§ 118-169. Proposed comprehensive plan amendments; application of equitable estoppel to permits and approvals.

(a)

Amendments to the city's comprehensive plan shall be enforced against all applications and/or requests for project approval upon the earlier of the favorable recommendation by the planning board or the applicable effective date of the comprehensive plan amendment, as more particularly provided below. After submission of a completed application for a project approval, to the extent a proposed amendment to the comprehensive plan would, upon adoption, render the application nonconforming, then the following procedure shall apply to all applications considered by the city or any appropriate city board:

(1)

In the event the applicant:

a.

Obtains (i) a design review approval, (ii) a certificate of appropriateness, (iii) a variance approval where no design review approval or certificate of appropriateness is required, or (iv) a full building permit as defined in section 114-1 where no design review approval, certificate of appropriateness or variance approval is required; and

b.

Satisfies subsection a., above, prior to a favorable recommendation by the planning board with respect to any comprehensive plan amendment that is adopted by the city commission within 150 days after receiving comments on the transmitted proposed amendment from the department of community affairs,

then the project shall be presumed to have received a favorable determination that equitable estoppel applies and the subject comprehensive plan amendment shall not be enforced against the application and/or project (hereinafter, a "favorable determination"), except as otherwise provided in subsection (b), below. In the event the city commission fails to adopt a resolution providing for transmittal of the proposed amendment to the department of community affairs, or rejects the amendment within 150 days after a favorable recommendation by the planning board, or fails to enact or rejects the amendment within 150 days after receiving comments on the transmitted proposed amendment from the department of community affairs, then the project shall no longer be deemed nonconforming.

(2)

In the event the applicant:

a.

Obtains (i) a design review approval, (ii) a certificate of appropriateness, (iii) a variance approval where no design review approval or certificate of appropriateness is required, or (iv) a full building permit as defined in section 114-1 where no design review approval, certificate of appropriateness or variance approval is required; and

b.

Satisfies subsection a., above, prior to the effective date of any comprehensive plan amendment where there was an unfavorable recommendation by the planning board with respect to the comprehensive plan amendment, or when the planning board recommends favorably, but the city commission rejects the amendment within the specified 150-day period, or the city commission fails to enact or rejects the amendment within 150 days after reviewing comments on the transmitted proposed amendment from the department of community affairs,

then the project shall be presumed to have received a favorable determination and the subject comprehensive plan amendment shall not be enforced against such application and/or project, except as otherwise provided in subsection (b), below.

(3)

In the event an applicant does not qualify under subsections (1) or (2) of this subsection (a) for a presumption of a favorable determination to avoid enforcement of adopted amendments against an application and/or project, then the applicant may seek a determination from a court of competent jurisdiction as to whether equitable estoppel otherwise exists. If, however, an applicant fails to seek a determination from the court, or if the court has made a determination unfavorable to the applicant, and such determination is not reversed on appeal, then the city shall fully enforce the adopted land development regulation amendment(s) against the applicant's application and/or project.

(4)

Any presumption of a favorable determination under subsections (1) and (2) of this subsection (a), or any favorable determination under subsection (3) of this subsection (a), shall lapse contemporaneously with the failure, denial, expiration, withdrawal, or substantial amendment of the application, approval, or permit relative to the project or application to which the favorable determination is applied.

(5)

For purposes of this subsection (a), all references to obtaining design review approval, a certificate of appropriateness or variance approval, shall mean the meeting date at which the respective board approved such application or approved such application with conditions. For purposes of this subsection (a), "substantial amendment" shall mean an amendment or modification (or a proposed amendment or modification) to an application, approval or permit which, in the determination of the planning and zoning director, is sufficiently different from the original application or request that the amendment would require the submission of a new application/request for approval of same. All references to obtaining a building permit shall mean the date of issuance of the permit.

(6)

After submission of a completed application for a project approval, to the extent a proposed amendment to the land development regulations would, upon adoption, render the application nonconforming, then the city or any appropriate city board shall not approve, process or consider an application unless and until (i) the project has cured the nonconformity or the applicant acknowledges that the city shall fully enforce the adopted land development regulation amendment(s) against the applicant's application and/or project; (ii) the project qualifies under subsections (1) or (2), and subject to subsection (4), of this subsection (a), above; or (iii) a favorable determination has been made by a court. Except as otherwise provided herein, any proceeding or determination by any city employee, department, agency or board after a project becomes nonconforming shall not be deemed a waiver of the city's right to enforce any adopted land development regulation amendments.

(b)

Subsections (a) and (b) of this section shall not apply to proposed amendments to 118-101 et seq., which would designate specific properties or districts as historic. The moratorium regulations applicable to such proposed amendments are set forth in 118-593.

(Ord. No. 89-2665, § 14-8, eff. 10-1-89; Ord. No. 93-2866, eff. 8-7-93; Ord. No. 98-3106, § 1, 1-7-98; Ord. No. 98-3130, § 1, 7-15-98; Ord. No. 2000-3253, § 1, 7-12-00; Ord. No. 2006-3537, § 2, 10-11-06)