DRB on 3-25-98:
1. DRB File No. 9187, 1403 Dade Boulevard (Condominium).
Status: Exceeds FAR and Building Height.
2. DRB File No. 98011,101 - 115 Ocean Drive (Condominium).
Status: Exceeds FAR.
3.DRB File No. 9815J, 340 23rd Street (Office/Retail).
Status: Exceeds FAR.
4. DRB File No. 9812J, 202 - 206 Washington Avenue (Townhomes).
Status: Exceeds FAR.
5. DRB File No. 9817, 775 Dade Boulevard - Warren Harding Hotel.
Status: May have a Parking Impact Fee Issue.
A7
Non-Conforming Projects to be considered by DRB on 4-14-98:
1. DRB File No. 91011, 311 Meridian Avenue - Les Residence.
Status: Exceeds FAR.
2. DRB File No. 98l8J, 1250 Ocean Drive - Carlyle Hotel.
Status: Exceeds FAR.
3. DRB File No. 98l9J, 736 Ocean Drive - Colony Hotel.
Status: Exceeds FAR.
4. DRB File No. 9799J, 119 -137 Washington Avenue (Office).
Status: Exceeds FAR.
Non-Conforming Projects to be considered by DRB on 5-12-98:
1. DRB File No. 9190,4833 Collins Avenue - The Westin Resort.
Status: Exceeds FAR and Building Height.
2. DRB File No. 9796, 6801 Collins Avenue - The Carillon Hotel.
Status: Exceeds FAR and Building Height.
3. DRB File No. 9802, 520-540 West Avenue (Condominium).
Status: Exceeds FAR.
4. DRB File No. 9800J, 1437-1465 Collins Avenue (Retail).
Status: Exceeds FAR.
5. DRB File No. 9810, 6000 Indian Creek Drive (Condominium).
Status: Exceeds FAR.
6. DRB File No. 9192, Ocean and Easement Parcels located at the southeast corner of South
Pointe Drive and Ocean Drive - Ocean Parcel (PORTOFINO).
Status: Exceeds FAR and Building Height.
7. DRB File No. 9611, Ocean and Easement Parcels located at the southeast corner of South
Pointe Drive and Oce!ill Drive - Ocean Parcel (PORTOFINO).
Status: Exceeds FAR and Building Height.
8. DRB File No. 9605J, 140 & 150 Ocean Drive - The Century Hotel.
Status: Exceeds FAR.
A8
9. DRB File No. 9193, Ocean and Easement Parcels located at the southeast corner of South
Point Drive and Ocean Drive - Ocean Parcel (CONTINUUM).
Status: Denied by DRB on 1-6-98: Exceeds FAR and Building Height. Request for
Rehearing filed by applicant.
10. DRB File No. 9486, Ocean and Easement Parcels located at the southeast comer of South
Pointe Drive and Ocean Drive - Ocean Parcel (CONTINUUM).
Status: Denied by DRB on 1-6-98: Exceeds FAR and Building Height. Request for
Rehearing filed by applicant.
Non-Conforming Project to be considered by DRB on 6-9-98:
1. DRB File No. 9798J, 119 - 137 Washington Avenue (Hotel).
Status: Exceeds FAR.
A9
ADMI)iISTR.-\TION
(:2) The municipality shall have building per-
mit and zoning jurisdiction over such fa-
cili ties:
(3) The County and the municipality shall
have entered an interlocal agreement re-
lating specific3.lly to the facilities, mutu-
ally funding them to be in the public
interest: and the County's actions pertain-
ing to the facilities are not inconsistent
with such 3.greement.
County actions within the scope of this subsection
shall be deemed consistent with the CDMP.
(Ord. No. 75-22, S 4, 3-31-75; Ord. No. 79-63, ~ 5,
7-11-79; Ord. No. 88-3, S I, 2-2-88; Ord. No.
88-110, S 4.11-29-88; Ord. No. 89-10, S 1,2-21-89;
Ord. No. 95-215, S 1. 12-5-95; Ord. No. 96-89, S 1,
6-18-96; Ord. No. 96-127, S 1, 9-4-96)
Note--See the editor's note following ~ 2-112.1.
Sec. 2-114.1. Admini.strative review of tak-
ings and vested rights claims.
(a) Documentation of claim.
(1) Any applicant alleging that the Compre-
hensive Development Master Plan, as ap-
plied to a particular development order or
action, constitutes or would constitute a
temporary or permanent taking of private
property or an abrogation of vested rights
(taking or abrogation) and any person or
entity claiming a potential taking or ab-
rogation under Chapter 33 of this Code
must affirmatively demonstrate the legal
requisites of the claim by exhausting the
administrative remedy provided in this
section.
(2) Claims of a taking or abrogation of vested
rights are limited solely to extreme cir-
cumstances rising to the level of a poten-
tial denial of rights under the Constitu-
tions of the United States and the State of
Florida. The procedures provided herein
for demonstrating such a taking or abro-
gation of vested rights are not intended to
be utilized routinely or frivolously, but
only in the extreme circumstances de-
scribed above, The claimant or the attor-
ney for the claimant shall exercise due
diligence in the filing and argument of
Supp. )io. 22
34:1
~ 2.1Hl
any sworn statement, notice of invoking
administrative remedy or other claim for
a taking or 3.brogation of vested rights.
The signature of t::e claimant or the at-
torney for the cla!::lant upon any docu-
ment in connection with a cl3.im of taking
or 3.brogation ofve:3ted rights shall consti-
tute a certificate that the person signing
has read the document and that to the
best of his k....lOwledge it is supported by
good grounds and that it has not been
presented solely for- delay. The claimant
and the attorney for the claimant shall
have a continuing obligation throughout
the proceedings to correct any statement
or representation found to have been in-
correct when made or which becomes in-
correct by virtue of changed circum-
stances. If a claim of taking or abrogation
of vested rights is: (1) based upon facts
that the claimant or the attorney for the
claimant knew or should have known were
not true; or (2) frivolous or filed solely for
the purposes of delay, the appropriate
County board or agency shall make such a
finding and may pursue any remedy or
impose any penalty provi.ded by law or
ordinance.
(b)
( 1)
Definitions.
Developmental permit defined. For pur-
poses of this section a "developmental
permit" shall mean a developmental order
or action which may be issued by an
administrative official without the neces-
sity of a hearing on the application for
said developmental permit.
Develoomental resolution defined. For pur-
poses 'of this section, a "developmental
resolution" shall neaI1. a developmental
order or action ,....rich requi:-es the ap-
proval of a County boa:-d or agency after a
hearinG' on the aODLication for said devel-
~ . .
opmental resolutior: prior to it.s is.suance.
Sworn statement defined. For purpose of
this .section "sworn statement" shall mean
the sworn ;tatemer::: descr-ibed in Section
2-114.113.) tog~ther .sith all accompan~--ing
documents, wi.tness lists. items and thmgs
(2)
(3)
Ii 2-114.1
DADE COUNTY CODE
supporting the applicant's claim and an
administrative fee established by admin-
istrative order of the County Manager to
be approved by the Board of County Com-
missioners.
(c) Invocation of administrative remedy.
(1) Any developmental pennit denied on the
grounds of inconsistency with the Com-
prehensive Development Master Plan shall
state in writing that the permit has been
denied on such basis. Any applicant seek-
ing to appeal the denial of a developmen-
tal permit on the grounds set forth in
Section 2-114.1(a) shall file a notice of
invoking administrative remedy with the
Developmental Impact Committee Coor-
dinator on a form prescribed by the direc-
tor within fifteen (15) days of the denial of
said developmental permit. Any claimant
contending that action upon a County
application will result in a taking or ab-
rogation of vested rights under Section
33-315 of this Code shall file a notice of
invoking administrative remedy with the
Developmental Impact Committee Coor-
dinator on a fonn prescribed by the direc-
tor within thirty (30) days of receipt of the
certified mail notice required by Section
33-315, provided the County Commission
may extend the thirty-day filing period
prescribed by this sentence upon a show-
ing of good cause as provided by Section
33-315. The applicant shall file a com-
plete sworn statement within ninety (90)
working days of the filing of the notice of
invoking administrative remedy. Failure
to file the sworn statement within the
time specified in this paragraph shall
constitute an irrevocable waiver of claim.
(2) Any applicant alleging that the action of
the Board of County Commissioners or a
Community Zoning Appeals Board upon
an application for a zoning action under
Chapter 33 would constitute a temporary
or permanent taking of private property
or an abrogation of vested rights shall file
a complete sworn statement with the De-
velopmental Impact Committee Coordina-
tor not later than forty-five (45) days
Supp. No. 22
before the first hearing on the develop-
mental resolution. No oral testimony or
written reports or documents in support
of any argument that the denial of the
developmental resolution would consti-
tute a temporary or permanent taking of
private property or would abrogate vested
rights shall be considered as evidence at
the public hearing unless the complete
sworn statement has been timely filed
pursuant to this paragraph; provided, how-
ever, that where an applicant has failed to
timely file a sworn statement pursuant to
this paragraph, the Board of County Com-
missioners, Environmental Quality Con-
trol Board, or any other board taking
action on a developmental resolution may
defer the hearing on an application for a
developmental resolution to avoid a man-
ifest injustice and to provide adequate
time for review of the sworn statement by
the Developmental Impact Committee or,
in the event of an application initiated by
a party other than the affected property
owner, to provide adequate time for the
property owner to invoke the administra-
tive remedy and to adhere to the time
schedules provided herein.
(d) Reuiew by Deuelopmental Impact Commit-
tee and County Boards.
(1) It shall be the duty and responsibility of
the Executive Council of the Developmen-
tal Impact Committee to review all sworn
statements timely filed with the Develop-
mental Impact Committee Coordinator pur- .
suant to this section. The Developmental
Impact Committee shall have the author-
ity to request additional information from
the applicant.
(2) If the Executive Council of the Develop-
mental Impact Committee finds that a
denial of a developmental permit would
result in a temporary or permanent tak-
ing or abrogation of vested rights, it shall
reverse or modify said denial. Otherwise,
the Executive Council shall affirm said
denial. Within fourteen (14) days the ap-
plicant may appeal the decision of the
342
A..D:>.ll:-.J'!STRATlOi'i
~ :::-114.:::
Executive Council to the Board of County
Commissioners pursuant to Section 33-
31.+ (If the Code.
(3) Notwithstanding any other provision of
the Code of ~retropolitan Dade County to
the contrary, the Board of County Com-
missioners shall have jurisdiction to re-
view conflicts between decisions of the
Executive Cduncil of the DevelopmentJ..!
Impact Committee regarding developrnen-
tal permits made pursuant to this section
and decisions of any other County board
made pursuant to an appeal of an admin-
istrative decision.
(4) The Executive Council of the Developmen-
tal Impact Committee shall prepare a
written recommendation to the appropri-
ate County board regarding sworn state-
ments filed in conr.ection with an applica-
tion for a developmental resolution. With
the exception of County boards whose
decisions are directly reviewable by an
appellate court, the Board of County Com-
missioners shall have exclusive jurisdic-
tion to consider and take action upon all
applications for developmental resolu-
tions for which the applicant has invoked
the administrative remedy set. forth in
this section. .
(5) The appropriate County board may elect
to first consider the primary application
rather than concurrently conduct a hear-
ing upon a claim of taking or abrogation of
vested rights. If the Board's determina-
tion is that the primary application should
be denied in whole or in part, such deter-
mination shall not be a final decision but
shall be subject to a further determina-
tion of a claim of taking or abrogation of
vested rights. The Board may either hear
directly the claim of taking or abrogation
of vested rights, may defer consideration
of the claim to a subsequent hearing, or
may refer the same to the Executive Coun-
cil of the Development Impact Committee
for further review and recommendation
prior to taking final action. If the Board
shall finally determine that denial of the
primary application would result in a
Supp. :--<0. :::2
taking or abrogation of vested rights, the
Board shall grant appropriate reliefwhi6
would avoid 5uch result. Upon a determi-
naClon by the Board that denial of the
primary application would not effect a
taking or abrogate ve5ted rights. the pre-
liminary determination to deny shall be-
come final.
(e) Notwithstanding any contrary provision of
the Code of Metropolitan Dade County, a develop-
mental resolution adopted by any County board
other than the Board of County Commissioners
shall not be deemed to be a final order for any
purpose where: (1) the administrative remedy of
this section has been invoked; and (2) the Execu-
tive Council of the Developmental Impact Com-
mittee has appealed said developmental resolu-
tion to the Board of County Commissioners. Said
appeal shall be filed within fourteen (14) days of
the date of the adoption of the developmental
.resolution.
(f) Exhaustion of administrative remedies. A
developmental order or action shall not be deemed
a fmal order in any court or quasi-judicial pro-
ceeding challenging the denial of the developmen-
tal order or action as a temporary or permanent
taking of private property or an abrogation of
vested rights unless the remedies set forth in this
section have been exhausted.
(Ord. No. 89-10, 9 2, 2-21-89; Ord. No. 94-37, 9 1,
3-3-94; Ord. No. 95-215, 9 1, 12-5-95; Ord. No.
96-127, S 1.9-4-96; Ord. No. 97-198, S 1, 11-4-97)
Sec. 2-114.2. Supplem.ental optional vested
rights procedure.
(a) Purpose. Any property owner who has re-
ceived a master tentative plat, tentative plat or
waiver of plat approval prior to July 1,1989, may
apply for a determination of whether the owner
has a vested right to obtain specified developmen-
tal permits or developmental resolutions, as de-
fined in Section 2-114.1(b), for the purpose of
accomplishing a specifically described develop-
ment notwithstandinG" orovisions of the Dade
Coun~j Comprehensiv: D"evelopment Master Plan.
(CDMP) or County land development regulations.
(bJ Standards, procedu.res, requirement.< u.ttc!.
definitions. C nless otherwise specifical! f pro-
:343
~ 2.114.2
DADE COUNTy CODE
vided, all standards, procedures, requirements
and definitions of Sections 2-114 and 2-114.1 of
the Code shall be applicable to proceedings under
this section, Sections 2-114.3 and 2-114.4 and
shall be in addition to the provisions of this
section.
The following definitions shall apply to this
section and Sections 2-114.3 and 2-114.4 unless
otherwise indicated herein.
(1) Consistent with and in conformity with
shall have the definitions set forth in
Section 2-114(d)(2) of the Code of Metro-
politan Dade County, Florida (Code).
(2) Continuing in good faith. Continuing shall
mean a progression of steps taken to
proceed with and complete the develop-
ment authorized by a development permit
in a diligent, prudent and businesslike
manner, in compliance with all applicable
laws and regulations. Good faith shall not
encompass dishonest, fraudulent, or de-
ceitful action, ignorance or circumvention
of legal requirements, or delay resulting
from neglect or lack of diligence.
(3) Development shall have the definition set
forth in Sections 163.3164(5) and 380.04,
Florida Statutes, as the same may from
time to time be amended.
(4) Development permit shall mean anyoffi-
cial action of local government having the
effect of permitting the development of
land without any further local govern-
ment action, which may include, but is
not limited to, a building permit, zoning
permit, subdivision approval rezonina-
, 0'
certification, special exception, or vari-
ance. For purposes of this section, a de-
velopment permit shall be deemed a final
local development order within the mean-
ing of Section 163.3167(8), Florida Stat-
utes.
(5) Land development regulations shall mean
the County's service concurrencv manaa-e-
- 0
ment program contained in Chapter 33G
of the Code, as the same may be amended
from time to time.
Supp. No. 22
344
(c) Application. An application form to accom-
plish the purposes of this section shall be pre-
Scribed by the Chairman of the Executive Council
of the Developmental Impact Committee (DIC).
Such form shall require information relevant and
material to a determination of vested rights,
inclUding but not limited to:
(1) Detailed description of the particular de-
velopment in question, including but not
limited to (a) authorized land use; (b)
density or intensity of development; (c)
staging, phasing or timing of develop-
ment; and (d) other conditions of develop-
ment or mitigation that are specific to
prior development permits;
(2) An itemization of all actions or omissions
of Dade County allegedly relied upon,
together with specific acts of reliance per-
taining to each;
(3) A complete itemization of government ap-
provals to the extent practicable (e.g. per-
mits or resolutions) needed to complete
the development for which applicant claims
vested rights in relationship to the CDMP
and land development regulations;
(4) An itemization of all CDMP provisions or
land development regulations adopted sub-
sequent to December 6, 1988 which, if
applied, would allegedly abrogate vested
rights;
(5) The period oHime for which the applicant
claims rights are vested; and
(6) Any and all conditions' and limitations
applicable to the claimed vested develop-
ment right.
In addition to all items otherwise required by the
Chairman or by Section 2-114.1, the applicant
shall attach the following to the application: (1)
copies of any applicable development permits and
development orders, and (2) any other documents
which support or negate the claim of vested
rights. To the extent there is a claim of reliance
upon an act or omission of Dade County under
subsection 2-114.2(d)(l), the applicant shall sub-
mit all available documentation showing such
reliance, including bills, statements, copies of
canceled checks, and a complete itemization and
ADMINISTRATION
9 2-114.2
total of all expenses incurred in reliance upon
such act or omission. The applicant shall submit
with his application a letter of intent explaining
the basis of his claim for vested rights and a
notice, including the mailing address, of all par-
ties who hold a security interest in the affected
property. The mere existence of zoning prior to
the effective date of this section shall not vest
rights.
(d) Standards. In order to establish vested
rights pursuant to this section and Section 2-114.3,
the applicant shall establish:
(1) That he has (1) relied in good faith (2)
upon some act or omISSIon oWade County~1'\1 ~
occurring pnor to lJecember 15, 1988 as
related to the CDMP and prior to July 1,
1989 for those matters related to the
County's Service Concurrency Manage-
ment Program, Chapter 33G, Code,p
(3) has made such a substantial change in
- osition or incurred such extensive obli- -
ations an e. 0 s etriment
that it would be hi me uitable to
deny reli~ oL,
(2) The applicant has the right to complete
development pursuant to Section
163.3167(8), Florida Statutes, because a
development permit issued from Dade
Supp. No. 22-
344.1
AD M I;-':ISTRATI ON
County, and development has lawfully com-
menced on the property for which the ap-
plicable development permit has been is-
sued and is continuing in good faith. The
development permit must have issued prior
to the adoption of the land development
regulations which the applicant contends
should not be strictly applied to him be-
cause of vested rights.
Good faith reliance shall not include ignorance or
unawareness of the law.
(e) Notice.
(1) The meeting of the DIC Executive Council
at which an application shall be considered
pursuant to this section shall be held upon
at least fifteen (15) days' notice of the time
and place of such meeting published in a
newspaper of general circulation in Dade
County, which publication shall include the
time and place of hearing before the DIC. A
courtesy notice containing general informa-
tion as to the date, time, and place of the
meeting, the property location and general
nature of the application shall be mailed to
the property owners of record, within a
radius of three hundred (300) feet of the
property ~cribed in the application, or
such greater distance as the DIC Coordina-
tor may prescribe; provided, however, that
failure to mail or receive such courtesy
notice shall not affect any action or proceed-
ing taken hereunder. To provide additional
notice to the public, the property shall be
posted by a sign or signs indicating the
action desired and the time and place of the
public meeting thereon. Failure to post
such property shall not affect any action
taken hereunder.
(2) In addition, notice of all DIC Executive
Council meetings in which recommended
vested rights determinations shall be con-
sidered shall be published in the regularly
published calendar of County events known
as the "Metro Calendar."
(3) Additional notice shall be given by the DIC
Coordinator by posting a short, concise
statement of the action requested to be
taken on a conspicuous bulletin board that
Supp. No. 16
~ 2-114.2
may be seen by the public at reasonable
time and hours within or adjacent to the
offices of the Department of Planning, De-
velopment and Regulation.
(f) Review of application b)' DIC Executive Coun-
cil.
(1) An application filed pursuant to this sec-
tion shall be reviewed by the DIC Execu-
tive Council at a meeting of the council.
The council, board, agency or official hav-
ing responsibility for the issuance of any
and all development resolutions or permits
encompassed by the application shall be
requested by the Executive Council, and is
required hereby, to submit a report address-
ing the application as it relates to the
function of said council, official, agency or
board. Where the issuance of a develop-
ment resolution or permit encompassed b,
the application must be preceded by a
public hearing conducted by a board, the
report to the Executive Council shall be
made by staff who are responsible for re-
porting to such board. Except as otherwise
provided herein, the DIC Executive Coun-
cil shall conduct its review in accordance
with the standards and procedures of Sec-
tion 2-114 and Section 2-114.1.
(2) Within fifteen (15) days after receipt of an
application for a recommended vested rights
determination, the DIC Coordinator shall
determine and notify the applicant whether
the application information is sufficient to
enable the DIC Executive Council to issue
a recommended vested rights determina-
tion, and the DIC Coordinator shall re-
quest any additional information needed. If
the DIC Coordinator determines that the
information in the application is not suffi-
cient, the applicant shall either provide
additional information as requested, or shall
notify the DIC Coordinator in writing that
the information will not be supplied and
the reasons therefor. If the applicant de-
clines to provide the requested informa-
tion, the DIC Executive Council will begin
the recommended vested rights determina-
tion. If the applicant does not respond to
the request for additional information within
345
~ 2-114.2
DADE COUNTY CODE
ninety (90) days, then the application shall
be deemed to be withdrawn. If the appli-
cant provides requested additional informa-
tion, the DIC Coordinator shall, within
fifteen (IS) days from receipt of the addi-
tional information, determine whether the
additional information furnished is suffi-
cient to comply with this request. If the
additional information is not sufficient, the
DIC Coordinator shall notify the applicant
of the respects in which the information
does not comply with the original request.
When all requested information is re-
o ceived, the application will be considered
sufficient and the applicant will be so noti-
fied.
(3) The DIC Executive Council shall review
the completed application and any addi-
tional information provided. It shall con-
sider all written documents, written state-
ments, and information submitted by the
applicant or gathered and made part of the
record by the DIC Coordinator during the
investigation and evaluation of the appli-
cation. The DIC Coordinator may solicit
and shall accept submission of relevant
information from any other appropriate
departments or agencies of Dade County.
The DIC Coordinator may solicit and shall
accept information from any third persons
who may possess factual information rele-
vant to the investigation of an application.
Copies of such information obtained by the
DIC Coordinator shall be furnished to the
applicant, and the applicant shall be given
an opportunity to respond to the informa-
tion. The applicant shall be given an oppor-
tunity to address the DIC Executive Coun-
cil and present evidence and argument in
favor of its application, and respond to any
questions or concerns raised by members of
the DIC Executive Council.
(4) Within sixty (60) days after acknowledging
receipt of a sufficient application, or receiv-
ing notification that additional information
requested pursuant to subsection ([)(2) will
not be supplied, the DIC Executive Council
shall give notice and review the application
in accordance with the procedures con-
SuPp. No. 16
tained herein and. shall issue its vested
rights recommended determination. The
time for issuance of the recommended vested
rights determination by the DIC Executive
Council may be extended by agreement
between the applicant and the DIC Execu-
tive Council. A recommended vested rights
determination shall contain findings of fact
and conclusions supporting the said recom-
mended determination.
(g) 'Vested rights determination. If the recom-
mended determination of the DIC Executive Coun-
cil is favorable to the applicant either in whole or
in part, the recommended determination shall be
as specific as possible in articulating all those
matters set forth in subsections (c)(I}-(6). Addi-
tionally, the recommended determination shall
specify what development permits or develop-
ment resolutions are vested m reI"ation to specific
provisions of this CDMP or land use regulations.
Further, the recommended determination shall
clearly state that vested rights are not found to be
applicable to any development permits or resolu-
tions other than those specified in the recom-
mended determination, nor do vested rights apply
against the application or enforcement of any
provisions of the CDMP or the County's land use
regulations otl!er than those specified in the rec-
ommended determination. The vested rights de-
termination shall state that the vested rights
determination may be reconsidered if it is subse-
quently found that the determination was based
upon substantially inaccurate information pro-
vided by the applicant.
The DIC Executive Council's recommended deter-
mination shall be promptly transmitted to each
County official, agency, board or department hav-
ing authority to issue any development permit or
resolution encompassed by the recommended vested
rights determination.
Official public notice of the issuance of the recom-
mended determination shall be given by posting a
short, concise statement of the action taken on a
conspicuous bulletin board that may be seen by
the public at reasonable times and hours in the
office of the Department of Planning, Develop-
ment and Regulation.
346
ADML'\ISTRATION
If the recommended determination of the DIC
Executive Council pertains in any way to a re-
quest for a developmental resolution or any other
matter over which the Board of County Commis-
sioners may subsequently have original (nonap-
pellate) jurisdiction, the Executive Council's rec-
ommended determination shall automatically be
placed upon the agenda of the Board of County
Commissioners simultaneously with the request
for original County Commission action, shall not
be binding upon the Board of County Commission-
ers, and shall be noticed and heard pursuant to
the procedure of subsection (h) below. With regard
to any application not encompassed by the pre-
ceding sentence, the determination of the Execu-
tive Council shall become final unless the same is
appealed pursuant to the provisions of subsection
(h) below.
(h) Appeal, exhaustion of administrative reme-
dies and Judicial review. An appeal of a recom-
mended determination of the Executive Council
may be taken to the Board of County Commission-
ers pursuant to the procedures of Sections 33-312
and 33-313 of the Code. The County Commission
hearing shall be after notice in accordance with
Section 33-313 of the Code which section incorpo-
rates the notice provisions of Sections 33-310(c),
(d), (e), and CD of the Code. The Board of County
Commission~ ~e.ll conduct a de novo heari':lg
and, by resolution, issue a final vested rights
determination pursuant to the procedures of Sec-
tion 33-314 of the Code. Section 33-316 of the
Code (Exhaustion of Administrative Remedies,
HearinlT Procedure and Judicial Review) shall
..
apply to appeals filed pursuant to this section.
(i) Filing period. Any application for an initial
determination of vested rights, pursuant to Sec-
tion 2-114.2, shall be filed with the DIC Coordi-
nator within: (A) eighteen (18) months after the
effective date of this section; or (B) one (1) year
after the effective date of any land development
regulation enacted subsequent to the effective
date of this section [Ordinance No. 90-76] if
applicant is seeking a determination that vested
rights exempt it from compliance with such sub-
sequently enacted land development regulation.
(j) Effect of vested rights determination. If an
affirmative vested rights determination becomes
Supp. No. 19
S 2-114.2
final, then the particular provisions of the CDl\1P
or County land development regulations specified
in the final determination shall not limit or mod-
ify the vested right of the applicant to complete
the particular project in question. However, such
a f.ll1al vested rights determination shall not limit
the applicability of any other provi.sions of the
CDMP or any other ordinances, rules, regulations
and requirements of Dade County. Nor shall the
vested rights determination entitle the applicant
to the issuance of any development resolution or
permit not specified in the fmal vested rights
determination. Within these limitations of this
subsection, the development rights specifically
protected by this section may include, but are not
limited to, the following:
(1) Authorized land use;
(2) Density or intensity of development;
(3) Staging, phasing or timing of development;
and
(4) Other conditions of development or mitiga-
tion that are specific to the development
approval or to the final local development
order.
(k) Duty to continue development in good faith.
(1) In order to implement effective decision-
making by the County with regard to the
planning, financing and construction of in-
frastructure, any applicant affirmatively
demonstrating the existence of vested rights
pursuant to this section and Sections 2-114.3
and 2-114.4 must continue in good faith to
develop the vested project after the date of
the vested rights determination.
(2) For any affirmative vested rights determi-
nation the DIC Executive Council may in-
clude definite criteria and requirements
which if satisfied will establish conclu-
sively'that the ap;licant has continued in
good faith to develop after the date of the
vested rilThts determination. These criteria
..
and requirements shall include one or more
of the following:
a. A reasonable deadline for commence-
ment of physical development, if such
347
9 2-114.2
DADE COUNTY CODE
development has not commenced as of
the date of the vested rights determi-
nation;
b. Phasing or staging requirements, as
appropriate, including but not limited
to deadlines for requesting or receiving
permits or approvals for initiating and
completing various development activ-
ities;
c. Termination dates, which shall reason-
ably reflect the time required to com-
plete the phase in question or to com-
plete the development, as applicable,
and which may take into consideration
the requirements of lenders while dil-
igently enforcing security interests; or
d. Any other appropriate development re-
quirements set forth in prior develop-
ment permits.
An applicant's failure to satisfy such crite-
ria and requirements will not necessarily
establish that applicant has not continued
in good faith to develop the project. How-
"ever, the vested rights determination for
the project will be suspended and all appli-
cations for development permits will be
subject to the CD.MP and applicable land
development regulations..mless and until
the applicant has received a further deter-
mination of vested rights pursuant to para-
graph (k)( 4) below.
(3) The DIC Executive Council may require
the submission of annual reports by the
applicant on forms to be prepared by the
DIC Executive Council, on the anniversa-
ries of the vested rights determination,
which include such information as the de-
velopment activity actually conducted for
the past year, sales of undeveloped parcels
to third parties, as assessment of the
applicant's compliance with the criteria
and requirements set forth in the vested
rights determination and with any condi-
tions of the original approval, and any
other information reasonably required by
the DIC Executive Council.
(4) If an applicant has failed to satisfy the
criteria and requirements incorporated in
Supp. No. 19
the vested rights determination pursuant
to paragraph (k)(2), then the applicant may
apply to the DIC Executive Council for a
determination that it has in fact continued
to develop in good faith since the date of the
vested rights determination. Such subse-
quent determination will be limited solely
to a consideration of applicant's develop-
ment activities and other matters occur-
ring since the date of the vested rights
determination, in order to ascertain whether
the applicant has continued in good faith to
develop since the date of the vested rights
determination. That determination shall
be governed by the procedures for an initial
recommended vested rights determination
under this section.
(5) Nothing set forth in this subsection shall
apply to any development that has been
authorized as a development of regional
impact pursuant to Chapter 380, Florida
Statutes, prior to July I, 1989.
(Ord. No. 90-76, 9 1,7-24-90; Ord. No. 95-215, 9 1,
12-5-95; Ord. No. 96-127, 9 I, 9-4-96)
Sec. 2-114.3. Reaffirmation of vested rights.
(a) Requirements to invoke. In lieu of the pro-
cedures set forth in Section 2-114.2 of the Code, a
property owner shall be entitled to utilize the
reaffirmation procedures of this section when (1)
there has been a previous determination of vested
rights pursuant to Sections 2-114.1 through 2-114.4
of the Code; (2) all "zoning action" (as defined in
Section 33-302 of the Code) required for the
development sought to be vested was in existence
at the time of the previous vested rights determi-
nation or was obtained pursuant to the vested
rights determination; and (3) subsequent to the
prior vested rights determination, the develop-
ment has received:
(1) A Class IV permit within one hundred
~enty(120)days; or
(2) A building permit within one hundred
twenty(120) days; or
(3) Approval of a tentative plat within ninety
(90) days, approval of a fmal plat within an
348
AD;\!INISTRATION
additional one hundred eighty (180) days
thereafter, and a building permit ....ithin an
additional ninety (90) days thereafter.
(b) Application. An application form to accom-
plish the purposes of this section shall be pre-
scribed by the Chairman of the DIC Executive
Council. The form shall require information rele-
vant and material to a determination of reaffir-
mation of vested rights, including but not limited
to:
(1) A detailed description of the particular
development in question;
(2) A complete itemization of each develop-
ment permit in question;
(3) A Sworn statement by the applicant estab-
lishing issuance of the prior vested rights
determination and the fulfIllment of one (1)
or more of the three (3) conditions de-
scribed in subsection (a). The sworn state-
ment shall have attached a copy of the
prior vested rights determination and doc-
umentation establishing the extent of com-
pliance with the conditions of that determi-
nation. The applicant shall submit with his
application a letter of intent explaining the
basis of his claim for reaffirmation of vested
rights.
(c) Procedu.re. Except as otherwise specified all
standards, procedures, requirements and defini-
tions of Sections 2-114, 2-114.1, and 2-114.2 shall
be applicable to applications and proceedings un-
der this section. An application for reaffirming of
vested rights shall be filed with the DIC Coordi-
nator. The DIC Coordinator shall verify the cor-
rectness of the application and sworn statement
and shall give a notice to all County departments
affected by the application. The DIC Coordinator
shall, within thirty (30) days after receiving a
complete application, forward a recommendation
to the Chairman of the DIC Executive Council.
Except as othervrise provided herein, the DIC
Executive Council shall conduct its review in
accordance with the standards and procedures of
Sections 2-114.1, and 2-114.2. If the Chairman
finds that the aforementioned conditions have
been met he shall issue a reaffirmation that the
prior determination of vested rights still remains
in effect. This reaffirmation shall describe, with
Supp. No. 19
S 2-114.4
particularity, the development in question as well
as any and all development permits which are
vested. If the Chairman finds such conditions
have not been met, he shall issue a denial of
reaffirmation.
(d) Appeal. Within fourteen (14) days after the
issuance of a reaffirmation of vested rights or a
denial of reaffirmation, an appeal of that deter-
mination to the Board of County Commissioners
may be filed pursuant to Sections 33-312 and
33-313 of the Code. The requirement to exhaust
remedies, as prescribed by Section 33-316 of the
Code, shall apply to the approval or denial of
reaffirmation of vested rights.
Such County. Commission hearing shall be after
notice in accordance with Section 33-313 of the
Code, which section incorporates the notice pro-
visions of Sections 33-31O(c), (d), (e), and (D of the
Code. The Board of County Commissioners shall
conduct a de novo hearing and, by resolution-,
issue a final vested rights reaffirmation determi-
nation pursuant to the procedures of Section
33-314 of the Code. Judicial review shall be pur-
suant to Section 33-316 of the Code.
(e) Filing period. Any application for reaffirma-
tion of vested rights pursuant to this section,
shall be filed with the DIC Coordinator within
sixty (60) days after (a) the expiration of the
original determination or a reaffirmation or mod-
ification of vested rights, or (b) the applicant's
failure to meet a specific timetable identified in
the previous vested rights determination, reaffir-
mation, or modification.
(Ord. No. 90-76,92,7-24-90; Ord. No. 95-215, S 1,
12-5-95; Ord. No. 96-127, S 1, 9-4-96)
Sec. 2-114.4. Modification of vested develop-
ment.
(a) Purpose and persons eligible to apply. An
owner of property which is the subject of (1) a
current, valid vested rights determination, (2) a
pending application relating thereto pursuant to
Sections 2-114.1, 2-114.2, or 2-114.3 of the Code,
or (3) a development order approving a develop-
ment of regional impact subject to the provisions
of Section 163.3167(8), Florida Statutes, may file
an application for modification of vested develop-
ment pursuant to this section.
349
~ 2-114.4
DADE COlJNTY CODE
(b) Application. An application form to accom-
plish the purposes of this section shall be pre-
scribed by the Chairman of the DIC Executive
Council. Such form shall require sworn informa-
tion relevant and material to a determination of
modification of vested development, including but
not limited to:
(1) A statement of the applicant establishing
either the issuance of a prior final vested
rights determination or a pending applica-
tion pursuant to Sections 2-114.1, 2-114.2,
or 2-114.3 of the Code;
(2) A detailed description of the existing or
pending vested rights determination for
the particular development in question,
including the period of time for which the
applicant claims rights are vested and any
and all conditions and limitations applica-
ble to the asserted existing or pending
application for vested right to develop;
(3) A detailed description of the proposed change
to the vested development;
(4) A detailed comparison of the impacts on
governmental facilities and services for
which the CDMP establishes level of ser-
vice standards, for both the vested develop-
ment and the proposed modified develop-
ment;
(5) A detailed comparison of the vested devel-
opment with the proposed modified devel-
opment pertaining to impacts upon the
environment; and
(6) A complete itemization of governmental
approvals (e.g. permits and resolutions)
encompassed by the vested development as
compared with those encompassed by the
proposed modified development.
In addition to all items otherwise required by the
Chairman, the applicant shall attach: (1) copies of
any applicable development permits and develop-
ment orders; and (2) any other documents which
either support or negate the relief sought by the
applicant.
(c) Standards. A development which is the sub-
ject of a current valid vested rights detennination
or reaffirmation pursuant to Sections 2-114.1,
SuPp. No. 19
2-114.2, or 2-114.3 of the Code may be modified
without the loss of vested rights upon an affirma-
tive finding that:
(1) The proposed modified development shall
not generate increased impacts on any gov-
ernmental facilities or services for which
the CDMP establishes level or service stan-
dards, when compared with the vested de-
velopment; and
(2) The proposed modified development shall
not generate increased impacts on the en-
vironment when compared to the vested
project.
If both of the foregoing standards are met, the
proposed modified development may incorporate
a land use not previously approved for the vested
project, provided that such land use does not
exceed either fifteen (15) percent of the acreage of
the vested project or fifteen (15) percent of the
gross floor area for the vested project, and further
provided that this ordinance shall not entitle the
applicant or the development to alternate or ad-
ditional land use approvals, including but not
limited to (i) zoning actions as defined by Section
33-302(1) of the Code, or (ii) a use in conflict with
the land use element of the CDMP.
(d) Notice; review of application; appeal. The
requirements of Section 2-114.2(e) relating to
notice, and Section 2-114.2(f) relating to review of
the application, shall be applicable to proceedings
under this section and shall be in addition to the
provisions of this section. Unless otherwise spe-
cifically provided herein or required as a matter of
practicality, all standards, procedures, and require-
ments of Sections 2-114, 2-114.1, and 2-114.2 of
the Code shall be applicable to applications and
proceedings under this section and shall be in
addition to the provisions hereof.
(e) Effect of modification of vested development.
If an affirmative DIC Executive Council recom-
mendation pertaining to modification of vested
development becomes a final determination, then
the particular provisions of the CDMP or the
County land development regulations specified in
the final determination shall not limit or modifY
the right of the applicant to complete the partic-
ular modified development in question. A final
determination of modification of vested develop-
350
ADMINISTRATION
ment, however, shall not limit the applicability of
any other provisions of the CDMP or any other
ordinances, rules, regulations and requirements
of Dade County. Nor shall the determination of
modification of vested development entitle the
applicant to the issuance of any development
resolution or permit not specified in the fmal
determination. The existence of a final determi-
nation of a modification of vested development
shall not have any relevance to an application for
any such development permit or development
resolution other than to provide evidence that the
development specified in said determination is
subject to vested rights in relation to CDMP
provisions or land development regulations spec-
ified in the determination.
An applicant who has obtained a determination
regarding a modified project shall not be required
to commence development of the modified project,
and may elect to commence, continue or complete
the vested project. However, if the modified devel-
opment is commenced, the development plan for
the original vested development shall stand aban-
doned together with any determination or reaffir-
mation of vested rights pertaining thereto.
(Ord. No. 90-76, 9 3, 7-24-90)
Sec. 2-115. Adoption of Comprehensive De-
velopment Master Plan-Rela-
tionship to County agencies,
boards and departments.
All County agencies, boards and departments
shall act consistently with the Comprehensive
Development Master Plan when considering and
taking action affecting land use and development
in Dade County. In accordance herewith, copies of
this ordinance, together with the Comprehensive
Development Master Plan, shall be furnished to
all County boards, departments and agencies and
shall be made a part of the public records. The
goals, objectives and policies shall be broadly
construed and shall apply to all developmental
actions and orders of all County agencies and
Boards, whether or not specifically named in said
policies. Moreover, the County Manager is autho-
rized to designate alternative or additional County
Boards, departments, and agencies to conduct
activities necessary to implement the goals, objec-
tives or policies.
COrd. No. 75-22, S 5, 3-31-75; Ord. No. 88-110, S 5,
11-29-88)
Note-See editor.s :lote following S 2-112.l.
Annotation-AO 4-59.
Supp. No. 16
9 2-115.2
Sec. 2-115.1. Adoption of Comprehensive De-
velopment Master Plan-Neces_
sity for further implementa_
tion.
It is hereby declared that the Comprehensive
Development Master Plan shall be the basis for
more specific rules, regulations and ordinances
which shall implement the policies, standards
and objectives expressed in the Comprehensive
Development Master Plan. Further, such imple-
mentation shall include and encourage the con-
tinuance of an affirmative action program for the
construction and development of low and moder-
ate income housing with Metropolitan Dade County,
Florida. The statutory requirement that a local
O'overnment shall not issue a development order
~r permit which results in a reduction in the level
of services for the affected public facilities below
the level of services provided in the comprehen-
sive plan shall not take effect until the County
has adopted land development regulations specif-
ically addressing said statutory requirement. Said
land development regulations shall be adopted
not later than the date specified in Section
163.3202, Florida Statutes, as same may be
amended from time to time.
COrd. No. 75-22, 9 6, 3-31-75; Ord. No. 88-110, 9 5,
11-29-88)
Note-See the editor's note following 9 2-112.I.
Sec. 2-115.2. Fire Protection and Rescue Ser-
vices Master Plan for the Miami-
Dade County Area-Adoption
and amendment.
The Board of County Commissioners hereby
adopts all recommendations (1 through 36) con-
tained in the Dade County Fire Protection and
Rescue Services Master Plan for the Miami-Dade.
County Area and accepts the balance of the report
Cas revised dated October 28, 1976), as a further
refmement of the Dade County Comprehensive
Development Master Plan and a component part
thereof. A copy of the Fire Protection and Rescue
Services Master Plan for the Miami-Dade County
Area as revised dated October 28, 1976, shall be
on file at all times with the Clerk of the County
Commission. The County Commission may amend
the Dade County Fire Protection and Rescue
Services Master Plan by ordinance.
COrd. No. 77-5, ~ 2, 2-1-77)
Cross reference-Miami_Dade Fire and Rescue Services
district, 9 18-24 et seq.
351
9 2-115.3
DADE CmJNTY CODE
Sec. 2-115.3. Fire Protection and Rescue Ser-
vices Master Plan for the Miami-
Dade County Area-Legal sta-
tus.
The Fire Protection and Rescue Ser....ices Mas-
ter Plan for the Miami-Dade County Area is
hereby declared to be a further refinement of the
Comprehensive Development Master Plan of Met-
ropolitan Dade County, Florida, and shall consti-
tute a guide for the orderly growth and develop-
ment of Metropolitan Dade County, Florida. In
furtherance thereof, the Board of County Commis-
sioners declares its policy and intent to evaluate
and consider the criteria established in the Fire
Protection and Rescue Services Master Plan for
the Miami-Dade County Area as an element in
future land planning and development decisions.
The failure or inability of Metropolitan Dade
County or others to meet any criteria in the plan
shall not, in and of itself, constitute grounds for
restrictions or limitations on land use or develop-
ment, or for the denial of any application for
zonmg.
Card. No. 77-5, 9 3, 2-1-77)
Sec. 2-115.4. Transportation Plan for Metro-
politan Dade County-Adop-
tion.
The Board of County Commissioners hereby
enacts the twenty-page document entitled "Long
Range Element of the Year 2005 Metro-Dade
Transportation Plan" (June 1985) as the Trans-
portation Plan for Metropolitan Dade County,
revised, hereinafter referred to in its entirety as
the "Transportation Plan" or "Plan."
Such Plan lists transportation improvements to
be implemented during the twenty-year period.
The order or priority in which such improvements
are to be made is not part of the plan, and the
establishment of or change in such order or pri-
ority by appropriate MPO action shall not consti-
tute an amendment to the plan.
Card. No. 78-55, 9 1,7-19-78; Ord. No. 85-48, 9 2,
7-3-85)
Sec. 2-115.5. Transportation Plan for Metro-
politan Dade County-Legal sta-
tus and amendment require-
ments.
The adopted Transportation Plan for Metropol-
itan Dade County is hereby declared to be ancil-
Supp. No. 16
lary to but not a part .of the Comprehensive
Development Master Plan of Metropolitan Dade
County, and shall constitute a guide for the pro-
gramming and provision of transportation im-
provements in Metropolitan Dade County. In fur-
therance thereof, the Board of County
Commissioners declares its policy and intent to
evaluate and consider this plan in all future
decisions relating to transportation improve-
ments. The failure or inability of Metropolitan
Dade County or others to adhere to this plan shall
not, in and of itself, constitute grounds for restric-
tions or limitations on land development use or
development, or for any application for zoning.
Any requested amendment to the adopted Trans-
portation Plan shall be considered by the Board of
County Commissioners only after the transporta-
tion Planning Council of the Metropolitan Plan-
ning Organi=ation, the Dade County Citizens'
Transportation Advisory Committee, the Dade
County Planning Advisory Board and the Depart-
ment of Planning, Development and Regulation
have forwarded to the County Commission their
recommendations regarding the disposition of the
requested amendment. All amendments to the
Transportation Plan shall be by ordinance.
(Ord. No. 78-55, 99 2, 3, 7-19-78; Ord. No. 85-48, 9
3,7-3-85; Ord. No. 95-215, 9 1, 12-5-95)
Sec. 2-115.6. Agricultural Land Use Plan-
Findings and legislative intent.
The foregoing declarations and findings are
found to be true and are hereby adopted as the
legislative intent of the Board of County Commis-
sioners of Dade County, Florida, and are made a
part hereof. The Board of County Commissioners
of Dade County, Florida, hereby declares and
finds that it is essential to encourage and protect
agriculture as a viable economic use of Dade
County's land. This Board declares and finds that
the agricultural land use plan provides a compre-
hensive framework to guide future planning, land
use, and land development decisions in a manner
that will minimize the adverse effects of continu-
ing urban growth on Dade County's farmland;
will help maintain a supply of land for a diversity
of viable agricultural uses; will protect and en-
hance agriculture as a resource of economic, so-
cial and environmental importance to Dade County;
352