Nothing in the Town of Bay Harbor Islands Master Plan (hereinafter "master plan") shall be construed or applied to constitute a temporary or permanent taking of private property without just compensation (hereinafter "taking") or the abrogation of vested rights.

(1)

Vested rights or taking. Nothing contained in this article or in the master plan shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of validly existing vested rights. It shall be the duty and responsibility of the party alleging a taking or vested rights to affirmatively demonstrate the legal requisites of a taking or vested rights. Rights shall vest upon a demonstration to the town council that the provisions of F.S. § 163.3167(8) (1987) apply or that the applicant (1) has relied in good faith (2) upon some act or omission of the government and (3) has made such a substantial change in position or incurred such extensive obligations and expenses to their detriment that it would be highly inequitable to deny relief. The mere existence of zoning contrary to the master plan shall not be determined to vest rights. To establish a taking, the burden shall be on the applicant to demonstrate that 1) denial of the application will deny the applicant all beneficial use of the property; and 2) that no variances, alternative uses or other forms of relief are available which could, if approved, afford the applicant a beneficial use of the property. Mere diminution in property value shall not constitute a temporary or permanent taking of private property.

(2)

Notwithstanding any contrary provisions of the Code of the Town of Bay Harbor Islands, no applicant claiming that the masterplan, as applied to a particular developmental action or order, constitutes or would constitute a temporary or permanent taking of private property or an abrogation of vested rights may pursue such claim in court or before a quasi-judicial body unless he has first exhausted the administrative remedies provided herein.

(Ord. No. 612, § 1(1), 1-13-97)

(a)

Any applicant alleging that the master plan, as applied to a particular developmental order or action, constitutes or would constitute a temporary or permanent taking of private property or an abrogation of vested rights must affirmatively demonstrate the legal requisites of the claim by exhausting the administrative remedy provided in this section. Any applicant making such a claim shall submit a sworn statement to the town manager setting forth the facts upon which said claim is based. Said sworn statement shall be accompanied by copies of any contracts, letters, appraisals, reports or any other documents, items or things upon which the applicant's claim is based. Said sworn statement shall also be accompanied by a list of the names and addresses of any witnesses which the applicant shall present in support of the claim and a summary of the testimony of each witness.

(b)

Claims of a taking or abrogation of vested rights are limited solely to extreme circumstances rising to the level of a potential denial of rights under the Constitutions of the United States and the State of Florida. The procedures provided herein for demonstrating such a taking or abrogation of vested rights are not intended to be utilized routinely or frivolously, but only in the extreme circumstances described above. The claimant or the attorney for the claimant shall exercise due diligence in the filing and argument of any sworn statement, notice of invoking administrative remedy or the claim for a taking or abrogation of vested rights. The signature of the claimant or the attorney for the claimant upon any document in connection with a claim or taking or abrogation of vested rights shall constitute a certificate that the person signing has read the documents and that to the best of his knowledge it is supported by good grounds and that it has not been presented solely for delay. The claimant and the attorney for the claimant shall have a continuing obligation throughout the proceedings to correct any statement or representation found to have been incorrect when made or which becomes incorrect by virtue of changed circumstances. If a claim of taking or abrogation of vested rights is: 1) based upon facts that the claimant or the attorney for the claimant knew or should have known was not true; or 2) frivolously or filed solely for the purposes of delay, the town council shall make such a finding and may pursue any remedy or impose any penalty provided by law or ordinance.

(Ord. No. 612, § 1(2), 1-13-97)

(a)

Developmental permit. For purposes of this article a "developmental permit" shall mean a building permit, certificate of use and occupancy, or developmental order or action which may be issued by an administrative official on the application for said developmental permit.

(b)

Developmental order. For purposes of this article, a "developmental order" shall mean a developmental resolution or ordinance which requires the approval of the town council after a public hearing on the application for said developmental order prior to its issuance.

(c)

Sworn statement. For purposes of this article, "sworn statement" shall mean the sworn statement described in section 23-62 above together with all accompanying documents, witness lists, items and things supporting the applicant's claim and an administrative fee for review of the application, as determined from time to time by the town manager.

(Ord. No. 612, § 1(3), 1-13-97)

(a)

Any developmental permit denied on the grounds of inconsistency with the master plan shall state in writing that the permit has been denied on such basis. Any applicant seeking to appeal the denial of a developmental permit on the grounds set forth in section 23-61(1) shall file a notice of invoking administrative remedy with the town manager on a form prescribed by the town manager within 15 days of the denial of said developmental permit. The applicant shall file a complete sworn statement within 90 days of the filing of the notice of invoking administrative remedy. Failure to file the sworn statement within the time specified in this paragraph shall constitute an irrevocable waiver of claim.

(b)

Any applicant alleging that denial of a developmental order on the basis of inconsistency with the master plan would constitute a temporary or permanent taking of private property or an abrogation of vested rights shall file a complete sworn statement with the town manager not later than 30 days after the hearing on the developmental order. No oral testimony or written reports or documents in support of any argument that the denial of the developmental order would constitute a temporary or permanent taking of private property or would abrogate vested rights shall be considered as evidence at the public hearing unless the complete sworn statement has been timely filed pursuant to this paragraph; provided, however, that where an applicant has failed to timely file a sworn statement pursuant to this paragraph, the town council taking action on a developmental order may defer the hearing on an application for a developmental order to avoid a manifest injustice and to provide adequate time for review of the sworn statement by the town manager or, in the event of an application initiated by a party other than the affected property owner, to provide adequate time for the property owner to invoke the administrative remedy and to adhere to the time schedules provided herein.

(Ord. No. 612, § 1(4), 1-13-97)

(a)

It shall be the duty and responsibility of the town manager to review all sworn statements timely filed pursuant to this article. The town manager shall have the authority to request additional information from the applicant and should forward the application and consult with the town attorney as to the form and legal sufficiency of the application.

(b)

If the town council finds that a denial of a developmental permit or developmental order would result in a temporary or permanent taking or abrogation of vested rights, it shall reverse or modify said denial. Otherwise, the town council shall affirm said denial.

(c)

The town council may elect to first consider the original application for permit or order rather than concurrently conduct a hearing upon a claim of taking or abrogation of vested rights. If the town council's determination is that the original application should be denied in whole or in part, such determination shall not be a final decision but shall be subject to a further determination of a claim of taking or abrogation of vested rights. The town council may either hear directly the claim of taking or abrogation of vested rights, may defer consideration of the claim to a subsequent hearing, or may refer the same to the town manager for further review and recommendation prior to taking final action. If the town council shall finally determine that the denial of the original application would result in a taking or abrogation of vested rights, the town council shall grant appropriate relief which would avoid such result. Upon a determination by the town council that denial of the original application would not effect a taking or abrogate vested rights, the preliminary determination to deny shall become final.

(Ord. No. 612, § 1(5), 1-13-97)

A developmental order or action shall not be deemed a final order in any court or quasi-judicial proceeding challenging the denial of the developmental order or action as a temporary or permanent taking or private property or an abrogation of vested rights unless the remedies set forth in this section have been exhausted.

(Ord. No. 612, § 1(6), 1-13-97)