Cape Coral City Council determined Wednesday that North Medical Land Company had not established a vested right for the development of planned car wash on property it owns at Del Prado Blvd N and Dan LeDuke Road.

The quasi-judicial hearing came at the request of the company as a result of a Council-adopted moratorium on new car washes.

The vote was 7-1, Councilmember Tom Hayden dissenting.

Bryan Stanley, an attorney for Boos Development Group Inc, the contract buyer that planned to develop the site, said Mr. Car Wash, the planned user, is a nationally recognized car wash operator.

He said the entities were not aware of the city’s intent to impose a moratorium until recently and that a car wash was an allowable use when they began working with city staff on the project.

“We did spend quite a bit of money with engineers, architects, legal fees, contracting and marketing analysis,” he said. “We believe it would be highly inequitable and Boos would be out a significant amount of money for adoption of a moratorium that basically occurred after we received the site plan comments.”

City staff contended that a vested right to move forward with the project had not been established.

According to the timeline:

A pre-application meeting was held Dec. 19, 2023, and a site development plan was received on April 11, 2024, followed by a vested rights determination application July 15, 2024.

The vested rights determination application was submitted because the ordinance allows the owner who has submitted a site development plan of a car wash on or after March 20, 2024, but prior to the moratorium ordinance of April 17, the opportunity to apply to the city no more than 90 days from its adoption date.

City staff, as well as representatives for the applicant, Boos Development Group, Inc. spoke Wednesday.

There are three vested rights determination standards that must the proven, according to section three of city ordinance 16-24:

• An application for administrative review for a development permit, building permit, site plan approval, and any other official action by the city for a car wash facility was received on or after March 20, 2024, the date this ordinance became a pending ordinance and prior to April 17, 2024, the effective date of this ordinance.

• Upon which the property owner has detrimentally relied, in good faith, by making substantial expenditures

• That would be highly inequitable to deny the property owner the right to complete the development of the new car wash facility.

City staff contended that only one of the three had been met.

Mike Struve, planning team coordinator, said the site plan came in for review between March 20, and April 17, when the moratorium went into effect, so that first standard had been met.

He said, though, when the developer first approached the city in December 2023, the city was not then considering a moratorium.

“To my knowledge there was no discussion internally amongst staff about looking at a moratorium. That occurred 30 days later,” Struve said. “The information that we provided them was accurate and in good faith.”

Other areas where the city demonstrated good faith was with public hearing notices published for the introduction of the moratorium, two public hearings, articles in newspapers, news media coverage, and radio, city officials said.

Struve said the property owner did appear at the public hearings on April 3, and April 17.

Discussion regarding substantial expenditures was also had.

Struve said staff was not contending that $174,000 is insignificant or inconsequential. He said that is the amount is the money the applicant can document as spent to this point.

“What we think this represents is a project in its infancy based on the amount spent,” Struve said.

Councilmember Bill Steinke said it was a tough decision but, as Council was acting as a quasi-judicial body, the request for a vested right came down to not what was fair but what the law requires and whether that was met.

“We are put in a position for the interpretation and application of the law, not on feelings. Two of the three components involve fairness. How do you develop legislation around fairness? The interpretation of what is fair and not fair is really tough for me,” he said.