§ 2-114.2. Supplemental optional vested rights procedure  


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  • (a) Purpose. Any property owner who has received 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 developmental permits or developmental resolutions, as defined in Section 2-114.1(b), for the purpose of accomplishing a specifically described development, notwithstanding provisions of the Miami-Dade County Comprehensive Development Master Plan (CDMP) or County land development regulations.

    (b) Standards, procedures, requirements and definitions. Unless otherwise specifically provided, 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 Miami-Dade County, Florida (Code).

    (2) Continuing in good faith. Continuing shall mean a progression of steps taken to proceed with and complete the development 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 deceitful 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 any official action of local government having the effect of permitting the development of land without any further local government action, which may include, but is not limited to, a building permit, zoning permit, subdivision approval, rezoning, certification, special exception, or variance. For purposes of this section, a development permit shall be deemed a final local development order within the meaning of Section 163.3167(8), Florida Statutes.

    (5) Land development regulations shall mean the County's service concurrency management program contained in Chapter 33G of the Code, as the same may be amended from time to time.

    (c) Application. An application form to accomplish the purposes of this section shall be prescribed 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 development in question, including but not limited to (a) authorized land use; (b) density or intensity of development; (c) staging, phasing or timing of development; and (d) other conditions of development or mitigation that are specific to prior development permits;

    (2) An itemization of all actions or omissions of Miami-Dade County allegedly relied upon, together with specific acts of reliance pertaining to each;

    (3) A complete itemization of government approvals to the extent practicable (e.g. permits 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 subsequent to December 6, 1988 which, if applied, would allegedly abrogate vested rights;

    (5) The period of time for which the applicant claims rights are vested; and

    (6) Any and all conditions and limitations applicable to the claimed vested development 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 Miami-Dade County under subsection 2-114.2(d)(1), the applicant shall submit all available documentation showing such reliance, including bills, statements, copies of canceled checks, and a complete itemization and 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 parties 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 of Miami-Dade County occurring prior to December 6, 1988 as related to the CDMP and prior to July 1, 1989 for those matters related to the County's Service Concurrency Management Program, Chapter 33G, Code, and (3) has made such a substantial change in position or incurred such extensive obligations and expenses to his detriment that it would be highly inequitable to deny relief; or

    (2) The applicant has the right to complete development pursuant to Section 163.3167(8), Florida Statutes, because a development permit issued from Miami-Dade County, and development has lawfully commenced on the property for which the applicable development permit has been issued 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 because 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 Miami-Dade County, which publication shall include the time and place of hearing before the DIC. A courtesy notice containing general information 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 described in the application, or such greater distance as the DIC Coordinator may prescribe; provided, however, that failure to mail or receive such courtesy notice shall not affect any action or proceeding 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 considered 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 may be seen by the public at reasonable time and hours within or adjacent to the offices of the Department of Planning and Zoning.

    (f) Review of application by DIC Executive Council.

    (1) An application filed pursuant to this section shall be reviewed by the DIC Executive Council at a meeting of the council. The council, board, agency or official having 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 addressing the application as it relates to the function of said council, official, agency or board. Where the issuance of a development resolution or permit encompassed by 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 reporting to such board. Except as otherwise provided herein, the DIC Executive Council shall conduct its review in accordance with the standards and procedures of Section 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 determination, and the DIC Coordinator shall request any additional information needed. If the DIC Coordinator determines that the information in the application is not sufficient, 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 declines to provide the requested information, the DIC Executive Council will begin the recommended vested rights determination. If the applicant does not respond to the request for additional information within ninety (90) days, then the application shall be deemed to be withdrawn. If the applicant provides requested additional information, the DIC Coordinator shall, within fifteen (15) days from receipt of the additional information, determine whether the additional information furnished is sufficient 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 received, the application will be considered sufficient and the applicant will be so notified.

    (3) The DIC Executive Council shall review the completed application and any additional information provided. It shall consider all written documents, written statements, 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 application. The DIC Coordinator may solicit and shall accept submission of relevant information from any other appropriate departments or agencies of Miami-Dade County. The DIC Coordinator may solicit and shall accept information from any third persons who may possess factual information relevant 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 information. The applicant shall be given an opportunity to address the DIC Executive Council 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 receiving notification that additional information requested pursuant to subsection (f)(2) will not be supplied, the DIC Executive Council shall give notice and review the application in accordance with the procedures contained 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 Executive Council. A recommended vested rights determination shall contain findings of fact and conclusions supporting the said recommended determination.

    (g) Vested rights determination. If the recommended determination of the DIC Executive Council 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)(1)—(6). Additionally, the recommended determination shall specify what development permits or development resolutions are vested in relation 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 resolutions other than those specified in the recommended determination, nor do vested rights apply against the application or enforcement of any provisions of the CDMP or the County's land use regulations other than those specified in the recommended determination. The vested rights determination shall state that the vested rights determination may be reconsidered if it is subsequently found that the determination was based upon substantially inaccurate information provided by the applicant.

    The DIC Executive Council's recommended determination shall be promptly transmitted to each County official, agency, board or department having authority to issue any development permit or resolution encompassed by the recommended vested rights determination.

    Official public notice of the issuance of the recommended 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 and Zoning. If the recommended determination of the DIC Executive Council pertains in any way to a request for a developmental resolution or any other matter over which the Board of County Commissioners may subsequently have original (nonappellate) jurisdiction, the Executive Council's recommended 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 Commissioners, and shall be noticed and heard pursuant to the procedure of subsection (h) below. With regard to any application not encompassed by the preceding sentence, the determination of the Executive Council shall become final unless the same is appealed pursuant to the provisions of subsection (h) below.

    (h) Appeal, exhaustion of administrative remedies and judicial review. An appeal of a recommended determination of the Executive Council may be taken to the Board of County Commissioners 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 incorporates the notice provisions of Sections 33-310(c), (d), (e), and (f) of the Code. The Board of County Commissioners shall conduct a de novo hearing and, by resolution, issue a final vested rights determination pursuant to the procedures of Section 33-314 of the Code. Section 33-316 of the Code (Exhaustion of Administrative Remedies, Hearing 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 Section 2-114.2, shall be filed with the DIC Coordinator 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 subsequently enacted land development regulation.

    (j) Effect of vested rights determination. If an affirmative vested rights determination becomes final, then the particular provisions of the CDMP or County land development regulations specified in the final determination shall not limit or modify the vested right of the applicant to complete the particular project in question. However, such a final vested rights determination shall not limit the applicability of any other provisions of the CDMP or any other ordinances, rules, regulations and requirements of Miami-Dade County. Nor shall the vested rights determination entitle the applicant to the issuance of any development resolution or permit not specified in the final 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 mitigation 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 infrastructure, 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 determination the DIC Executive Council may include definite criteria and requirements which, if satisfied, will establish conclusively that the applicant has continued in good faith to develop after the date of the vested rights determination. These criteria and requirements shall include one (1) or more of the following:

    a. A reasonable deadline for commencement of physical development, if such development has not commenced as of the date of the vested rights determination;

    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 activities;

    c. Termination dates, which shall reasonably reflect the time required to complete the phase in question or to complete the development, as applicable, and which may take into consideration the requirements of lenders while diligently enforcing security interests; or

    d. Any other appropriate development requirements set forth in prior development permits.

    An applicant's failure to satisfy such criteria and requirements will not necessarily establish that applicant has not continued in good faith to develop the project. However, the vested rights determination for the project will be suspended and all applications for development permits will be subject to the CDMP and applicable land development regulations unless and until the applicant has received a further determination of vested rights pursuant to paragraph (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 anniversaries of the vested rights determination, which include such information as the development 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 conditions 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 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 subsequent determination will be limited solely to a consideration of applicant's development activities and other matters occurring 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 1, 1989.

(Ord. No. 90-76, § 1, 7-24-90; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 1, 9-4-96; Ord. No. 98-125, § 1, 9-3-98)