§ 33G-6. Extension of capacity reservation and application for equitable tolling of traffic concurrency reservation period.

(A)

Extension of capacity reservation.

(1)

Where a final plat, waiver of plat, or site plan has been approved in accordance with Section 33G-5(6)(c), which provides for a reservation of adequate capacity for two years from the date of such a final development order, an extension of the two-year reservation period may be granted when the applicant demonstrates that development has commenced on a timely basis and is continuing in good faith.

(a)

However, no such extended period shall exceed five years from the date of the final plat, waiver of plat, or site plan approval. In determining whether a development has commenced on a timely basis, the Executive Council's consideration shall include but not be limited to: (1) the density, intensity, and size of the development, (2) staging, phasing, or timing of development, and (3) economic conditions prevailing during the two-year period immediately following final plat approval.

(b)

For the purposes of this subsection (A), "continuing in good faith" is defined pursuant to Section 2-114.2 of the Code of Miami-Dade County.

(2)

Any application for an extension of capacity reservation period pursuant to this section shall be filed with the Director no later than 120 days prior to the expiration of the capacity reservation period or within 60 days after the effective date of this ordinance for those applications whose expiration date has expired or will expire within 180 days after such effective date.

(3)

All applications for an extension of capacity reservation shall be filed with the Director on a form prescribed by the Director to accomplish the purpose of this section. The form shall require information relevant and material to the extension of time requested including but not limited to:

(a)

A letter of intent explaining the basis for the requested extension together with a detailed description of the particular approved development in question including location, and quantity of development or intensity of development.

(b)

A complete itemization of all development permits issued including but not limited to building permits and certificates of use and occupancy.

(c)

A complete itemization of all development permits needed to complete development. The itemization shall include but are not limited to building permits and certificates of occupancy as well as a schedule including the period of time for which the applicant claims is needed to complete development.

(4)

Any application for an extension of capacity reservation filed pursuant to this section shall be reviewed by the Developmental Impact Committee (DIC) Executive Council at a meeting of the Council.

(5)

Within 15 days after receipt of an application for an extension of the capacity reservation, the Director shall determine and notify the applicant whether the application information is sufficient to enable the DIC Executive Council to issue a determination, and the Director shall request any additional information needed. If the Director determines that the information in the application is not sufficient, the applicant shall either provide additional information as requested, or shall notify the DIC Coordinator in writing that the information will not be supplied and the reasons therefor. If the applicant declines to provide the requested information, the DIC Executive Council shall act on the application as filed. If the applicant does not respond to the request for additional information within 90 days, then the application shall be deemed to be withdrawn. If the applicant provides requested additional information, the Director shall, within 15 days from receipt of the additional information, determine whether the additional information furnished is sufficient to comply with this request. If the additional information is not sufficient, the Director shall notify the applicant of the respects in which the information does not comply with the original request. When all requested information is received, the application will be considered sufficient and the applicant will be so notified.

(6)

The DIC Executive Council shall review the completed application and any additional information provided. It shall consider all written documents, written statements, and information submitted by the applicant or gathered and made part of the record by the Director during the investigation and evaluation of the application. The Director may solicit and shall accept submission of relevant information from any other appropriate departments or agencies of Miami-Dade County. The Director may solicit and shall accept information from any third persons who may possess factual information relevant to the investigation of an application. Copies of such information obtained by the Director shall be furnished to the applicant, and the applicant shall be given an opportunity to respond to the information. The applicant shall be given an opportunity to address the DIC Executive Council and present evidence and argument in favor of its application, and respond to any questions or concerns raised by members of the DIC Executive Council.

(7)

Within sixty (60) days after acknowledging receipt of a sufficient application, or receiving notification that additional information requested pursuant to subsection (4) will not be supplied, the DIC Executive Council shall review the application in accordance with the procedures contained herein and shall issue its determination. The time for issuance of the determination by the DIC Executive Council may be extended by agreement between the applicant and the DIC Executive Council. A determination shall contain findings of fact and conclusions supporting the said extension of capacity reservation determination.

(B)

Equitable tolling of traffic capacity reservation.

(1)

The Executive Council of the Developmental Impact Committee ("DIC") shall have the authority and duty, after application and hearing, to approve applications for equitable tolling of the traffic capacity reservation period for property adversely affected by an administrative zoning decision issued under Chapter 33, Code of Miami-Dade County, that is subsequently reversed on appeal, and the appellate decision has become final. Executive Council decisions acting on an equitable tolling application may be appealed to the Board of County Commissioners pursuant to section 33-314(C), Code of Miami-Dade County.

(2)

An application for equitable tolling of the traffic capacity reservation period shall be filed with the Director, with notice to the Director of the Department of Transportation and Public Works or successor department, no later than 10 business days after the later of (1) the date upon which the reversal of the adverse administrative zoning decision by an appellate decision becomes final, or, (2) if applicable, transmittal of the zoning resolution to the Clerk.

(3)

Standards.

(a)

For the purposes of this section:

(i)

Equitable tolling of the traffic capacity reservation period shall mean extension of traffic capacity reservation beyond the maximum time permitted under section 33G-6(A) for an amount of time no longer than the period starting from the time the applicant for equitable tolling first exercises the right to appeal the prior adverse administrative zoning decision until the conclusion of the appellate process, as provided under the Code of Miami-Dade County. The Executive Council shall have the discretion to approve an for equitable tolling of the traffic capacity reservation period for an amount of time less than or equal to the time consumed in procuring the final appellate determination reversing the adverse administrative decision. An applicant for equitable tolling of traffic capacity reservation must exhaust all administrative remedies, including the maximum extension of capacity reservation permitted under section 33G-6(A), prior to filing an application of equitable tolling of the traffic capacity reservation period under this subsection:

(ii)

Administrative zoning decision shall mean any order, requirement, decision or determination made by an administrative official in the interpretation of any portion of the zoning regulations, or of any final decision adopted by resolution that is subject to review pursuant to section 33-311(A)(2) of the Code of Miami-Dade Country;

(iii)

Appellate decision shall mean any subsequent review of an administrative zoning decision, whether by a community zoning appeals board, the Board of County Commissioners or an appellate court with jurisdiction of the matter.

(b)

An application for equitable tolling traffic capacity reservation period may be granted upon a finding that:

(i)

The applicant has been aggrieved by an adverse administrative zoning decision and that decision has been reversed by an appellate decision that has become final;

(ii)

There was no intent to mislead the public or the zoning authority on the part of the applicant for equitable tolling of the traffic capacity reservation period at any time;

(iii)

Failure to approve the application for equitable tolling of the traffic capacity reservation period would lead to an unjust result and would be contrary to the principles and considerations of fundamental fairness; and

(iv)

Either:

(a)

The prior adverse administrative zoning decision prevented the applicant from obtaining a building permit; or

(b)

The Executive Council determines that because of the prior adverse administrative decision, development of the subject property would have been impracticable. The applicant may demonstrate impracticability by producing evidence, included, but not limited to, showing that in the absence of approval of the equitable tolling application, the property can not be developed or is otherwise unmarketable.

(4)

All applications for equitable tolling of traffic capacity reservation period shall be filed with the Director on a form prescribed by the Director to accomplish the purpose of this section, and shall comply with the requirements of section 33G-6 of this Article. In addition to the information sought through section 33G-6, the form shall require information relevant and material to the request for equitable tolling including but not limited to:

(a)

A copy of the underlying original adverse administrative zoning decision, and

(b)

A copy of the resolution or order reversing the underlying adverse administrative zoning decision.

(5)

Within 15 days after receipt of an application for equitable tolling, the Director shall determine and notify the applicant whether the application information is sufficient to enable the DIC Executive Council to issue a determination, and the Director shall request any additional information needed. If the Director determines that the information in the application is not sufficient, the applicant shall either provide additional information as requested, or shall notify the DIC Coordinator in writing that the information will not be supplied and the reasons therefor. If the applicant declines to provide the requested information, the DIC Executive Council shall act on the application as filed. If the applicant does not respond to the request for additional information within 90 days, then the application shall be deemed to have been withdrawn. If the applicant provides requested additional information, the Director shall, within 15 days from receipt of the additional information, determine whether the additional information furnished is sufficient to comply with this request. If the additional information is not sufficient, the Director shall notify the applicant of the respects in which the information does not comply with the original request. When all requested information is received, the application will be considered sufficient and the applicant will be so notified.

(6)

The DIC Executive Council shall review the completed application and any additional information provided. It shall consider all written administrative decisions and judicial rulings made part of the record by the Director during the investigation and evaluation of the application. The Director may solicit and shall accept submission of relevant information from any other appropriate departments or agencies of Miami-Dade County. The applicant shall be given an opportunity to address the DIC Executive Council and present argument in favor of its application, and respond to any questions or concerns raised by members of the DIC Executive Council. Review shall be limited to the issue of equitable tolling and the appropriate appellate determinations.

(7)

Within sixty (60) days after acknowledging receipt of a sufficient application, or receiving notification that additional information requested pursuant to subsection (5) will not be supplied, the DIC Executive Council shall review the application in accordance with the procedures contained herein and shall issue its determination. The time for issuance of the determination by the DIC Executive Council may be extended by agreement between the applicant and the DIC Executive Council. A determination to grant an application for equitable tolling of the traffic capacity reservation period shall contain findings of fact and conclusions supporting the determination.

(Ord. No. 92-84, § 1, 7-21-92; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 98-125, § 27, 9-3-98; Ord. No. 00-78, § 1, 6-6-00; Ord. No. 17-43, § 8, 7-6-17)