STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT S. CARSWELL - )

THE MOON PROPERTY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0248VR

) CITY OF TALLAHASSEE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this cause came before James W. York, duly designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida, on June 6, 1991.

APPEARANCES

For Petitioner: Scott S. Carswell, pro se The Moon

Post Office Box 1717 Tallahassee, Florida 32302

For Respondent: John H. Sytsma, Esquire

Henry, Buchanan, Mick & English, P.A.

117 South Gadsden Street Post Office Drawer 1049 Tallahassee, Florida 32302

STATEMENT OF ISSUE

Whether Scott S. Carswell, The Moon Property (Petitioner), has demonstrated that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.

PRELIMINARY STATEMENT

An Application for Vested Rights Determination dated October 3, 1990, was filed with the Tallahassee-Leon County Planning Department by Petitioner. The Application for Vested Rights determination was ultimately reviewed by the City of Tallahassee (Respondent) and was denied. Notice of the denial was provided to Petitioner by letter dated December 14, 1990. By letter dated December 21, 1990, the denial was appealed by the Petitioner.

Pursuant to an agreement of the parties, a hearing was held on December 10, 1990, to provide Petitioner an opportunity to present his case concerning the vested rights determination of the undeveloped property east of The Moon. At the commencement of the hearing, which was conducted in accordance with City of Tallahassee Ordinance Number 90-0-0043AA, exhibits and certain documents were accepted into evidence.

At this hearing before the Staff Committee, Martin Dix and John Lovett made an appearance for Petitioner. On behalf of The Moon Property, they presented the testimony of Alban Stewart and Scott S. Carswell. The Respondent offered the testimony of Martie Black and Rob Magee.

The Staff Committee denied the appeal of Petitioner on December 14, 1990. Petitioner filed a notice of appeal, and the Respondent referred the matter to the Division of Administrative Hearings. This matter was initially scheduled for hearing on February 19, 1991. At the request of the Petitioner, this matter was first continued until April 8, 1991, and then again to June 6, 1991.

On May 10, 1991, counsel for Petitioner moved to withdraw based upon inability to communicate with the client. Petitioner was provided notice of the Motion to Withdraw by U. S. Mail. On May 22, 1991, having received no objection from Petitioner, the undersigned issued an Order allowing Petitioner's counsel to withdraw and reaffirming the previously scheduled hearing date of June 6, 1991.

On June 6, 1991, the vested rights appeal was heard at the Division of Administrative Hearings before the undersigned.

Scott S. Carswell, pro se, presented the testimony of Alban Stewart. The Respondent did not offer any testimony. It was agreed that the exhibits within the Petitioner's application and Vested Rights Determination Staff Committee Hearing would provide the exhibits of this hearing. Mr. Sytsma, appearing for the City, objected to a new exhibit proffered by Mr. Carswell.

The objection was sustained as the exhibit went beyond the record. The parties were informed that they could file a Proposed Final Order before the Final Order was issued. Both parties agreed to file a Proposed Final Order by July 15, 1991. Respondent filed its Proposed Final Order in a timely manner, and the Proposed Final Order was considered and utilized in the preparation of this Final Order. Petitioner did not file a proposed final order. Specific rulings on Respondent's proposed findings of fact are included in the Appendix to this Final Order.

The record and exhibits will be referenced in the following form. References to the record of the hearing conducted by the Staff Committee on December 10, 1990, will be shown as: (R-1, p.

1. or (R-1, Exhibit 4). References to the record of the final hearing conducted on June 6, 1991, will be shown as (R-2, p. 10).

   
   

   FINDINGS OF FACT

   
   

   Chronology

   
   

   1. The property on which "The Moon" building is located was initially purchased by Grant Peeples and Scott S. Carswell in 1984. The Peeples/Carswell partnership filed bankruptcy in December 1986, and "The Moon" was closed in April 1987.

      
      

   2. In December 1987, Moon Management, Inc. (Scott S. Carswell and Tallahassee Entertainment Facility, Inc.) executed a partnership agreement to reopen "The Moon" and continue its operations.

      
      

   3. In December 1988, Scott S. Carswell, Moon Management, Inc., repurchased the Moon property from the Florida National Bank.

      
      

   4. In November 1989, the Respondent City of Tallahassee published a caveat announcing the preparation of the 2010 Comprehensive Plan and advising that land use designations would be changed pursuant to the Plan.

      
      

   5. On February 1, 1990, the Respondent submitted its 2010 Comprehensive Plan to the Florida Department of Community Affairs.

      
      

   6. In March 1990, Petitioner entered into a 50 year lease agreement for the property at issue, which is vacant property

      immediately east of the property on which "The Moon" building is located. This agreement also provided for Petitioner's purchase of a 10 foot by 330 foot parcel immediately west of the "Moon" property.

      
      

      Zoning History

      
      

   7. The property at issue in this proceeding is part of a portion of property located on the south side of Lafayette Street between Seminole Drive and Magnolia Drive in the City of Tallahassee. The development project Petitioner seeks to have vested would involve commercial development of vacant land located between the existing "Moon" building and an existing strip shopping center. With the exception of the vacant property, the entire parcel on the south side of Lafayette Street between "The Moon" building and parking lot and Magnolia Drive to the east, is currently developed and houses commercial business enterprises.

      
      

   8. Petitioner leased the subject property from Alban Stewart in March 1990. This property has been zoned for commercial uses since 1955. The Stewart family began developing property within the tract in 1960. The building occupied by "The Moon" was constructed in 1962.

      
      

   9. "The Moon" building was originally constructed for, and occupied by, a super market. Since this building was sold to Scott S. Carswell and his partners in 1984, the building has been occupied by "The Moon" and, with the exception of a short period while "The Moon" was in bankruptcy, has operated as a commercial entertainment facility.

      
      

   10. In 1988 Petitioner Carswell attempted to obtain approval from the Respondent City of Tallahassee to expand "The Moon" operation on property west of the existing building. Petitioner's requested variance was not granted because the proposed expansion encroached into a buffer zone between "The Moon" facility and Seminole Drive. During negotiations with Respondent regarding this 1988 zoning variance request, City officials suggested that Petitioner consider developing east of "The Moon" facility, which was at that time zoned for commercial use.

       
       

   11. When Petitioner Carswell was unable to obtain a variance to proceed with his plans to expand west of "The Moon" building, he began plans and negotiations to develop east of the existing facility. Theee plans and negotiations culminated in

       the lease agreement which Carswell entered into with Alban Stewart in March 1990.

       
       

   12. In the meantime, the 2010 Comprehensive Plan was adopted by the Respondent and submitted to the Department of Community Affairs in February 1990. Land use provisions within the Plan changed the zoning of the property at issue to a designation of residential preservation. The residential preservation designation does not permit the Petitioner's development for commercial purposes.

       
       

   13. The property at issue does not meet any of the Comprehensive Plan criteria for residential preservation designation.

       
       

       Permitting

       
       

   14. Construction for the proposed expansion has not been undertaken.

       
       

   15. No permits have been issued for any structures on the proposed development.

       
       

   16. There have been no plat approvals for the structures in the proposed development.

       
       

       Petitioner's Application for Vested Rights

       
       

   17. On or about October 3, 1990, Scott S. Carswell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with the Tallahassee-Leon County Planning Department. (Application VR0082T)

       
       

   18. The following information concerning the development of The Moon property was contained on the Application:

       
       

       1. "Scott S. Carswell is listed as the President, Tallahassee Entertainment Facility, Inc."

          
          

       2. The project is described as consisting of "existing commercial uses of property as well as uses proposed for property."

          
          

       3. The property location is described as "on Lafayette Street between Seminole Drive and Magnolia Drive and contains

          approximately 9.39 acres as shown in Exhibit 4, site plan."

          
          

          
          

          as:

       4. "Progress . . . Toward Completion" is described

          
          

          1. plans (R 2, p. 20, Line 9-21, Line 13).

             
             

          2. purchase of fixtures (R-2, p. 21, Line 22, p. 22, Line 10).

             
             

          3. lease of property (R-2, p. 23, Line 9-17).

             
             

       5. Expenses for proposed facility

          
          

          1. March 31, 1990, lease agreement for

             $3,200 per month. (R-1, Exhibit 8c)

             
             

          2. July 19, 1990, The Moon Expansion for

             $5,000. (R-1, Exhibit 8c)

             
             

          3. March 6 - April 30,1990,"Club Development $9,231.83." (R-1, Exhibit 8d)

             
             

          4. May 25,1990,Planning cost.(R-1, Exhibit 8e)

             
             

       6. Planning Dates

          
          

          1. September18,1990,Captain Tony's proposal. (R-1, Exhibit 5d)

             
             

          2. May 25,1990, letter of interest for Captain Tony's. (R-1, Exhibit 7 A-4)

             
             

          3. April 4, 1990, completed plans for project, estimate of costs. (R-1, Exhibit 7 A-5)

             
             

   19. The Application lists substantial additional expenses which were in fact associated with the original structure and

       operation of "The Moon" and do not relate to Petitioner's proposed expansion/development.

       
       

       Common Law Vesting

       
       

   20. Petitioner seeks approval of the Application for Vested Rights based upon the common law vesting provisions pursuant to the City of Tallahassee Ordinance 90-0-0043AA. Petitioner does not assert a claim of statutory vesting.

       
       

       CONCLUSIONS OF LAW

       
       

       Jurisdiction

       
       

   21. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes, and City of Tallahassee Ordinance No. 90-0 0043AA (the "Ordinance").

       
       

       The Ordinance

       
       

   22. Pursuant to Section 163.3167, Florida Statutes, the City was required to prepare a comprehensive plan governing the use and development of land located within the City of Tallahassee. In compliance with Section 163.3167, Florida Statutes, the City adopted a comprehensive plan (2010 Comprehensive Plan), which was submitted to the Florida Department of Community Affairs for review on February 1, 1990.

       
       

   23. The City adopted the Ordinance to insure that existing rights to develop property of Tallahassee property owners, created by the Constitutions of the State of Florida and the United States, are not infringed upon by application of the 2010 Comprehensive Plan. The purpose of the Ordinance is to establish the:

       
       

       . . . sole administrative procedures and standards by which a property owner may demonstrate that private property rights have vested against the 2010 Comprehensive Plan. (Section IA of the Ordinance.)

       
       

   24. Pursuant to the Ordinance, any Tallahassee property owner who believes that his or her property rights to develop are vested, and therefore believes that the property may be developed without complying with the 2010 Comprehensive Plan, must file an application provided by the City within 120 days

       after July 1 1990. If an application is filed pursuant to the Ordinance and it is determined that development rights have vested, the consistency and concurrency requirements of the 2010 Comprehensive Plan do not apply to the property.

       
       

   25. Applications to determine if development rights have vested are initially reviewed for technical correctness by the Tallahassee-Leon County Planning Department's (Planning Department) staff. (Section III.3.a. of the Ordinance.) Once the Application is accepted, the staff of the Planning Department makes the initial determination as to whether development rights are vested. Id. If staff cannot determine whether an applicant's development rights in the property are clearly and unequivocally vested, a hearing before a Staff Committee consisting of the City Attorney, the Director of Planning, and the Director of Growth Management is to be conducted within fifteen days after the Planning Department staff's decision. (Section III.3.c. of the Ordinance.) A hearing before the Staff Committee may also be requested by an applicant if staff determines that the applicant's property is not vested. Id.

       
       

   26. An applicant is required to present all evidence in support of his or her application at the hearing before the Staff Committee. (Section III.3.d. of the Ordinance.) At the conclusion of the hearing the Staff Committee must "adopt a decision of approval, denial, approval with conditions, or to continue the proceedings to a date certain." Id. Written notice of the Staff Committee's decision is to be provided within ten calendar days after the hearing. Id.

       
       

   27. If a hearing before the Staff Committee is waived or if the decision of the Staff Committee is adverse to the applicant, Section III.3.e. of the Ordinance provides for an appeal to a Hearing Officer. The nature of such an appeal is set out in Section III.3.e.1 of the Ordinance:

       
       

       This "appeal" is not intended to mean an appeal in the traditional sense, that is, only a review of the Staff Committee record of their hearing. The Hearing Officer "appeal" shall be construed in its broadest, non-technical sense, which is merely an application to a higher authority for a review of the Staff Committee action taken.

   28. In reviewing the action taken by the Staff Committee, Section III.3.e.3 of the Ordinance provides the following:

       
       

       If the Staff Committee record of the hearing is full and complete, the Hearing Officer may determine that the record is the only evidence that is necessary. However, the Hearing Officer may determine that additional evidence and oral or written testimony, including cross-examination, is necessary to properly evaluate the Staff Committee's action and render a decision as to its validity. The Hearing Officer shall have the authority to determine the need for additional evidence and/or testimony.

       
       

   29. Section III.3.e.5 and 6 of the Ordinance governs the manner in which an appeal is filed and the manner in which any hearing conducted by a Hearing Officer is to be conducted.

       
       

   30. Section III.3.e.7 of the Ordinance governs a Hearing Officer's decision:

       
       

       1. The Hearing Officer shall review the record and testimony presented at the hearing before the Staff Committee, if any, and at the Hearing Officer's hearing . . . .

          
          

       2. The Hearing Officer shall be guided by the previously adopted comprehensive plan, the adopted 2010 Comprehensive Plan, the Land Development Regulations, this ordinance, and established case law.

          
          

       3. The burden shall be upon the appellant to show that the decision of the staff or Staff Committee cannot be sustained by a preponderance of the evidence or the staff or Staff Committee decision departs from the essential requirements of law.

          
          

       4. The Hearing Officer's determination shall include appropriate findings of fact, conclusions of law, and decisions in the matter of the appeal. The Hearing Officer may affirm, affirm with conditions, or

          reverse the decision of the staff or the Staff Committee.

          
          

       5. The Hearing Officer shall file his written determination on each appeal with the Director within thirty (30) calendar days of the date of appeal hearing and a copy shall be provided to the City Clerk and the applicant.

          
          

   31. Section IV of the Ordinance governs the determination of whether an applicant's development rights have vested. Section IV.A of the Ordinance provides two situations where development rights will be considered vested: "common law vesting" and "statutory vesting."

       
       

   32. In this appeal, Petitioner does not contend that the development meets the definition of statutory vesting and argues that its development rights have vested pursuant to the common law vesting definition of the Ordinance. (R-2, p. 8) "Common law vesting" is defined as:

       
       

       A right to develop or to continue the development of property notwithstanding the 2010 Comprehensive Plan may be found to exist whenever the applicant proves by a preponderance of evidence that the owner, acting in good faith upon some act or omission of the city, has made a substantial change in position or has incurred such extensive obligations and expenses that it be highly inequitable and unjust to destroy the right to develop or to continue the development of the property.

       
       

       (Section IV.1.a. of the Ordinance.) The Petitioner's Application

   33. The issue for determination in this case is whether the Petitioner has proven that his Application for Vested Rights meets the criteria for common law vesting pursuant to the Ordinance. Common law vesting under the Ordinance contains essentially the same elements of proof as those required to establish equitable estoppel pursuant to case law. Florida courts have described the doctrine of equitable estoppel as follows:

       
       

       The doctrine of equitable estoppel will limit a local government in the exercise of its zoning power when a property owner (1)relying in good faith (2) upon some act or omission of the government (3) has made a substantial change in position or incurred such excessive obligations and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired.

       
       

   34. Smith v. Clearwater, 383 So. 2d 681, 686 (Fla. 2nd DCA 1980). See also, Key West v. R. L. J. S. Corporation, 537 So.

       2d 641 (Fla. 3rd DCA 1989); and Harbor Course Club, Inc. v. Department of Community Affairs, 510 So.2d 915 (Fla. 3rd DCA 1987)

       
       

       Petitioner's Good Faith Reliance

       
       

   35. Throughout the proceedings in this case, the Petitioner has argued that he has relied upon the following governmental actions:

       
       

       1. C-2 zoning of the property prior to the adoption of the 2010 Comprehensive Plan.

          
          

       2. A 1962 agreement entered into between the City of Tallahassee and a neighborhood association concerning commercial zoning of the corner parcel of property where the original super market facility (now occupied by "The Moon") was constructed. This agreement provided for a buffer zone to the west of "The Moon" building which was cited as a basis for disapproval of Petitioner's earlier request for a variance to expand and develop his commercial operation.

          
          

       3. Suggestions by City officials at the time Petitioner's earlier application for variance to develop west of "The Moon" building that Petitioner develop the proposed project on the east side of the building.

       
       

       Pursuant to the Ordinance, "A zoning classification or a rezoning does not guarantee or vest any specific development

       rights." Section IV.1.d., City of Tallahassee Ordinance No. 90- 0-0043AA. This provision of the Ordinance is consistent with Florida case law. See, Miami Beach v. 8701 Collins Ave., Inc.,

       77 So. 2d 428 (Fla. 1955); Pompano Beach v. Yardarm Restaurant, Inc., 509 So. 2d 1295 (Fla. 4th DCA 1987); Lauderdale Lakes v. Conn, 427 So. 2d 239 (Fla. 4th DCA 1983); and Gainesville v. Cone, 365 So. 2d 737 (Fla. 1st DCA 1978).

       
       

   36. Petitioner's reliance on prior zoning of the property in question is not sufficient to establish the "good faith reliance" element of common law vesting.

       
       

   37. The 1962 agreement between the Respondent and the property owners relied upon by Petitioner obligates the City to maintain certain buffer zones west of what is now "The Moon" building. The agreement further provides that the neighborhood association will not oppose commercial development east of the existing building. This agreement does not contain any representation by the Respondent regarding future development of the property at issue in this proceeding.

       
       

   38. Petitioner's argument that he relied upon previous statements by City officials encouraging him to develop east of "The Moon" building is not persuasive in supporting this Application for Vested Rights. These statements were alleged to have been made in 1988. Respondent issued published notice of its intent to develop and adopt a comprehensive plan in November 1989. The plan was ultimately adopted by Respondent in February 1990. The changes in position and obligations Petitioner argues that he incurred based upon these statements occurred in March 1990. Therefore, these changes of position by Petitioner occurred subsequent to the City's adoption, after public notice, of the Comprehensive Plan.

       
       

   39. At the final hearing in this case, Petitioner argued that the Respondent's notice of adoption of the Comprehensive Plan was not sufficient. Under the facts and circumstances of this case, Petitioner's claim of lack of notice of the adoption of the plan is rejected.

       
       

       Petitioner's Development Expenses

       
       

   40. The Respondent correctly argues that the expenses Petitioner asserts were incurred in good faith reliance upon acts or omissions of the City prior to the adoption of the Comprehensive Plan were associated with the original structure and operation of "The Moon." Petitioner's obligations and

       expenses associated with the proposed development occurred after the Respondent had adopted the Comprehensive Plan and had submitted the Plan to the Department of Community Affairs.

       
       

       Permits

       
       

   41. The City of Tallahassee has not issued any permits, easements, or agreements to Petitioner regarding the new project.

       
       

       The Change in Zoning

       
       

   42. Pursuant to the Comprehensive Plan, Petitioner's property was down zoned from C-2 to residential preservation. The record clearly establishes that the property does not meet any of the Comprehensive Plan criteria for the residential preservation designation. The residential preservation designation is inconsistent with existing and long standing commercial use of property on both the east and west sides of the vacant property proposed for development.

       
       

   43. It is unclear from the record in this proceeding how or why the adoption of the Comprehensive Plan resulted in this particular change in land use designation. There is a strong suggestion that a scrivener's error in preparation of the land use designation portions of the plan resulted in the current status of the zoning of the property. Petitioner argues that this zoning is illogical and destroys any commercially feasible development rights in the property.

       
       

   44. The change in zoning classification of Petitioner's property is a troublesome aspect of this case. However, the jurisdiction of the Division of Administrative Hearings in this proceeding is limited to the terms of the Ordinance. The undersigned has no jurisdiction to change the zoning classification of the property in question.

       
       

   45. The issue in this proceeding is whether Petitioner's development rights are vested against the provisions of the 2010 Comprehensive Plan based upon the common law vesting provisions of the Ordinance. In order to prevail in this proceeding, Petitioner has the burden of proving the elements of equitable estoppel. Petitioner failed to meet that burden. Therefore, even if the property in question had a commercial zoning designation, the development would not be vested against the 2010 Comprehensive Plan and any future development of the

       property would be subject to the provisions and restrictions of the Plan.

       
       

       CONCLUSION

       
       

   46. Petitioner has failed to prove that the decision of the Staff Committee cannot be sustained by a preponderance of the evidence or that the decision of the committee departs from the essential requirements of law.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the denial of Petitioner's Application by the Staff Committee is AFFIRMED.

DONE and ORDERED this 25th day of July, 1991, in Tallahassee, Florida.

JAMES W. YORK, Hearing Officer Division if Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1991.

APPENDIX

Respondent's proposed findings of fact are adopted in material part in this Final Order.

COPIES FURNISHED:

Scott S. Carswell The Moon

Post Office Box 1717 Tallahassee, Florida 32302

John H. Sytsma, Esquire

Henry, Buchanan, Mick & English, P.A.

117 South Gadsden Street Post Office Drawer 1049 Tallahassee, Florida 32302

Sandy O'Neal, Clerk

Board of County Commissioners Leon County Courthouse Tallahassee, Florida 32301

Mark Gumula

Director of Planning

Tallahassee-Leon County Planning Department

300 South Adams Street Tallahassee, Florida 32301

NOTICE OF APPEAL RIGHTS

Judicial review of this decision is available to the Petitioner and Respondent and shall be by common-law certiorari to the Circuit Court of the Second Judicial Circuit.

Docket for Case No: 91-000248VR

Orders for Case No: 91-000248VR