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4. A.
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| Vested Rights Committee |
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| RECOMMENDATION: |
That the Vested Rights Committee review and make recommendation to the Board of County Commissioners (BCC) on the following Vested Rights case:
| Case No.: |
VRD-2015-01 |
| Project Address: |
7253 Plantation Road |
| Property Reference No.: |
30-1S-30-4101-010-002 |
| Zoning District: |
C-2, General Commercial and Light Manufacturing District (cumulative) |
| FLU Category: |
C, Commercial |
| Vested Rights for: |
Land Use |
| Applicant: |
David A. Theriaque, Agent for CEJ South, Inc. |
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| BACKGROUND: |
On December 20, 2011 Mr. Christian Jensen requested zoning verification for the subject site with a proposed use of crematory/funeral home. Development Services staff verified the site as having C-2 zoning and that the requested use would be allowed based on initial review. As the prior use on site was a restaurant, the proposed change of use would need to comply with the County site plan review process.
Based on further staff review of the proposed use, it was determined that the crematory would not be allowed in C-2 zoning because it was not a permitted use or Conditional Use at that time. Mr. Jensen was contacted by staff in February 2012 and subsequently applied for a Planning Board Interpretation of the Land Development Code (LDC) regulation.
At the February 13, 2012 Planning Board meeting, the Board determined that crematoriums located within a funeral home are not a permitted use in C-2 zoning (Planning Board Interpretation # 2012-01).
Based on discussion with staff regarding appeal options, the property owner (CNL Funding) applied for a Change of Use from restaurant to funeral home with crematory. On March 7, 2012 the application was denied by staff based on Planning Board Interpretation # 2012-01. On March 12, 2012 the applicant filed for an Administrative Appeal of the Change of Use permit denial.
At the April 18, 2012 Board of Adjustment (BOA) meeting, the Board voted 4-2 to reverse the staff denial of the Change of Use permit. Because of this decision, the owner of the adjoining property to the west, Relax Hospitality LLC, filed a Petition for Writ of Certiorari with the Circuit Court.
On December 2, 2013, Judge Terrell quashed the BOA's decision and remanded the issue back to the County. |
| CRITERIA FOR VESTED RIGHTS: |
A. An owner shall be entitled to a Determination of Vested Rights only if through substantial competent evidence it can be established that the proposed use of the property meets the concurrency provisions of Article 5 at the time of vesting.
FINDINGS:
This proposed use does meet traffic concurrency. |
| CRITERION 1: |
The project was authorized pursuant to a County Development Order, or equivalent issued on or before the effective date of this code, or a pertinent amendment thereto, and the development has commenced and is continuing in good faith. In a claim based upon this criterion, the owner must produce evidence of actions and accomplishments that substantiate timely and lawful progression towards the completion of the intentions and plans documented in the original order, or equivalent. In a claim based upon this criterion, the rights to which the owner may be vested is a continuation of the original order, or equivalent.
FINDINGS:
Mr. Jensen is not pursuing the vested rights claim under this criterion. |
| CRITERION 2: |
The owner is determined to have acquired rights due to good faith reliance on an act of commission or omission of the County which has caused the owner to make such a substantial change in position or to incur such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights acquired. In a claim based upon this criterion, the owner must document, and the County must verify, the obligations and expenses that are in jeopardy. The owner must produce evidence of actions and accomplishments that substantiate timely and lawful progression towards the completion of the intentions and plans that have been jeopardized. Evidence including, but not limited to, that which demonstrates that such activity has not progressed in such a manner may be sufficient to negate a finding of good faith on the part of the owner and therefore invalidate the claim to vested rights.
FINDINGS:
Mr. Jensen did seek zoning verification from planning staff and he was given an initial affirmative answer regarding the crematory use (Applicant's exhibit "A"). He has also supplied various exhibits related to the purchase of the property and expenses he incurred moving forward with his project. |
| STAFF RECOMMENDATION: |
Mr. Jensen sought initial County approval through the zoning verification form filled out by staff. That form does have a handwritten note stating that a crematory is allowed, but that note also says that follow up with the Development Review Committee (DRC) will be needed. With commercial projects, it is not uncommon for additional issues to be discovered in the DRC process. Those issues can cause an owner to make changes to their project or change the approval of the County. That is one of the reasons the zoning verification form contains a disclaimer for the applicant to sign. The disclaimer is specific that the form itself does not imply or confer development rights. Those rights are granted through the issuance of a permit, something Mr. Jensen did not seek at that time.
Until the issue was settled and a permit issued for a crematory, any actions related to the crematory use were not approved and any expenses related to the crematory use are the responsibility of Mr. Jensen, not the County. The expenses related to the funeral home itself are not in question as that use is approved and permitted by the County.
Staff finds that Mr. Jensen does not meet the required standard to be vested with the land use of a crematory on the site and denial of Vested Rights is recommended. |
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