Item 8G - Appeal of VarianceAGENDA ITEM:
DATE:
SUBMITTED BY:
BACKGROUND:
BUDGET:
CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM #8G
SEPTEMBER 14, 2015
Appeal of variance for relief from Sections 24-64 and 24-88{b),
granted July 21, 2015.
September 9, 2015
~ Dan Arlington, Building Official for Jeremy Hubsch, Building and
Zoning Director.
A variance was granted for relief from Section 24-88{b), allowing
one side of a two-unit townhouse building, 88 Ocean Boulevard,
to change the type of exterior wall covering. 88 Ocean now has a
different appearance than the adjoining townhouse, 90 Ocean
Boulevard. The neighbors in 90 Ocean Boulevard are appealing
that decision.
Section 24-88
(b) Adjoining two-family or townhouse dwellings units shall be constructed of
substantially the same architectural style, colors and materials.
N/A
RECOMMENDATIONS: Recommend hearing the appeal as soon as possible to allow the
unfinished building to be completed.
Attachments: Order Granting Variance, including Exhibit A.
Appeal letter.
REVIEWED BY CITY MANAGER. __ ~_:::_....t.....::....,-....::..~~~=~~~~!::...!o::-..:::...__ _______ _
AG E NOA ITE M #8G
S EPTEMlllf.J{ 14,201 5
City of A tla nli c Jlcach
Bu ild ing And Zo ning Dept.
800 Se minole Roa d
AU ant ic BcHch, Fl orida 32233
Telephone (904) 247-5826
fl ax (9 04) 247-5845
htt p://www.coa b.us
Order of the Community Development Bo ard
APP LI CANT:
FILE NUMBER:
DATE OF PUBLIC HEAR ING:
Dr. Dav id Doward
88 Ocea n Bou levard
Atlantic Beac h, Fl 32233
15-ZVAR-1 035
Jul y 21, 2015
ORDER GRANTING VARIANCE
The ab ove r ef ere nced applica nt req ues t e d a zo ning vari ance as pe r mitted by Sec tion 21!-64 fo r r elief
from the Sec tio n 24 -88(b ) re qui rement fo r ad j oining t ownho use dwe lli ng units to be co nstru ct ed of
substa ntially the sa m e architectural styl e, co lo rs and m at e r ia ls at Atl antic Beac h Subdivision "A" South
half o f Lot 6 Bl ock 34 (aka 88 Ocean Bo ulevard).
On July 21, 2015, a publ ic hea ri ng was he ld and sa id re q uest was consider ed by the City of Atlantic
Beac h Community Develo pm ent Boa rd . Havin g co nside r ed the appl ica t ion, su p po r t ing docume nts an d
co mments by st aff, th e appl icant, an d membe rs o f the pu blic, t he Co mmun ity Deve lopment Boa rd
GRANTED t he v aria nce w it h a cond ition, fi nding that the re ques t is consistent w ith t h e provisio ns of
Sect io n 24-6 4(d) of t he Lan d Deve lop m en t Reg ula ti ons estab lis h ing grounds for app rova l of a varia nce as
f o llows:
1. Exce ptiona l ci rcum st ances preven ti ng th e reasonab le use of the propert y as com pared to oth er
properti es in t he area .
The co nditio n Is as f ollows:
1. Th at t he com pl et ed co nstru ctio n be co nsiste nt w ith the at tac hed drawi ng t h at is lmown as
Ex hi bit "A" and that was provided by the appl ica n t t o th e b oa rd .
Appea l o f a fin al decisi on o f t he Com munity Develop m ent Boa rd m ay be made to t he Ci ty Comm iss ion
by any adve rse ly affec t ed pc rso n(s). Such t~pp ea l sha ll be fli ed In writing with th e Ci ty Cle rk within t hir ty
(30) d ay s a rL er re ndit ion o f this Orde r . The appellan t shall p rese n t t o the City Cle rk a pet itio n duly
ve rifi ed, se tting forth that the decis ion be ing appea led is in co nflict w ith or in viola tion of Chapter 24,
Zoni ng, Subdivision and La nd Deve l opme nt Reg ulatio ns for t he City o f Atlantic Beach, i n whole or In
p art, and spe cifyin g t he ground s of the co nflict or violation. The pe ti t io n shall be prese nte d t o the Ci ty
Com missio n w ithin t hi r ty (30) days after the filing of t h e appe al with t he City Cieri<.
Th e undersigned ce rtif ies t hat th e a bove Order of the Comm unit y Deve lopme nt Board is a t r ue a nd
co r rec t renditio n o f t h e Ord er ado pted by sa id Boa rd as appears in t he r ecord o f the Cornmunit y
Deve lopment Boa rd min utes.
DATED THIS 5TH DAY OF AU GUST 2015 •
. 1w~11JIJ. "tte~f{u bsc h
Build in g and Zo nin g Director
II I I I
'·-~
VERIFIED PETITION OF APPEAL FROM
ORDER GRANTING VARIANCE
VARIANCE APPLICANT: DAVID DOWARD
AGENDA ITEM #8G
SEPTEMBER 14, 2015
APPELLANT AND ADVERSELY AFFECT PERSONS: SASWATA AND ANJNA ROY
FILE NUMBER: 15-ZV AR-1035
DATE OF PUBLIC HEARING: JULY 21,2015
DATE OF ORDER GRANTING VARIANCE: AUGUST 5, 2015
Appellant's and adversely affected persons, Saswata and Anjna Roy, pursuant to Section
24-49 of the Atlantic Beach Code of Ordinances hereby file this appeal of the Community
Development Board's Order Granting Variance and in support thereof state:
On July 21, 2015, the Atlantic Beach Community Development Board ("CDB") convened
to hear David Doward's ("Applicant") request for a zoning variance pursuant to Section 24-64 of
the Atlantic Beach Code of Ordinance. After considering the application; supporting documents;
comments by staff, the Applicant and members of the public, the CDB in a 3-2 ruling, granted the
variance citing 24-64(d) ofthe Land Development Regulations.
A historical overview regarding the two unit townhouse located at 88 Ocean Boulevard
and 90 Ocean Boulevard ("Townhouses") is pertinent to consider prior to discussing how the CDB
ruling is violative of and in direct conflict with both Sections 24-64 and 24-88 of the Atlantic
Beach Code.
As addressed during the July 21, 2005 hearing, the townhouses were constructed in 2006
and made entirely from stucco. There were construction defects that resulted in litigation by both
owners of the Townhouses; said litigation was ultimately settled in or around November, 2014.
The Applicant was the junior purchaser of the townhouse located at 88 Ocean Boulevard and
AGENDA ITEM #8G
SEPTEMBER 14, 2015
made his purchase amidst of the litigation. Applicant was well aware that both units were
constructed from stucco and that litigation was pending at the time of his 2013 purchase. Applicant
is a prominent physician at Jacksonville Otthopedic Institute and possessed both the business
acumen and the financial resources to engage in the due diligence that is required when purchasing
a residential property embroiled in litigation. In fact, Applicant intervened in, and obtained a
sizeable settlement in late 2014 for the constmction defects related to his property. As palt of the
aforementioned litigation, Brett D. Newldrk, principal engineer at ALTA Engineering Company,
after independent inspection of both properties, authored a repmt ("ALTA report") detailing the
issues and the suggested construction materials to be utilized in any future renovation of the
Townhouses. That ALTA report concluded that the reapplication of stucco was tlte ultimate
cure to the structural defects on the Townhouses. The ALTA repmt was submitted by the
Applicant to the CDB and is available for the Atlantic Beach City Commission's review and
consideration.
Applicant hired Bosco Building Contractor to renovate his propetty. Consistent with his
vexatious nature, Applicant later fired Bosco Building Contractor and hired a new contractor.
Although his new contractor obtained an interior remodel permit, the new contractor failed to
obtain the necessary permitting for the siding to the exterior. When questioned about her failure
to obtain the necessary permitting, the contractor stated that she had spoken with the clerical staff
and attributed her negligence to a misunderstanding. It should be noted that the Applicant failed
to present any testimony about who the contractor spoke with and what was said. In response,
Atlantic Beach Building and Zoning Planner Derek Reeves ("Mr. Reeves") testified that the City
issues between 30-35 permits annually and that one-hundred percent of the applicants meet with
Verified Petition of Appeal From Order Granting Variance, Applicant: David Doward, File No.: 15-ZVAR-1035
Page 2 of 8 ,''
AGENDA ITEM #8G
SEPTEMBER 14, 2015
staff not clerical staff. The issuance of the variance by the City of Atlantic Beach based upon
Applicant's contractor's negligence has far reaching consequences for the City of Atlantic Beach
and sets a dangerous precedence. It is foreseeable that future variance applicants, rumed with the
knowledge behind the issuance of the instant variance, can also represent that they too, had an
ambiguous and unsubstantiated conversation with City of Atlantic Beach clerical staff,
misunderstood the petmitting requirements, and as a result commenced construction/renovation
without the proper permitting thereby shifting the onus from the contractor to be knowledgeable
about Atlantic Beach Code of Ordinance and the requisite permitting requirements to the City of
Atlantic Beach to issue a vruiance based upon an alleged misunderstanding between a contractor
and the City of Atlantic Beach clerical staff. The implications for the City of Atlantic Beach are
far-reaching and problematic.
Applicant next submitted detailed documents and testimony of his arduous plight resulting
from his renovation assigning new blame; this time it was not the City of Atlantic Beach clerical
staff, the new culprit in Applicant's construction conundrum was the villain and culprit stucco.
From the outset of the July 21,2015 hearing, City of Atlantic Beach staff properly advised the
CDB that stucco is an accepted building material and should work when properly installed. The
Applicant's architect presented detailed testimony of an intricate drainage plane that Applicant's
team of expetts had constructed to alleviate the water intrusion issues at 88 Ocean Boulevru·d. It
should be noted and Applicant admitted, that stucco was never applied to the newfangled drainage
plane.
Finally, the Applicant also presented the testimony ofW. Ronald Woods, P.E. ("Woods"),
of Woods Engineering, who is a well known expert witness in construction litigation cases.
Verified Petition of Appeal From Order Granting Variance, Applicant: David Doward, File No.: 15-ZVAR-1035
Page 3 of8
AGENDA ITEM #8G
SEPTEMBER 14, 2015
Without any independent inspection of the undersigned's townhouse located at 90 Ocean
Boulevard, Woods, began to testify to the CDB about the habitability and renovation of90 Ocean
Boulevard.1 This was Applicant's attempt at throwing out the proverbial "red heiTing" to the CD B.
Rather than focusing on the issue of the reapplication of stucco, Woods successfully diverted the
CDB's attention to the alleged habitability and alleged issues of 90 Ocean Boulevard and also
vilified the lack of licensure among subcontractors who apply stucco. Fortunately, for the
undersigned, however, Woods did concede, approximately five (5) times that the "code allows for
stucco"2 ; "details for construction [with stucco] need to be specific they have to tell the
subcontractor how to do this waterproofing interface or it does not work. Then they [contractor]
have to follow it"3 ; "Drainage plane has to be essentially perfect [with stucco application]; it has
to protect the wood and allow water to come in and slide down the plane and come back out and
if it is done properly, that can be done. But it requires a lot of effort and it usually requires
somebody looking at the subcontractor saying 'no you are not doing that correctly, you have to do
it this way;' "4 "if it [stucco] is done well, and it is done properly, it lasts for many years but the
difficulty is getting it done properly"5; "As long as it [stucco] is done properly with the divisions
of the fore lines correctly then it can be done."6 To reiterate again, the CDB was presented
1 On July 7, 2014, and again on August 10, 2015 the undersigned retained House Authority Inspection Service, LLC
who concluded that there was no mold contamination present. On August 10, 2015, air samples were taken from the
3rd level bedroom and fi:om the 2nd level family room. Tile air sample results concluded that "the air sample did
not detect the presence of indoor mold growth ill the tested area at the time of the sampling". Furthermore, the
illspector utilized his IR Camera and Moisture Meters in concludi11g that there was no eviflence of moisture
present.
2 Atlantic Beach Community Development Board. (2015, July 21). Meeting of the Community Development
Board: Zoning Variance Rehearing, File No.: 15-ZVAR-1035. Testimony ofW. Ronald Woods at 30:10.
3 Id. at 30:40.
4 Id. at 32:54.
5 !d. at 34:24.
6 !d. at 37:14.
Verified Petition of Appeal From Order Granting Variance, Applicant: David Do ward, File No.: 15-ZV AR-1 035
Page 4 of8 ,'
AGENDA ITEM #8G
SEPTEMBER 14, 2015
with the express and uncontroverted testimony of the Applicant's own expert who testified
that "if it [stucco) is done well, and it is done properly, it lasts for many years but the
difficulty is getting it done properly."7
The Applicant successfully argued to the CDB citing Section 24-64( d) that "Exceptional
circumstances preventing the reasonable use of the property as compared to other prope1ties in the
area." The CDB, puzzlingly, used the testimony of the Applicant's negligent architect and his
expert witness who conceded that "if it [stucco) is done well, and it is done properly, it lasts
for many years but the difficulty is getting it done properly."8 Further, the CDB also had the
benefit of the aforementioned ALTA repmt which ultimately concluded that the reapplication of
stucco would remedy the constmction defects. Again the CDB, instead of focusing on the
aforementioned, Section 24-88(b) which expressly requires the use of the same "materials" in a
townhouse, chose instead to focus on the trials and tribulations that the Applicant had endured
with his renovation process and erroneously shifted its focus to 90 Ocean Boulevard. Application
15-ZV AR-1035 deals not with the alleged issues at 90 Ocean Boulevard, but the request for a
variance at 88 Ocean Boulevard. Considering the testimony and the comments of the CDB
members an onlooker could easily draw the opposite conclusion. The CDB's mling conflicted
with and violated 24-88(b); furthermore, the basis for the CDB's rationale in granting the variance
was unsound. Section 24-64( d) of the Land Development Regulations states that "exceptional
circumstances prevented the reasonable use of the property as compared to other properties in the
area." The only exceptional circumstance presented to the CDB regarding the use ofsh1cco versus
7 !d. at 34:24.
8 !d.
Verified Petition of Appeal From Order Granting Variance, Applicant: David Doward, File No.: 15-ZV AR-1035
Page 5 of8 "'
AGENDA ITEM #8G
SEPTEMBER 14,2015
siding was the amount of management and oversight required by the contractor when monitoring
the subcontractor who is installing the stucco. A contractor supervising his subcontractors and
building site to ensure quality control should hardly be considered an "exceptional circumstance."
CDB Chair Brea Paul aptly pointed out that the installation of stucco is "part of the contractor's
job to know the code and to ensure the proper installation of constmction components", and that
the "precedence of this ruling will open the floodgates for one townhouse owner to come in and
say 'my stucco is failing, and I want something else."'
The vote of three CDB members expressly violated and directly conflicted with both
Sections 24-64 and 24-88 of the Atlantic Beach Code. Section 24-64 specifically prevents the
CDB from granting variances for, "personal comfort or convenience, for relief from financial
circumstances or from relief from situations created by the property owner." The Applicant's
created his own situation for which he is now seeking relief. Furthetmore, Applicant failed to
demonstrate that "exceptional circumstances preventing [prevented] the reasonable use of the
property as compared to other properties in the area" as reflected in the testimony presented by his
own expert W. Ronald Woods who again testified that "if it [stucco] is done well, and it is done
properly, it lasts for many years but the difficulty is getting it done properly,"9 and the ALTA
report authored by engineer Brett Newkirk. There was no legitimate evidence that the Applicant
presented to the CDB that warrant the use of siding over the use of stucco.
As pointed out by Atlantic Beach Building and Zoning Planner Mr. Reeves, the CDB in
considering the Applicant's request for a variance, was also required to provide a safety net for the
adjacent unit (occupied by the undersigned) and the continuity of design. The CDB' s commentary
Verified Petition of Appeal From Order Granting Variance, Applicant: David Doward, File No.: 15-ZVAR-1035
Page 6 of8
AGENDA ITEM #8G
SEPTEMBER 14, 2015
and subsequent ruling did precisely the opposite. One particular CDB member negligently and
recldessly attacked and alleged that the Applicant's neighbor's to the North, the adjacent unit
(occupied by the undersigned), will have problems. This is completely without merit as there was
no independent inspection conducted by the CDB member; furthermore, a contemporaneous Mold
Assessment Report conducted by the House Authority Inspection Service, LLC at the behest of
the undersigned demonstrate's that there is no presence of indoor mold growth at 90 Ocean
Boulevard. Furthermore, the inspector utilized his IR Camera and Moisture Meters in his
inspection of the North wall concluding that there was no evidence of moisture present and that
the readings were normal. The report's fmdings are consistent with the current Land Development
Regulation which continues to recognize stucco as an accepted building material.
In closing, the CDB's ruling expressly violated and directly conflicted with both Sections
24-64 and 24-88 of the Atlantic Beach Code. The CDB's sole purpose is to apply the current law,
not to interpret the law as it would be in the future. Three CDB member's ruled based upon their
opinions about the evolution of the law, not the law as it is currently written. Based upon the
foregoing, Appellant's and adversely affected persons, Saswata and Anjna Roy, respectfully
request that the City Commission overturn the Atlantic Beach Community Development Board's
decision granting the variance at 88 Ocean Boulevard.
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
STATE OF FLORIDA
COUNTY OF DUVAL
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in
Verified Petition of Appeal From Order Granting Variance, Applicant: David Doward, File No.: 15-ZVAR-1035
Page 7 of8
AGENDA ITEM #8G
SEPTEMBER 14,20 15
thi s document and that the punislun ent for knowingly makin g a false statement includes fines/and
or impr isonment.
(Signature of Notarial Officer)
Notary Public for the State of Florida
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
STATE OF FLORIDA
COUNTY OF DUVAL
I understand that Tam swearing or affirming under oath to the truthfulne ss of the claims made in
this docu ment and that the punishment for knowing ly malting a fa lse statement include s
fines/and or imprisonment.
This docwnent was acknow ledged before me on thi s ~T-'-
ROY.
SASWATAROY
(Signature of Notaria l Officer)
Notary Public for th e State of Florida
My comm ission exp ires: --~~O~~L>.L..t--(.._7-'--1li-1~~'""=Qf--l-'\ 2 ..........
Veriued Petition of Appea l From Order Grant in g Variance, App li ca nt: Dav id Doward, Fil e No.: 15-ZV AR-1 035
Page 8 of8
LAND DEVELOPMEN'l' REGULATIONS
AGENDA ITEM IIBG
SEPTEM BER 14,2015
* 24-69
(i) Changes to approved plans. A ppl icant must copy tho city on any and all changes to
approved pla ns including, bu t not limited Lo, changes required by other regu latory agencies
~uc h as tho St. J ohn's River Water Management Distl'ict, Florida Dcpartmcn t of Environm en-
t a l Protection or Florida Departme nt of'l\·ansportation. Fnilure to provided clmngcs to t he ciLy
for rev iew m ay r esult, in a stop work order being issuml if con struction deviaLos from the
a pproved p lun ~:~ on fil e with the c ity.
(Ord. No. 90-10-212, § 2(Exh . A), 3-8-10)
S ec. 24·68. Land clearing and a lte ration of s ite g1•ade OJ' topo{,rraphy.
No Land1:1 s hnll be c leared, g l'll bbed, filled, excavated or topogr aphically a ltered by a n y
moans, and n o vegctntion on nny d evelopment s ite di sL urbe d, pri or to iR s uanco of n llrequil·cd
appr nvalfl and devol opme nt permitH a uthori?.ing such cloal'ing or a l tcmtion. l~xcopt a s
required to meet coastal construction codes as set forth within u valid p ermit from t h o F loridR.
Department of E n vironmental Protection; or as require d to meet a pplicabl e 11 ood 1.0no or
stol'lnwnter regulations, the b'T!lde, e levation or topography of any parco}, d evelopment o1·
redevelopme nt s ite s h a ll not be a lte red.
(Ord . No. 90 -10-212, § 2(Exh. A), 3-8-10)
Sec. 24-69. Fees.
Pu rsuan t t o s ubsection 21l-4G(o), t h o city commission for t h o C ity of Atlantic Bench h e r eby
establishes t h o following (ocs r elated to the administrative coRt of carr y ing out ihe r e quire-
ments of Lhis ch apter and a lso to cover the costs io r planning, zon in g, e n gineering utility and
specifi c u se r e views. These fees s h a ll bH pnyablo to t h e c ity n t t h e t ime s uch applica tion o t·
request is fi le d . Applications for planning and zoning r e lated requests shall not b e con sidered
as complete applications un t il s uch time as require d fees have been paid in full. l~ees lo t·
specific u se veri fi e d co mplia nt-based a nd perm it r ei n s t a t e m ent reviews must be paid prior Lo
sch eduling of s ubse quent com p li a n ce ins pections. F eell as r e quire d by t his section a r c not
refundable.
(a) Planning and z oning fees.
(1) Appeals ...................................................... .
(2) D etermination s of vested rights ................................ .
(3) C h a n ge in w ning district c l assi (i cAt ion ......................... .
(4) Use-by-exception .............................................. .
(5) Zoning variance or waivot• ..................................... .
(6) Development review
a. Single-a nd two-fami ly u ses ............................... .
lJ . Multi-family u ses, p e r dwell ing unii ....................... .
c. Comm ercial and industrial u ses ........................... .
d. Public and institu Lional uses .............................. .
Supp. No. 40 1445
$ 50.00
50 .00
50 0.00
350.00
250.00
50 .00
100.00
300.00
300.00
§ 24-4.8 ATLANTIC DEACII CODE
AGI!:NDA I TEM #8G
SE I'TEM BER 14,20 15
s ub section 24-64(d) or us de mon strated lo preserve a protected tree. Wh ore such
variances arc r equested tor side setb acks on both s ides of a parcel, th o cumu lntiv e to
be wa ived sha ll not exceed five (5) percent ofthe required setback fo r a s in gle s id e. Ji"or
exa mple, where tho required s ide setba ck is a comb in ed fiftee n (15) fee t, the maximum
permitted to be wa iv ed on n s ingle sido or cumul a tiv ely on both s id es i::; nine (9) in ches.
S im ilarly, fo l' 20-foot front and rear ~;etbacks, the maxi mum permi tted to be wnivl ld on
ei th e r the front or r eAr or in co mbin ation is tw elve (12) jnches.
Minor dimensi ona l variances may also be a uthorize d where an inaflvet'ten t l'mrvoying
en or has res ul ted in pl aceme nt of n building not more than four (4) inch es outsi de of
a required building setback lin e. In s uch cases, n letter of ex planation s ha ll be prov id ed
b y the su i'Vcyor, wh ich s hall t•c ma in pa r t of t he bu il di ng permit file.
(i) 'lb pos t s igns and provid ll for pt•opcr published notice of zoning r equests in acco rda nce
with ~;~oct i on 24-52, a nd to fo t·wm·d approp ri ate agendn in fb t•ma ti on to bo co ns icl orerl at
tho rogu lm sc h edu led meetin gs of tho commu nity d ovo lop mon t board to me mb ers at
leas t ~Jeven (7) d ay~:~ pl'ior to the me eting d nte.
U> 'lb rec omm end to r hire s uch pot'S()l1S as necessary to assist in the fu lfillment or t h o
L'e quit·omcnts of the office and delegate to t hese emp loyees the duties a nd l't!spons i-
bilities a ssigned to the community development director as m ay be n ecessa ry to cn ny
ou t propel'ly, th e fun ctions of tho office.
(Ord . No. 90-10-2 12, § 2(1'lxh. A), 3 -8-1 0)
Sec. 24·4~). At>pea ls .
Appeals of ad mi nistrative decisi on s mAd e by t he co mmunity d evelopme nt direcLo r n n d
a ppeals of fin a l dec is ions of t he com munity deve lopment boa r d may be made by a dve rsely
a ffected person(s) in accordance with the foJlowin g provisions. Appeals shall be l10ard at public
hearing within a reasona ble pedod of time with pro per public notice, as we ll lUI du e notice to
t he i nterested parties. At the hearin g, a ny party may appear in person, by age nt or by a ttorney.
(a) Appeals of' administrative decisions of the co mmunity d evelopment direct01: App ea ls of
a d ecis ion of t he community developme nt director may be m ade to the city co mmi $s ion
by u ny adversely a ffected por so n(s), or any oflic er, boArrl m· depar tment uf the city
affected by a d ec is ion of t ho community developm e nt dir ec tor mnd c unde t· the
a uthority of this cha pter .
S uch appeal sh a ll be fil ed in writing with t he city cl erk with in thirty (30) da ys after
r e ndition of the fin a l ord er, r equiremen t, decis ion or det ermin a tion being a pp oo lod.
'l'ho commu ni ty develo pment di rector s ha ll , up on notifi ca ti on of tho filin g of th e
appeal, transmit to t he city co mmission, all th o do cuments, plans 1 or other ma t eria ls
constitu t in g the r eco rd upon which the action bein g appealed wns d cl'ivcd.
(b) Appertls of decisions of the community development board. Appeals of' a decision of' t h e
co mnl\lni ty develop me nt hon t•d mny hn mnclc to I he city cr)mmiss ion by any ndvcr~c'l y
nfft>ck d Jll'l'son(s), uny of!ic c r, board or depa rtment of th e cit.y affected IJy u ny J cci:;ion
S upp. No. 37 1430
LAND DEVELOPMENT REGULATIONS
ACI!:NOA I TEM I/8G
SEPTEMBE R 14,2015
§ 24-50
of tho community d eve lopment board made under the auth ority of t h is c hapte r. S u ch
n ppenl shoJI be fi led in writi n g with the city cle rk within thirty (30) dnys a ft<'t'
r e ndition of the fi n a l orcl c t·, t•c quirc m c nl, decision or d etermin ation being appc!l iNI.
T h e appcllllnt s h a ll prcseni io th e ci i y co mmission a p e tition , duly veri fi e d, s etting
forth that the d ecis ion being Appea le d is in co nOi d with or in v iol alio n of this c h a ptPt',
in who le or in part., s pcci(ying the g round:; of t ho con Hi ct Ol' vio latio n . Tho pe tition s l 1nll
bo pr e sented to t ho city commission within t hirty (::10) d ays afte r tho fi I i ng-oflhe n pp1 !1\l
with the ci t y cl e rll.
(c) Stny of worlt. AI1 appeal to the city commission shall stay a ll work on the pre mises antl
nil proceedings in fu rthet·ancc of the action appealed, un less t h e d esignated adminis-
trutive official s h nl l certify to the city com miss ion that, by r eason of facts sLate d in tho
certificate, a stay wou ld cn uso immin en t p ori ! to Jife or p r oper Ly. In s uch case,
proceed ings o t· wo l'lc shnll not be stayocl except by OJ'(Im·, which may he g-ranted by tho
city comm ission n ft or npplicntion to tho ofi ic e r from whom tho nppcn l is tnken and on
due cau se s hown.
(Ore!. No . 90-10-212, § 2(Exh. A), 3-8-10)
Sec. 24-50. Ves ted t•ights.
(a) Detenninrttion of vested rights . 'l'he determination of vested rights s h ctl l b e based upon
fa ctu nl ev idence provided to t h e City of Atlantic B e nch. Each vesting determ in ation s hall he
based o n a n individual ca!Je-by-case basis. Applications for a dotorminntion of ves ted rights
s h a ll be submitte d to tho community developm ent director. '£ho applicant s hall h:wc the
bu1·den of pl'Oofto demonstrate t h e entitlement to vested r ights purs uont to tho requireme nts
of Florida law and s h a ll prov ide a ll infonnation as m ay b e required. All vested developme nt.
s ubject to a vested righ ts d eterminat ion shall be con sist ent with the term s oftbe d eve lopme nt
approva l up1m which t h e vesting determi n ati o n was based .
(b) Expiration of vested right~>.
(1) Statutory vested rights determinations s hall not have a speci fie expiration d ate unless
s peci fied in other ordi nances, d e velopment permits or statutory limitations. Such
vested righ ts may expire as otherwise a llowe d or required by applicable law.
(2) Common law vested rights determi n a tion s, which have bee n recognized by the ~.:ity,
s hall remain valid for a pcl'iud of up to livo (5) year:; from tho d a te the dete rmination
was m ade u nless oth erwi!:lo specified by tho vesting d etermination, provide d tha t the
ciLy may cancel a nd n egate such vested rights prior to tho expiration of said Limo
pe t·iod if it can demonstrated t h at the r e ques t for a vested rights d e termination was
based on substantia lly inaccurate information p rovideu by !.he applicant, or that tho
revocation of Raid vested rights is clearly est ablished to be essential lor the h eal th,
safety a nd w e lfa re of the publi c.
(3) R e quests to extend Lhe Lime period of a vc~;tcd righ ts d eterm ination :;hall b e mado to
t h o city commission and s h a ll be g r a nted only upon s howing of good cause.
Supp. No. 40 1431