2007-R-0102/08/2007 12:39 PH
0Irstrusentt 2007-030521 t 1
Book: 6004
Page: 521
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Nicholas N. Palmer, Esq.
FOLEY & LARDNER LLP
I I I North Orange Avenue, Suite 1800
Orlando, FL 32801-2386
(407)423-7656
RESOLUTION NO.2007-R-01
(Vested Rights Determination for Approved PUD Agreements)
A RESOLUTION OF THE CITY OF EDGEWATER,
FLORIDA, PROVIDING THAT THE CITY COUNCIL OF
THE CITY OF EDGEWATER ACKNOWLEDGES,
RECOGNIZES AND DETERMINES THAT PROPERTY
OWNERS' RIGHTS TO CONSTRUCT BUILDINGS IN
EXCESS OF 35 FEET PURSUANT TO CERTAIN PLANNED
UNIT DEVELOPMENT AGREEMENTS THAT WERE
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 A PROPERTY
OWNER'S RIGHT TO RELY ON THE DEFINITION OF
"BUILDING HEIGHT" CONTAINED IN THE EDGEWATER
LAND DEVELOPMENT CODE FOR THE PURPOSE OF
CALCULATING THE MAXIMUM BUILDING HEIGHT
PERMITTED UNDER A PLANNED UNIT DEVELOPMENT
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 RECORDATION; PROVIDING FOR
SEVERABILEEY; 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 ltlaximum of 35 feet (the "Height Amendment"). The full text of the Height
(Resolmion2007-R-01)
Instruserdl 2007-030521 R 2
0Book: 6004
ti Page: 522
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, prior to November 7, 2006, the City Council approved of and entered into
those certain Planned Unit Development Agreements identified and more particularly described on
Exhibit "B" attached hereto and by this reference made a part hereof (each, an "Approved PUD
Agreement" and collectively, the "Approved PUD Agreements");
WHEREAS, many of the Approved PUD Agreements allow 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'containedin the Edgewater Land Development
Code;
WHEREAS, Section (b) ofthe 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
"Charter Building Height Definition');
(Resolution2007-R-01)
Instament! 2007-030521 0 3
h I� Book: 6004
�J v Page: 523
WHEREAS, Section 21-20.02 ofthe Edgewater Land Development Code defines "building
height" as the "vertical distance measured from the required minimum 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 that a property owner's right to construct buildings in excess of 35 feet pursuant to
an Approved PUD 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; and
WHEREAS, the City Council of the City of Edgewater desires to acknowledge, recognize
and determine that a property owner's right to rely on the LDC Building Height Definition for the
purpose of calculating the maximum building height permitted under an Approved PUD 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.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF EDGEWATER, FLORIDA, AS FOLLOWS:
SECTION 1. Authority. The City Council of the City of Edgewater has the authority to
adopt this Resolution pursuant to Article VIII of the Constitution ofthe State of Florida and Chapter
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 that a property
owner's right to construct buildings in excess of 35 feet pursuant to an Approved PUD Agreement
is a vested right, and accordingly, such property owner is not subject to the height limitation
imposed by the Height Amendment with respect to development that complies with the Approved
PUD Agreement, provided, however, that if (i) the City terminates an approved PUD Agreement
due to a default by the property owner or his agent or assigns, or (ii) an approved PUD Agreement
(Resolution/2007-R-01) 3
Instrument# 2007-030521 4 4
O (:)Book: 6004
Page: 524
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 approved 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 PUD Agreement.
SECTION3. Vested Rights toRetyonLDC Building HeightDefinition.The City Council
of the Cityof Edgewater hereby acknowledges, recognizes and determinesthat a property owner's right
to rely on the LDC Building Height Definition for the purpose of calculating the maximum building
height permitted under an approved PUD Agreement is a vested right, and shall not be bound by the
Charter Building Height Definition for such purpose, provided, however, that if (i) the City terminates
an approved PUD Agreement due to a default by the property owner or his agent or assigns, or (ii) an
approved PUD Agreement is terminated in accordance with its terms, then the City shall consider any
vested rights to rely on the 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 Amendment as a condition
to amend an approved PUD Agreement.
SECTION 4. Recordation. A certified copy of this Resolution shall be filed with the Clerk
ofthe Circuit Court, Volusia County and duly recorded among the Public Records of Volusia County,
Florida
SECTION 5. Severabilily. If any section, subsection, sentence, clause, phrase orponion of
this Resolution is foranyreasonheld invalid orunconstitutional byanycourtofcompekntjurisdiction,
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
(Resolution2007-R-01)
a
Instrument# 2007-030521 9 5
O (1Book : 6004
vPage: 525
adoption.
PASSED AND ADOPTED this 8th day of January , 2007.
After Motion for approval by councilwoman Rhodes and Second by
Counciwwoamn LIchterthe 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
PASSED AND DULY ADOPTED this 8th day of January 2007
(Seat)
APPROVED:
Robin L. Matusick, Paralegal
For use and reliance only by the City of Approved by the City Council of je City of
Edgewater, Florida Approved as to form and Edgewater at a meeting held this ch day of
legality by: Paul E. Rosenthal, Esq. January 2007 under agenda Item No.
Special Counsel
Foley & Iardner LLP
(Rewlution/2007-R-01) 5
Instnnentf 2007-030521 R 6
y ook: 6004
age: 526
EXHIBIT "A"
(The "Height Amendment")
Article I, 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 ofthe front of the 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 pemtits 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 ofany ordinances in conflict with Us section are hereby repealed. This
section becomes effective upon adoption. This amendment shall become effective immediately upon
approval by the electors.
(Resolution/2007-R-01)
Imtnnent# 2007-030521 R 7
(' )Book : 6004
�i .JPage: 527
EXHBrr "B"
(The "Approved PUD Agreements")
1. Residential Planned Unit Development (RPUD) Agreement by and among the City of
Edgewater, Mercedes Homes, Inc., LarryMcCaskill, and Silkoo, LLC (Reflections), dated July
10, 2006 and recorded August 15, 2006 in Book 5915, Page 1550, Public Records of Volusia
County, Florida.
2. Residential Planned Unit Development (RPUD) Agreement by and between the City of
Edgewater and River Colony Inc., dated December 5, 2005, and recorded January 17, 2006 in
Book 5747, Page 2256, Public Records of Volusia County, Florida.
3. Planned Unit Development (PUD) Agreement by and between the City of Edgewater and
Edgewater Harbor, LLC, dated June 21, 2004, and recorded June 23, 2004 in Book 5346, Page
557, as amended by Amendment No. 1 to Planned Unit Development (PUD) Agreement dated
April 3, 2006, and recorded May 2, 2006 in Book 5819, Page 4092, both ofthe Public Records
of Volusia County, Florida.
4. Planned Unit Development (PUD) Agreement by and between the City of Edgewater and
Julington Oaks Investments, L.L.C., dated January 23, 2006, and recorded February 8, 2006 in
Book 5763, Page 2534, Public Records of Volusia County, Florida.
5. Planned Unit Development (PUD) Agreement by and between the City of Edgewater and
Worthington Creek Investment, LLC, dated January 23, 2006, and recorded February 8, 2006
in Book 5763, Page 2502, Public Records of Volusia County, Florida
6. Planned Unit Development Agreement by and between the City of Edgewater and Massey
Enterprises (Villas at Massey Ranch), dated December 19, 2005, and recorded February 8, 2006
in Book 5763, Page 2478, Public Records of Volusia County, Florida.
7. Planned Unit Development (PUD) Agreement by and between the City of Edgewater and Oak
Leaf Preserve, Inc., dated March 5, 2005, and recorded March 29, 2005 in Book 5518, Page
1776, Public Records of Volusia County, Florida.
8. Development Agreement for ParkTowneIndustrial Center byand among the City ofFdgewater,
Oscar Zeller and Julian Green, Massey Enterprises, Scott S. and Jennifer P. Porte, and Dr. Lesh
and Rita Morgan, dated February 3, 2003, and recorded May 8, 2003 in Book 5070, Page 2930,
and re -recorded April 18, 2005 in Book 5534, Page 1733, both ofthe Public Records of Volusia
County, Florida.
9. Residential Planned Unit Development (RPUD) Agreement by and between the City of
Edgewater and Coral Trace, LLC, dated October 20, 2003, and recorded November 26, 2003
in Book 5214, Page 2491, Public Records of Volusia County, Florida. To include the
Residential Planned Unit DevelopmentAgrcement,Coral Trace -Amendment#l,dated April
17, 2006, and recorded April 21, 2006 in Book 5814, Page 260, Public Records of Volusia
County, Florida.
(Resolution2007-R-01) 7
InstnAentt 2007-03D521 i 0
O /1 Book: 6004
V Page: 528
Diane N. Natausek
Volusia Canty, Clerk of Court
10. Residential Planned Unit Development (RPUD) Agreement by and between the City of
Edgewater and SeaFdge Partners, LLC (Edgewater Lakes Subdivision), dated February 14,
2004, and recorded February ry 23, 2004 in Book 5264, Page 621, Public Records of Volusia
County, Florida.
11. Residential Planned Unit Development (RPUD) Agreement by and between the City of
Edgewater and Dupuis & Jacobs at Edgewater, LLC (Pinehurst Subdivision), dated November
17, 2003, and recorded November 23, 2003 in Book 5211, Page 4387, Public Records of
Volusia County, Florida.
12. Residential Planned Unit Development (RPUD) Agreement by and between the City of
Edgewater and AH Edgewater, LLC (River Oaks), dated May 15, 2005, and recorded May 30,
2006 in Book 5840, Page 22, Public Records of Volusia County, Florida.
13. Residential Planned Unit Development (RPUD) Agreement by and between the City of
Edgewater and Targator Partners, LLC (Riverside Villas), dated May 2, 2005, and recorded
January 30, 2007 in Book 5998, Page 1945, Public Records of Volusia County, Florida
(Resolution@007-RA I )