|
Summer 2016
IN THIS ISSUE
d&G Lawyer News
Educational Workshops
Interested in a seminar on a recurring legal issue confronting your company?
Contact our event coordinator,
to learn more about our educational workshop options.
Visit Our Site:
101 E. Kennedy Blvd.,
Suite 2000
Tampa, FL 33602
813-229-2775
|
When are Rights Vested in a Platted Development?
By: Kristin Melton
It happens often. Developers purchase or obtain plats for property, but wait for a period of time before moving forward with development. During that time, the local government with jurisdiction over the property may adopt changes to its comprehensive plan or land development code that impact the ability to develop the property. Developers are left wondering whether they have vested rights in the property. This article provides a brief summary of when vested rights may occur and what additional steps a developer should take to protect their ability to develop property.
Recordation of a plat alone is not sufficient to establish vested rights. Monroe County v. Ambrose at 866 So.2d 707, 710 (Fla. 3d DCA 2003).i In Ambrose, the court held that a series of plats recorded between 1924 and 1971 did not automatically vest development of those properties and preclude application of subsequent environmental development restrictions for properties in the Florida Keys. Florida common law provides that vested rights may be established only when a property owner or developer has (1) in good faith reliance, (2) upon some act or omission of government, (3) made such a substantial change in position or has incurred such extensive obligations and expenses (4) that it would make it highly inequitable to interfere with the acquired right. Id. It would be unconscionable to allow landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land. Id. at 866 So.2d 711 (landowners who platted and recorded their property but failed to change their position in furtherance of developing the land had no vested rights to develop their property); See also Collins v. Monroe County, 118 So.3d 872 (Fla. 3d DCA 2013)(no vested right in development where landowners did not take meaningful steps toward the development of their respective properties or seek building permits during their sometimes decades-long possession of their properties). Landowners who do not have vested rights will be subject to subsequently enacted land regulations while subsequently enacted land regulations do not apply to the landowners who are determined to have vested rights. Id. at 866 So.2d 712.
In Galleon Bay Corp. v. Board of County Com’rs of Monroe County, 105 So.3d 555 (Fla. 3d DCA 2002), Galleon, over the course of several decades, proceeded with numerous efforts to improve its land including, but not limited to, having its subdivision platted, having the zoning district changed, extensively negotiating with the County, and revising its plat. In its evaluation of the inverse condemnation claim brought by Galleon, the Third DCA extensively cited a circuit court order upholding a hearing officer’s determination that Galleon had vested rights to develop the property such that the property met the “development has commenced and continued” prong of the County’s 2010 Comprehensive Plan grandfathering provision allowing landowners to file applications for administrative vested rights determinations, and ultimately either receive building permits or just compensation.
The hearing officer determined that to require Galleon to conform to the land development regulations adopted after the plat was approved would be highly inequitable and unjust given the substantial change and extensive obligations and expenses Galleon incurred. Galleon at 105 So.3d 561. The Third DCA quoted the circuit court decision holding “A local government may not whittle away a landowner's property rights in exchange for meaningless land use approvals” and “Plat approval was merely the first step in an overall project to build infrastructure, sell the lots and/or build homes thereon.” Galleon at 105 So.3d 561-563.
When determining vested rights and the claim for inverse condemnation, the court considers the plat approval obtained by the landowner for the entire property. When property is zoned and planned as one project, there are vested rights in zoning for the entire project without any showing that costs incurred by landowner in planning and beginning construction could be exclusively attributed to each and every part of the overall project. Equity Resources, Inc. v. County of Leon, 643 So.2d 1112, 1119 (Fla. 1st DCA 1994). For purposes of equitable estoppel, it is sufficient to demonstrate that a substantial and not a de minimis portion of the overall expenditures facilitated and benefitted future phases of the planned project. Id. A citizen is entitled to rely on assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds. Town of Largo v. Imperial Homes Corp, 309 So.2d 571, 573 (Fla. 2d DCA 1975). There is no requirement that a landowner must have either obtained a building permit or made physical changes in land in reliance on existing zoning in order for the doctrine of equitable estoppel to be invoked to preclude a municipality from making a zoning change. Id.
Applying this case law, it is clear that a developer cannot simply plat their property and obtain a vested right in the land development regulations in existence at the time. Instead, the developer must take some meaningful steps towards development through the filing of development permits with the local government that would constitute a substantial change in position or be considered extensive obligations and expenses towards development of the property in reliance on some action by the local government. Should the developer subsequently split and sell the property, a subsequent purchaser of property must demonstrate some independent act of reliance on a promise made by the government to assert a claim for equitable estoppel absent the transferee’s establishment of. Equity Resources at 643 So.2d 118 (citing City of Tamarac v. Siegel, 399 So.2d 1124 (Fla. 4th DCA 1981); Jones v. First Virginia Mtg. & Real Estate Inv. Trust, 399 So.2d 1068 (Fla. 2d DCA 1981)(holding that mortgage company, as owner of the property, had a legally recognizable interest and therefore had standing to bring the equitable estoppel action, but nonetheless failed to meet the substantive elements of estoppel to demonstrate its own independent reliance on the local government’s zoning action)).
If you have any questions regarding your development rights, please feel free to contact Kristin Melton at 813-229-2775 or kmelton@dgfirm.com.
_________________________________
i The majority rule outside of Florida is that subdivision approval by itself does not vest development of a lot that has become substandard by change of regulation. L.M. Everhart Construction, Inc. v. Jefferson County Planning Commission, 2 F.3d 48 (4th Cir. 1993) (“The Company makes much of the fact that the Planning Commission ‘approved’ the subdivision plat for [the property] in 1985 and argues that the approval created a vested right to [develop a section of the property] as approved, i.e., without side setback requirements. This argument is tantamount to an assertion that, once approved, a subdivision plat is exempt from all future zoning and subdivision regulations. We can find no court that has adopted such a broad conception of vested rights .... The very cases upon which the Company relies recognize the majority rule that even the issuance of a building permit—a part of the construction process that occurs long after the approval of a subdivision plat— does not vest rights against future changes in zoning regulations.”); Bianchi v. City of Cupertino, 944 F.2d 908 (9th Cir. 1991) (plat recordation without additional reliance did not establish vested rights); In re McCormick Management Co., mc, 547 A.2d 1319 (Vt. 1988) (holding that a developer did not have vested rights when it waited 15 years after the date of filing its plat and adoption of the town's zoning ordinance to develop the antiquated lots); Gisler v. Madera, 112 Cal. Rptr. 919 (Cal. Ct. App. 3d 1974) (“[I]n the absence of expenditure of funds or improvement of the subdivision properties, appellants acquired no vested right by the mere recordation of the subdivision map.”); Goslin v. Zoning Board of Appeals of City of Park Ridge, 351 N.E. 2d. 299 (Ill. App. 1976) (“The mere fact that the property was platted prior to the enactment of the zoning ordinance does not give the purchaser any right to develop what has since become an antiquated lot”); and Showers v. Town of Poestenkill Zoning Board of Appeals, 176 A.D.2d 1157 (N.Y. App. Div. 1991) (denying developer's petition to permit development of antiquated lots where developer failed to show sufficient reliance on prior plat and where developer could assemble several antiquated lots in a (manner that complied with code requirements).
|
