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Approved 4/22/2014 OC Board of Adjustment – 11/11/2013 Page 19 of 123 single family lots, the 216 multi-family units and the 65,460 square foot of commercial complex shall be 1 constructed in accordance with the site plan dated October 19, 1985 and revised January 2, 1986 and all 2 commitments shall be contained in the narrative statement of the project all of which are incorporated herein and 3 made a part of this special use permit”. That means that these ratios in these plans are the ratios that apply to 4 this special use permit. This special use permit is incorporating the regulations that were in place when it was 5 approved. Mr. Collins, in his comment to the County Commissioners in 1986 when the IV-B-7-b regulations were 6 being considered, talked about this project being exempt were his words. I commented at the time that I may 7 quibble with that term but he was on the right track. Essentially, our contention is this project was vested in those 8 regulations that were in effect at the time it was approved. I will tell you this is a variation of the vesting principle 9 that is, in my experience, never been looked at by the courts. Normally, the way vesting comes up in court is the 10 developer complies with or there is an argument as to whether the developer has complied with some statutory 11 vesting principles or whether the developer has complied with what is called common law vesting. The argument 12 is always between the developer and the government and that is what the vesting principle does, it protects the 13 developer from losing the benefit of their permit because of changes in regulations over time That is fairness, due 14 process or whatever you want to call it but in this case, both the permit holder and the government agree that the 15 permit holder has the right to build this development according to these recreation standard in effect when this 16 project was approved. There is no disagreement. There was no challenge to that conclusion and the recreation 17 requirements were amended between the SUP approval and its recording in 1998. Nobody raised this point. 18 The first time it comes up is 2008, ten years after this permit was recorded and over 20 years from the time it was 19 approved and after $100 million dollars and that is just Geof making up a number. You pick the number about 20 what this project is worth. One hundred million dollars later, somebody says wait a minute; you didn’t apply the 21 right recreation standards. That is the underpinning the vesting concept. It’s not fair; I would contend to you that 22 Mr. Buck lacks standing to raise the issue he raised. He lacks standing complained about the county’s 23 application of recreation standards that existed at the time this project was approved. Multiple plats were 24 recorded, multiple site plans were approved and then in 2008, wait a minute, you didn’t do it right. That flies in 25 the face of due process and it is not the county’s position and the developer has not agreed to that change and 26 there was no disagreement among the two of them. We looked at the appeal document that is Exhibit A, Mr. 27 Buck’s appeal, every one of these itemized concerns has to do with compliance with subdivision regulations. 28 This board doesn’t have jurisdiction over subdivision. You don’t have jurisdiction to resolve subdivision 29 regulations issues like you do zoning regulation issues. The underpinning of Mr. Buck’s appeal is the subdivision 30 regulations if you ignore for this purpose when they were adopted and he is complaining about subdivision 31 regulations not being applied. That is not within the Board of Adjustment’s power to determine whether that is 32 true or not. That has to go another place to get a remedy and there is lots of stuff that Mr. Buck has talking about 33 efforts made to go to the County Commissioners or where ever about these concerns, none of which were fruitful 34 and that is the end of that so Mr. Buck cannot raise the subdivision concerns with you in this appeal. That is 35 everything he is complaining about. If you look at the zoning ordinance, every one of them, it has you, this group. 36 If you look at the subdivision regulations, it is completely absent. You are not part of the subdivision regulations. 37 A complaint that the SUP did not meet county subdivision requirements when it was approved, not appealed 38 must go to superior court. Let’s look at the heart of Mr. Buck’s, now he has put a whole bunch of new stuff in 39 here that I have not had time to look at. I am going to look at what he had in here when he presented into 40 evidence last time. His contention in the evidence he has presented to you. Let’s look at the documents that Mr. 41 Buck presented to you in his evidence. Now look at Exhibit K…something you received from Mr. Buck and it was 42 admitted into evidence. What he called Exhibit K. Essentially it is a November 1, 2006 letter from Mr. Benedict to 43 Mitch Barron, Newland Communities about the recreation requirements. In this letter, Mr. Collins is making a 44 point that in their view, there are deficiencies in the recreation and because of those deficiencies; the 45 development currently lacks much of the 7 acre active recreation area required by Condition 27. That is part of it 46 but from the county’s perspective what is particularly important is Mr. Benedict’s reference to the county holding 47 public hearings with changes in these regulations that came about later after the permit was approved and his 48