Agenda


Vested Rights Committee		4.
Meeting Date:	08/02/2012
Issue:	Vested Rights Determination - VRD-2012-01
From:	T. Lloyd Kerr, AICP, Department Director
Organization:	Development Services

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-2012-01
Project Address:	300 HWY 95-A S
Property Reference No.:	14-1N-31-1004-001-004
Zoning District:	GBD, Gateway Business District
FLU Category:	MU-S, Mixed-Use Suburban
Vested Rights for:	Land Use
Applicant:	Lee Brantley

BACKGROUND:

Universal Fabricators, Inc. conducts fabrication and assembly operations on the subject site and is seeking to expand with the addition of a 7,800 square foot building. The current and proposed uses are permitted under the existing Gateway Business District (GBD) zoning. While the zoning allows for this operation, the current (2030 Plan) Future Land Use (FLU) category Mixed-Use Suburban (MU-S) does not. Due to this conflict, expansion of the legal non-conforming use and facility is prohibited.

The site was originally developed by Evergreen Transportation as a trucking terminal in 1992, prior to zoning in that section of the county. Evergreen received county approvals for several expansion projects in the following years, including the construction of a warehouse.

The applicant purchased the property in December of 2010 and Universal Fabricators received a change of use Development Order (DO) on January 5, 2011. As part of the development of the property the applicant applied for a rezoning from VM-1 to GBD. In testimony before the Planning Board, the applicant’s agent stated that the requested GBD zoning would be more appropriate for their proposed use. The Planning Board found the requested GBD zoning to be consistent with the FLU which at that time was split between Industrial and Mixed-Use 6. The BCC also found the request consistent and approved the rezoning on February 3, 2011. While the 2030 Plan was under State review at that time, the 2020 FLU was the official adopted plan. Changes to the proposed plan could not be made at that time.

On February 14, 2011 the 2030 Plan and new FLU map received final approval from the Department of Community Affairs and the FLU on site was changed to MU-S, creating a conflict with the recently approved rezoning. This created the legal non-conforming use status for the site.

In June of 2012 Universal Fabricators applied for a DO to allow construction of the new building, allowing for expansion of their business. In the site plan review process the conflict with the FLU was noted and the applicant was told that the addition would not be allowed based on the non-conforming status.

At this point the applicant was referred to the vested rights process and application was made on June 28, 2012.

Staff site inspection findings (07/19/2012):

1) The site contains a warehouse/transfer station, a large paved parking lot and several temporary structures.
2) There are two residences north of the site and a neighborhood beyond a wooded area to the south.

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:

The project does meet traffic concurrency.

And, in addition, one of the following criteria has been met:

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:

The previous FLU categories of Industrial and Mixed-Use 6 both allowed for fabrication and assembly operations permitted by GBD zoning. The applicant has moved ahead with development of the site based on their allowed uses at that time, receiving one DO and submitting all documentation for another. The second DO does meet all requirements except land use, with the non-conforming status preventing the addition. The change in FLU to MU-S removed the option for expansion of the business.
Staff finds that the applicant does meet 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:
The County 2030 Comprehensive Plan (CP) contains the following section regarding the determination of vested rights for land use:

FLU 1.1.13 Administrative Appeal Procedure. Consolidation of future land use categories and zoning districts on the 2030 FLUM and associated Zoning Map is intended to simplify administration while respecting private property rights. Any property owner contending that a parcel of land had greater development rights under the future land use and zoning in place prior to the adoption of the 2030 FLUM and associated Zoning Map may submit a written request to the County for a determination under the vested rights provisions of the LDC.

The applicant had greater development rights under the future land use and zoning in place prior to the adoption of the 2030 Plan and has acted in reliance on those rights.
Staff finds that the applicant meets this criterion in addition to criterion 1

STAFF RECOMMENDATION:

The rezoning to GBD with its permitted uses was approved by the county prior to the final approval of the FLU change. That FLU change, initiated by the county, did remove some development rights associated with the zoning and previous FLU categories. As the applicant has continued development based on their initial approved rights, staff recommends that vested rights for land use be granted in this case.

Attachments
Working Case File


AGENDA ESCAMBIA COUNTY VESTED RIGHTS COMMITTEE August 2, 2012- 9:00 A.M. Escambia County Central Office Complex 3363 West Park Place, Room 104