§ 11.02.02. Vested rights.

A.

Introduction. In recognition of the fact that certain land development rights of property owners may be vested with respect to the Okeechobee County comprehensive plan and this Code, this section sets forth a procedure for the determination of vested rights. Any person claiming vested rights to develop property shall make application for a vested rights special use permit pursuant to this section.

B.

Determination of vested rights.

1.

An application for a vested rights special use permit shall be approved and a vested rights special use permit issued if an applicant has demonstrated rights that are vested under the standards of section 11.02.02D. Possession of a vested rights special use permit shall enable a permittee to complete the development approved under such permit up to and through issuance of appropriate certificates of occupancy, subject to the limitations set forth in section 11.02.02F and subject to compliance with such laws and regulations against which the development is not vested.

2.

An application for vested rights special use permit may be submitted to the director of planning and development after the effective date of this Code.

3.

An application for a vested rights special use permit shall be filed by September 1, 1993. Failure to file an application within the required period will constitute an abandonment of any claim to vested rights. Judicial relief will not be available unless administrative remedies set forth in this section are exhausted, including the appeal of a vested rights determination to the board of county commissioners.

C.

Application for a vested rights special use permit.

1.

An application for vested rights special use permit shall be submitted to the director of planning and development on forms provided by the director. After receipt of the application, the director shall determine whether it is complete within 15 working days. Insufficient applications shall be returned to the applicant specifying the deficiencies. The director shall take no further action on the application unless the deficiencies are remedied.

2.

Within 20 working days after receipt of a completed application for a vested rights special use permit, the director of planning and development shall review and evaluate the application in light of all of the criteria in this section. Based on the criteria, the director shall approve, approve with conditions or deny the application for vested rights special use permit. The determination shall be in writing and shall include findings of fact for each of the applicable criteria.

D.

Standards for vested rights. An application for a vested rights special use permit shall be approved if the applicant has demonstrated all of the following:

1.

The applicant:

a.

As to vesting for the Okeechobee County comprehensive plan, owned the property proposed for development on April 2, 1992;

b.

As to vesting for any comprehensive plan amendments, owned the property prior to the date of such amendment; or

c.

Entered into a contract or option to purchase the property on or before such date; or

d.

Presents facts such that it would be inequitable, unjust or fundamentally unfair to deny an application for a vested rights special use permit where the applicant acquired ownership after such date; and

2.

There was a valid, unexpired act of an agency or authority of Okeechobee County other than an existing future land use map designation or an existing zoning designation upon which the applicant reasonably relied in good faith; and

3.

The applicant, in reliance upon the valid, unexpired act of government, has made a substantial change in position or has incurred extensive obligations or expenses; and

4.

It would be inequitable, unjust or fundamentally unfair to destroy the rights acquired by the applicant. In making this determination, Okeechobee County shall consider a number of factors, including but not limited to:

a.

Whether construction or other development activity has commenced and is continuing in good faith.

b.

Whether the expense or obligation incurred cannot be substantially utilized for a development permitted by the Okeechobee County comprehensive plan and this Code.

5.

The following are not considered development expenditures or obligations in and of themselves:

a.

Expenditures for legal and other professional services that are not related to the design or construction of improvements.

b.

Taxes paid.

c.

Expenditures for acquisition or financing costs of the land.

E.

Presumptive vesting.

1.

Final development orders.

a.

Notwithstanding the criteria set forth in section 11.02.02D above, possession of a valid unexpired final development order shall presumptively vest the development approved under such permit:

(1)

For the purposes of the comprehensive plan if the final development order was issued prior to April 2, 1992;

(2)

For the purposes of this Code adopted to implement the plan and the concurrency provisions of article V if the final development order was issued prior to the effective date of this Code;

(3)

For purposes of any comprehensive plan amendments, if the final development order was issued prior to such amendments.

b.

Such valid approvals or permits shall, in and of themselves, constitute sufficient evidence of compliance with the standards set forth in section 11.02.02D. Verification of such approvals or permits shall be made by the director of planning and development. If verified, the director shall issue the vested rights special use permit.

2.

Building permit applications for a single-family residence on a lot of record. Building permit applications for a single-family residence on a lot of record shall be presumptively vested from the provisions of the comprehensive plan, the land development code as to density and use but not as to the concurrency provisions of article V. A building permit application for a single-family residence on a lot of record shall not be subject to the limitations set out in section 11.02.02F.

3.

Developments of regional impact adopted on or before April 2, 1992.

a.

Any lawfully issued and effective final development order for a development of regional impact adopted on or before April 2, 1992 shall automatically qualify for a vested rights special use permit unless the development order:

(1)

Indicates otherwise;

(2)

Expired according to its terms;

(3)

Has not expired according to its terms and construction authorized by the development order has not commenced within five years of the adoption date of the development order; or

(4)

Fails to address an issue listed in the development order, in which event the provisions of the comprehensive plan and this Code shall apply only to that issue that was not addressed but shall not apply to other issues specifically addressed in the development order; or

(5)

Is invalidated in whole or in part.

b.

In lieu of section 11.02.02F1 and 2 below, such vesting shall continue until development approved in the development order is complete or until the development order has expired or is invalidated. Any substantial deviation after April 2, 1990 shall cause those development rights that are the subject of such deviation to become subject to the comprehensive plan and this Code.

c.

The approved final development order for a development of regional impact shall, in and of itself, constitute sufficient evidence of compliance with the standards set forth in section 11.02.02D. Verification of such approvals or permits shall be made by the director of planning and development. If verified, the director shall issue the vested rights special use permit.

F.

Limitations on determination of vested rights.

1.

Upon the expiration of five years after the issuance of a vested rights special use permit, the issuance of development permits for the property subject to the vested rights special use permit shall be subject to the requirements of all current regulations. In the foregoing, the vested rights special use permit may set forth an extension of the five-year period upon finding by the director of planning and development or the board of county commissioners of the necessity for an extension of such time period.

2.

Commencing with the expiration of two years after the issuance of a vested rights special use permit, an annual report shall be submitted to the director of planning and development by the developer or owner of the subject property. Annual reports shall be submitted on forms provided by the director and shall be due on each annual recurrence of the permit issuance date. The annual report shall evidence that development has commenced and is continuing in good faith. Significant physical development or receipt by the applicant of one or more of the following types of permits or approvals in each reporting year shall constitute sufficient evidence for the subject year:

a.

Building permit;

b.

Site plan approval or not more than one renewal of each site plan approval;

c.

Final plan approval for a planned development;

d.

Final plat approval;

e.

Such other permits or approvals as shall evidence that development has commenced and is continuing in good faith.

Failure to proceed with significant physical development activity or to obtain one of the foregoing approvals or permits in any reporting year, or failure to file an annual report when due, shall cause the development subject to the vested rights special use permit to become subject to the requirements of the concurrency provisions of article V. A determination by the director of planning and development of a permittee's failure to proceed may be appealed to the board of adjustment. In addition, the director may grant an extension of time to file the required annual report upon showing by the applicant, or successor, that strict enforcement would cause undue hardship because of circumstances beyond the applicant's or successor's control. Requests for extensions shall be submitted to the director of planning and development 30 days prior to the due date for the annual report.

3.

All development subject to a vested rights special use permit must be consistent with the terms of the development order upon which the vested rights special use permit was based. Any substantial deviation from a prior approval, except a deviation required by governmental action, shall cause the development involved to be subject to the policies and implementing decisions and regulations set forth in all current regulations. The director of planning and development shall determine whether a proposed change is a substantial deviation in light of the following criteria:

a.

Any change in use or intensity of use that would increase the developer's impacts on those public facilities subject to article V by more than five percent shall be presumed to be a substantial deviation.

b.

Any change in access to the project that would increase the development's transportation impacts by more than five percent on any road subject to article V shall be presumed to be a substantial deviation unless the access change would result in an overall improvement to the transportation network.

c.

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

d.

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