(A) The right of the applicant to commence or complete construction of a development or to a type, level, nature, density, intensity, or other form of development on his parcel of real property, or a portion thereof, is vested if the applicant can demonstrate that:
(1) The applicant owned the parcel of real property proposed to be developed on the date of notice of a change in a land development regulation, and that the specific nature, type, level, density, intensity, or other form of development proposed for the parcel of real property was lawful and permitted at that time;
(2) That the applicant has continuously owned the parcel of real property since the date of notice of a change in a land development regulation until the date of the public hearing before the City Commission on the special permit application;
(3) That the currently effective city comprehensive plan or land development code, or portion thereof, complained of by the applicant as being counter to the applicant's vested right to commence and complete construction of a certain level, type, nature, intensity, density, or other form of development, has a material and adverse effect upon the applicant's vested right to develop the subject parcel of real property;
(4) By application of the considerations set out in the § 3 of this appendix, the applicant in good faith upon some act or omission of the city has made such a substantial change in position it has an investment-backed expectation that would make it inequitable and unjust to destroy the right of the applicant to commence and complete a certain level, type, nature, density, intensity, or other form of development upon all or a portion of the applicant's parcel of real property; and
(5) Requiring that the applicant's property be developed in accordance with the currently effective city comprehensive plan or city land development code restrictions will, considering the substantial change in position of the applicant or the creation of an investment-backed expectation prior to or on the date on which the currently effective city comprehensive plan or land development code was subject to a notice of a change in a land development regulation, deprive the applicant of a reasonable rate of return on his investment or substantial change in position. In determining the reasonableness of the projected rate of return, the following categories of expenditures shall not be included in the calculation of the applicant's investment:
(a) Expenditures for professional services that are unrelated to the design or construction of the improvements proposed for the type, level, nature, density, intensity, or other form of development proposed to be vested;
(b) Expenditures for taxes, except for any increases in tax expenditures which result from issuance of a development order which would now be contrary to the currently existing city comprehensive plan or land development code; and
(c) Expenditures which the applicant has allocated to the particular proposed development but which the applicant would have been obligated to incur as an ordinary and necessary business expense (for example, employees' salaries, equipment rental, chattel mortgage payments) had the plan for the particular development not been formulated or a development order not been issued for the type, level, nature, density, intensity, or other form of development now claimed by the applicant to be vested.
(B) The fact that the property has been or is in a particular zoning or comprehensive plan district or classification under the currently effective city comprehensive plan or land development code, or any prior city comprehensive plan or zoning ordinance of the city, shall not, in and of itself, establish that an applicant's right to commence and complete construction of a certain level, type, nature, intensity, density, or other form of development has been vested.
(Ord. 241, passed 11-27-85)