2007-R-0501/12/2007 04:02 PH
OInstnaentf 2007-15M i 1
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Page: 3591
Q%— THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Carolyn S. Ansay, Esquire
DORAN, WOLFE, ANSAY & KUNDID
444 Seabreeze Boulevard, Suite 800
Daytona Beach, FL 32118
(386)253-1111
RESOLUTION NO.2007-R-05
(Vested Rights Determination for Southeast Volusia Hospital District)
A RESOLUTION OF THE CITY OF EDGEWATER,
FLORIDA, PROVIDING THAT THE CITY COUNCIL OF THE
CITY OF EDGEWATER ACKNOWLEDGES, RECOGNIZES
AND DETERMINES THAT THE RIGHTS OF THE
SOUTHEAST VOLUSIA HOSPITAL DISTRICT TO
CONSTRUCT BUILDINGS IN EXCESS OF 35 FEET
PURSUANT TO THE ANNEXATION AGREEMENT
APPROVED BY THE CITY PRIOR TO NOVEMBER 7, 2006
ARE DETERMINED TO BE VESTED RIGHTS, AND
ACCORDINGLY, NOT SUBJECT TO THE 35 FEET HEIGHT
LIMITATION IMPOSED BY THE CITIZEN INITIATIVE
CHARTER AMENDMENT THAT WAS APPROVED BY THE
VOTERS OF THE CITY OF EDGEWATER AT THE
NOVEMBER 7, 2006 ELECTION, SUBJECT TO CERTAIN
LIMITATIONS; PROVIDING THAT THE CITY COUNCIL OF
THE CITY OF EDGEWATER ACKNOWLEDGES,
RECOGNIZES AND DETERMINES THAT THE RIGHT TO
RELY ON THE DEFINITION OF "BUILDING HEIGHT"
CONTAINED INTHEEDGEWATERLANDDEVELOPMENT
CODE FOR THE PURPOSE OF CALCULATING THE
MAXIMUM BUILDING HEIGHT PERMITTED UNDER AN
AGREEMENT APPROVED BY THE CITY PRIOR TO
NOVEMBER 7, 2006IS A VESTED RIGHT, AND SHALL NOT
BE BOUND BY THE DEFINITION OF BUILDING HEIGHT
CONTAINED IN THE CITIZEN INITIATIVE CHARTER
AMENDMENT THAT WAS APPROVED BY THE VOTERS
OF THE CITY OF EDGEWATER AT THE NOVEMBER 7,
2006 ELECTION, SUBJECT TO CERTAIN LIMITATIONS;
PROVIDING FOR RECORDING; PROVIDING FOR
SEVERABILITY; PROVIDING AN EFFECTIVE DATE.
WHEREAS, on November 7, 2006, the voters of the City of Edgewater approved a citizen
initiative amendment to the Edgewater City Charter that limits the height of new buildings within
the City to a maximum of 35 feet (the "Height Amendment'). The full text of the Height
(Resohnion/2007-R-05)
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Amendment is attached hereto as Exhibit "A" and by this reference made a part hereof;
WHEREAS, Section (d) of the Height Amendment provides:
Buildings in existence or with approved construction permits or
adopted Planned Unit Developments on or before the effective date
of this amendment, may be completed, repaired or rebuilt to a height
not to exceed the previously existing height, within the same building
footprint, subject to any other applicable state, federal or local laws.
The height limits are not intended to restrict or otherwise adversely
affect a property owner's vested rights under constitutional, statutory
or common law....
WHEREAS, the effective date of the Height Amendment is November 7, 2006, the date of
its approval by the voters of the City of Edgewater;
WHEREAS, the City Council entered into an Annexation Agreement with the Southeast
Volusia Hospital District, Edgewater Properties, LLC and Dixie Highway, LLC ("Property
Owners"), dated December 6, 2004 and recorded in the Public Records of Volusia County at Book
5458, Page 1979 ("Approved Annexation Agreement'). The full text of the Approved Annexation
Agreement is attached hereto as Exhibit "B" and by this reference made a part hereof;
WHEREAS, the Approved Annexation Agreement contains the terms normally provided
for in a planned unit development agreement, including an allowance for building heights in excess
of 35 feet
WHEREAS, the Height Amendment provides a definition of "building height" that is
inconsistent with the definition of"building height" contained in the Edgewater Land Development
Code;
WHEREAS, Section (b) ofe Height Amendment defines "building height' as "the vertical
distance from the elevation of the crown of the road of the nearest adjacent roadway at the center
of the front of the building to the highest point of the coping of a flat roof, the deck line of a mansard
roof, or the mean height level between eaves and ridge for hip, gable and gambrel roofs" (the
(Rewlution/2007-R-05) 2
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"Charter Building Height Definition");
WHEREAS, Section 21-20.02 ofthe Edgewater Land Development Code defines "building
height" as the "vertical distance measured from the required minimum finished floor elevation to
the highest point of the roof' (the "LDC Building Height Definition");
WHEREAS, the City Council of the City of Edgewater desires to acknowledge, recognize
and determine the Property Owners' right to construct buildings in excess of 35 feet pursuant to the
Approved Annexation Agreement is vested and not subject to the height limitation imposed by the
Height Amendment, subject to the provisions and limitations set forth in this Resolution;
WHEREAS, the City Council of the City of Edgewater desires to acknowledge, recognize
and determine that the Property Owners' right to rely on the LDC Building Height Definition for
the purpose of calculating the maximum building height permitted under the Approved Annexation
Agreement is vested, and shall not be bound by the Charter Building Height Definition, subject to
the provisions and limitations set forth in this Resolution;
WHEREAS, on January 8, 2007, the City Council approved Resolution 2007-R-01
acknowledging, recognizing and determining the vested rights of certain property owners named
therein pursuant to Approved PUD Agreements entered into prior to the November 7, 2006
effective date of the Height Amendment; and
WHEREAS, the Approved Annexation Agreement described herein was inadvertently
omitted from Resolution 2007-R-01.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF EDGEWATER, FLORIDA, AS FOLLOWS:
SECTION 1. Authori . The City Council of the City of Edgewater has the authority to
adopt this Resolution pursuant to Article VBI of the Constitution of the State of Florida and Chapter
(Rewlution/2007-R-05)
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166, Florida Statutes.
SECTION 2. Vested Rights for Buildings in Excess of 35 Feet. The City Council of the
City of Edgewater, Florida, hereby acknowledges, recognizes and determines the Property Owners'
right to construct buildings in excess of 35 feet pursuant to an Approved Annexation Agreement is
a vested right, and accordingly, said Property Owners are not subject to the height limitation
imposed by the Height Amendment with respect to development that complies with the Approved
Annexation Agreement and future Planned Unit Development Agreement to be negotiated between
the City and the Property Owners in accordance with the Annexation Agreement (the "future PUD
Agreement"); provided, however, that if (i) the City terminates the future PUD Agreement due to
a default by the Property Owners or their agents or assigns, or (ii) the future PUD Agreement is
terminated in accordance with its terms, then the City shall consider any vested rights to construct
buildings in excess of 35 feet under such future PUD Agreement to have lapsed. The foregoing
vested rights shall not preclude the City from requiring compliance with the Height Amendment as a
condition to amend an Approved Annexation Agreement or an approved PUD Agreement.
SECTION3. VestedRiehtstoRelyonLDCBuddingHeightDefmition.TheCityCouncil
of the City of Edgewater hereby acknowledges, recognizes and detemtines that the Property Owners'
right to rely on the LDC Building Height Definition for the purpose of calculating the maximum
building height permitted under the Approved Annexation Agreement is a vested right, and shall not
be bound bythe Charter Building Height Definition for suchpurpose; provided, however, that if(i) the
City terminates the future PUD Agreement due to a default by the Property Owners or their agents or
assigns, or(ii) the future PUD Agreement is terminated in accordance with its terms, then the City shall
consider anyvested rights to rely onthe LDC Building Height Definition for the purpose ofcalculating
the maximum building height permitted under such approved PUD Agreement to have lapsed. The
foregoing vested rights shall not preclude the City from requiring compliance with the Height
(Resolution/2007-R-05) 4
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Amendment as a condition to amend an Approved Annexation Agreement or an approved PUD
Agreement.
SECTION 4. Recordation. A certified copy of this Resolution shall be filed with the Clerk
of the Circuit Court, Volusia County and duly recorded among the Public Records of Volusia County,
Florida.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase or portion of
this Resolution is for any reason held invalid or unconstitutional by any court ofcompetent jurisdiction,
such portion shall be deemed a separate, distinct and independent provision and such holding shall not
affect the validity of the remaining portion hereto.
SECTION 6. Effective Date. This Resolution shall become effective upon passage and
adoption.
PASSED AND ADOPTED this 21 day of May 2007.
After Motion for approval by Councilwoman Lichter and Second by
Councilwoman Rogers , the vote on this Resolution was as follows:
AYE NAY
Mayor Mike Thomas
x
Councilwoman Debra J. Rogers
x
Councilman Dennis A. Vincenzi
x
Councilwoman Harriet B. Rhodes
x
Councilwoman Judy Lichter
x
(Resolution/2007-R-05) 5
A
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PASSED AND DULY ADOPTED this 21 day of May , 2007
For use and reliance only by the City of
Edgewater, Florida. Approved as to form and
legality by: Carolyn S. Ansay, Esq.
City Attorney
Doran, Wolfe, A tsay & Kundid
APPROVED:
CITY OF EDGE E 'FLORIDA
B `
omas, Mayor
CL9)x
Robin L. Matusick, Paralegal l
Approved by the City Council of the City of
Edgewater at a meeting held this 21at day of
May . 2007 under agenda Item No.
7B
(Resolutionl2007-R-05)
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Diane M. Matousek
Volusia County, Clerk of Court
EXHIBIT "A"
(The "Height Amendment")
Article 1, Section 1.01(a)(1)
(a) In order to further protect the public health, safety, general welfare, and aesthetics, no new
building height shall exceed 35 feet, nor shall any existing building be altered to cause it to exceed a
building height of 35 feet.
(b) Building height means the vertical distance from the elevation of the crown of the road of
the nearest adjacent roadway at the center of the front ofthe building to the highest point ofthe coping
of a flat roof, the deck line of a mansard roof, or the mean height level between eaves and ridge for hip,
gable and gambrel roofs.
(c) The height limits do not apply to spires, belfries, cupolas, flagpoles, antennas, water tanks,
fire towers, cooling towers, ventilators, chimneys, radio and television towers, elevator hoistways, not
intended for human occupancy.
(d) Buildings in existence or with approved construction permits or adopted Planned Unit
Developments on or before the effective date ofthis amendment, maybe completed, repaired or rebuilt
to a height not to exceed the previously existing height, within the same building footprint, subject to
any other applicable state, federal or local laws. The height limits are not intended to restrict or
otherwise adversely affect a property owner's vested rights under constitutional, statutory or common
law. If it is determined by a court of competent jurisdiction that a landowner has vested rights, the
landowner can elect to proceed with development under the Land Development Code in effect on the
date of the adoption of this amendment.
(e) Those parts of any ordinances in conflict with this section are hereby repealed. This
section becomes effective upon adoption. This amendment shall become effective immediately upon
approval by the electors.
(Resotution/2007-R-05)