STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TERRANCE H. FREGLY, )
)
Appellant, )
)
vs. ) CASE NO. 91-0332VR
)
LEON COUNTY, )
)
Appellee. )
)
FINAL ORDER
This case came before the undersigned pursuant to Section 120.65(9), Florida Statutes (1989), and Leon County Ordinance No. 90-31, adopted July 16, 1990.
STATEMENT OF THE ISSUE
Whether the Appellant, Terrance H. Fregly, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
PRELIMINARY STATEMENT
An Application for Vested Rights Determination dated August 20, 1990, was filed with the Tallahassee-Leon County Planning Department by the Appellant, Terrance H. Fregly. The Application for Vested Rights Determination was ultimately reviewed by the Appellee, Leon County, and was denied. Notice of the denial was provided to Mr. Fregly by letter dated December 19, 1990. By letter dated January 2, 1991, the denial was appealed by Mr. Fregly. On or about January 11, 1991, Leon County referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer. Mr. Fregly also filed a petition with the Division of Administrative Hearings dated February 22, 1991.
Pursuant to an agreement of the parties, a hearing was held on April 17, 1991, to give the parties an opportunity to supplement the record with additional documentary evidence and testimony. At the commencement of the hearing, which was conducted in accordance with Leon County Ordinance No. 90-31, the transcript of the hearings (November 26, 1990, and December 17, 1990), before a Leon County "Staff Committee", exhibits filed with the original request for the assignment of a Hearing Officer and certain documents the parties had agreed could be submitted to supplement the record were accepted into evidence.
Mr. Fregly testified on his own behalf and presented the testimony of Elliott Varnum and Rick Wolfarth. Leon County presented the testimony of Martin Black. The parties agreed that the deposition testimony of Ted Mack could be taken and filed subsequent to the conclusion of the hearing. The Appellee informed the undersigned that the Appellant decided not to avail himself of this opportunity.
During the hearing conducted on April 17, 1991, Leon County objected to the introduction into evidence of an unsigned lease agreement, an Environmental Management Act short-form application, an Appraisal of the Subject Property and an unadopted interim zoning code. The testimony of Rick Wolfarth was also objected to and a motion to strike was made. The objections to all of the exhibits except the unsigned lease his hereby sustained. The Motion to strike Mr. Wolfarth's testimony is also granted.
The parties were informed that they could file a proposed final order before this Final Order was issued. Both parties have filed a proposed final order containing proposed findings of facts. A ruling on each proposed finding of fact has been made either directly or indirectly in this Final Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
The Property at Issue.
In approximately 1977-1980, Mr. Fregly purchased several adjoining parcels of real estate. The parcels were to some extent marginally developable property. The total property acquired by Mr. Fregly was approximately 20 or 25 acres and was named the "Lakewood Industrial Center" by Mr. Fregly. The evidence presented by Mr. Fregly did not clearly establish whether the property consisted of 20 or 25 acres. Whatever the total acreage was, it will be referred to collectively as the "25 Acres".
The 25 Acres are located on the east side of Capital Circle, Northwest, Tallahassee, Leon County, Florida.
Mr. Fregly intended to develope the property in accordance with the land uses permitted under the M-2 zoning ordinance in effect in 1977-1980.
At some time after acquiring the 25 Acres, Mr. Fregly developed part of the 25 Acres, by building approximately 65,000 square feet of warehouses on part of the 25 Acres. The warehouses and the real estate (hereinafter referred to as the "Warehouse Acres") they were built on were subsequently sold by Mr. Fregly.
Mr. Fregly also sold another part of the 25 Acres.
In total, by 1985 Mr. Fregly had sold approximately 11 acres of the 25 Acres.
The remaining 14 acres (hereinafter referred to as the "Subject Property"), of the 25 Acres are the subject of the Application for Vested Rights Determination (hereinafter referred to as the "Application"), filed by Mr. Fregly with Leon County, Application VR0042LC0.
The Subject Property is comprised of tax parcel 009, consisting of approximately 4 acres, and tax parcel 210, consisting of approximately 10 acres.
Development of the 25 Acres.
Mr. Fregly obtained approval to rezone part of the 25 Acres from agricultural to M-2 Industrial. The weight of the evidence failed to prove when this occurred. The 25 Acres were zoned partly M-1 and partly M-2.
In April, 1980, Mr. Fregly received from the Leon County Department of Public Works, Leon County Land Clearing and Development Permit No. 1017 (hereinafter referred to as "Permit 1017"). Permit 1017 authorized Mr. Fregly to clear, grade and fill the 25 Acres and to construct a stormwater detention system thereon.
Permit 1017 was applied for by Mr. Fregly with an Application for Permit for Clearing and Development dated as received March 17, 1980. It was indicated on the Application for Permit for Clearing and Development that the purpose of the application is as follows:
Application is hereby made for a permit to make changes in the contour of land proposed to be subdivided, developed, or changed in use by grading, excavating, removal, alteration, or destruction of the natural topsoil, as hereinafter located and described. . . .
The weight of the evidence failed to prove that Leon County made any representation to Mr. Fregly in issuing Permit 1017 concerning the future development of the Subject Property other than authorizing Mr. Fregly to clear and grade the Subject Property for some future unspecified development, subdivision or other change to the use of the Subject Property.
The State of Florida Department of Environmental Regulation issued Construction Permit No. 37-36313-1E (hereinafter referred to as the "DER Permit"), on May 17, 1983. The DER Permit has an expiration date of May 30, 1985.
The DER Permit authorized Mr. Fregly to fill approximately 3.5 acres of wetlands with approximately 9,500 cubic yards of fill. Not all of the 3.5 acres involved in the DER Permit are located on the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property.
The DER Permit was issued pursuant to a Final Order issued by the Department of Environmental Regulation approving a settlement stipulation.
The weight of the evidence failed to prove that Leon County was involved in the granting of the DER Permit or that Leon County made any representation to Mr. Fregly when the DER Permit was issued.
Mr. Fregly also received a federal dredge and fill permit in 1980 or 1981. This permit was not offered into evidence. The weight of the evidence failed to prove what portion of the 25 Acres this permit applied to.
The weight of the evidence failed to prove that Leon County was involved in the granting of the federal dredge and fill permit or that Leon County made any representation to Mr. Fregly when the permit was issued.
Following the issuance of the DER Permit and the federal permit, Mr. Fregly alleged that approximately 109,500 cubic yards of fill material was placed on the Subject Property: 9,500 cubic feet on tax parcel 210 (prior to 1982-1985), and 100,000 cubic feet on tax parcel 009 (from 1982-1985). In light of the fact that the DER Permit also involved property other than the Subject Property, it is not clear whether these figures are correct.
The 25 Acres were cleared and graded.
A master stormwater system to accommodate stormwater runoff from the
25 Acres was constructed.
A paved access road was constructed on the edge of tax parcel 009 and the Warehouse Acres. The road is used for access to the Warehouse Acres and will be used for access to the Subject Property. An easement for use of the road was granted to the purchasers of the Warehouse Acres.
Mr. Fregly intends to extend the access road into tax parcel 210.
The Warehouse Acres were prepared for construction and the warehouses were constructed prior to 1985 when the Warehouse Acres were sold.
The foregoing activities occurred between approximately 1977 and 1985. Much of Mr. Fregly's development activities were associated with the development and sale of the Warehouse Acres and not the Subject Property.
Between 1985 and the filing of the Application, the development of the Subject Property has been marginal.
On July 31, 1989, the Leon County Department of Public Works, Division of Environmental Management, issued Environmental Management Permit No. 890312 for landscape, trees and "special condition" on tax parcel 009 of the Subject Property.
On September 24, 1990, Mr. Fregly applied for Leon County Department of Public Works, Division of Environmental Management, Permit No. 90538 to authorize construction of additional stormwater facilities and landscaping on tax parcel 210 of the Subject Property.
The infrastructure for the Subject Property has not been completed. In particular, the access road for tax parcel 210 of the Subject Property has not been completed.
There has been no subdivision review or processing by Leon County for the Subject Property, no site plan approval for the Subject Property has been sought or granted and no building permits or planned unit development approvals have been issued for the Subject Property. Despite the representation in the Application to the contrary, not all of the permits to develope the Subject Property have been obtained.
Costs Incurred by Mr. Fregly.
Mr. Fregly offered a pleading titled "Chronology & Cost Data" (hereinafter referred to as the "Chronology"), as evidence concerning the costs incurred in the development of the 25 Acres, including the Subject Property. Pursuant to the Chronology, Mr. Fregly has suggested that he has incurred
$172,846.21 since the 25 Acres were acquired.
In Mr. Fregly's proposed final order it has been suggested that approximately $118,000.00 of the amounts listed on the Chronology were incurred for "site work, clearing, grading, filling, construction of the stormwater management system and access roadway". Exactly which of the cost items listed on the Chronology have been included in the $118,000.00 is not clear. In the conclusions of law of Mr. Fregly's proposed final order it has also been suggested that Mr. Fregly incurred in excess of $160,000.00 in expenses. Exactly what expenses make up this amount is also not clear.
The weight of the evidence failed to prove the extent to which the following costs listed on the Chronology were incurred only for the Subject Property: $12,300.00 for "A. Dredge & fill permit"; $1,200.00 for "B. Engineering fee - Dredge & Fill DER & Federal"; $4,700.00 for "C. Engineering fee - Stormwater design Leon County"; $3,700.00 for "D. Pipe & Dredge ditch . .
."; $22,535.45 for "E. Road construction"; and $3,900.00 for "F. DOT entrance".
The costs listed in paragraphs A-F of the Chronology were attributable in part to the Warehouse Acres. For example, the $22,535.45 was for paving the access road and "parking between warehouses." This amount is primarily attributable to the Warehouse Acres and only partly to the Subject Property.
It is also not clear whether the costs allegedly attributable to filling the Subject Property are attributable only to the Subject Property. Based upon information provided to DER on John W. DuBose, PLS, letterhead attached to the stipulation agreement entered into by Mr. Fregly and the Department of Environmental Regulation agreeing to the issuance of the DER Permit as Attachment A, it appears that the DER Permit authorized fill to be placed on tax parcel 423 which is not a part of the Subject Property. The weight of the evidence failed to prove whether tax parcel 423 was filled or whether the costs associated with filling submitted were only incurred for filling the Subject Property.
Based upon the foregoing findings of fact, the weight of the evidence failed to prove what part of the costs listed on the Chronology or testified about by Mr. Fregly are attributable to the development of the Subject Property. It cannot, therefore, be determined the extent of any detriment which Mr. Fregly may have suffered as a result of any alleged Leon County representation concerning the development of the Subject Property.
All of the costs listed in the Chronology were incurred after Permit 1017 was acquired.
The weight of the evidence failed to prove that the costs incurred by Mr. Fregly in reliance on the issuance of Permit 1017 were substantial. All that Permit 1017 authorized Mr. Fregly to do was to clear, grade and fill the 25 Acres and to construct a stormwater detention system. As Mr. Fregly knows, the laws governing the approved uses of land can change. It cannot, therefore, be concluded that Mr. Fregly reasonably believed that the issuance of Permit 1017 would allow him to fully develope the 25 Acres, or more particularly, the Subject Property, more than ten years later without any change in the laws governing how the Subject Property was to be changed.
Development of the Property under the 2010 Plan.
Mr. Fregly intends to develope the Subject Property by building 57,000 square feet of warehouse and office space. The weight of the evidence failed to prove that Mr. Fregly ever informed Leon County or that Leon County was aware of this intended use of the property until these proceedings commenced.
Throughout these proceedings, Mr. Fregly, who was proffered and qualified as an expert in commercial real estate development, testified that there was an executed "lease" on the Subject Property. Representations that there is an executed lease are made several times in the Application filed by Mr. Fregly. The weight of the evidence, however, failed to prove that such a lease exists. At best, Mr. Fregly proved that he has a "gentleman's agreement" concerning a proposed lease of part of the Subject Property.
Mr. Fregly's proposed development of the Subject Property would be allowed under the M-1 and M-2 zoning of the Subject Property.
For purposes of the 2010 Comprehensive Plan, the Subject Property is currently in a Mixed-Use B, land-use designated area.
Under the current zoning of the Subject Property, there are a substantial number of possible uses that are authorized, but the extent of such uses is limited, based upon similar existing uses within the zone the property is located. There are also restrictions involving permeability, transportation, utilities and the effects on adjacent landowners.
Leon County has issued a certificate of concurrency for part of tax parcel 210. The certificate indicates concurrency compliance for a bulk storage facility of 6,000 square feet, plus 1,500 square feet of office space.
Mr. Fregly has not asked Leon County to perform a formal consistency review of the Subject Property.
The weight of the evidence failed to prove that the Subject Property does not meet the concurrency requirements of Chapter 163, Florida Statutes, or the 2010 Comprehensive Plan. In fact, the evidence proved that the Subject Property is in all likelihood consistent with the 2010 Comprehensive Plan.
Procedure.
Mr. Fregly filed the Application on or about August 20, 1990.
On November 26, 1990, a hearing was held to consider the Application before the Staff Committee. At the request of Mr. Fregly the hearing was continued until December 17, 1990, to give Mr. Fregly an opportunity to provide additional information concerning the costs incurred by him in the development of the Subject Property.
On December 17, 1990, the Staff Committee was reconvened. Mr. Fregly provided a map of the property and the Chronology.
By letter dated December 19, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Fregly that the Application had been denied.
By letter dated January 2, 1991, to Mr. Gumula, Mr. Fregly appealed the decision to deny his Application.
By letter dated January 11, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter.
By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on April 17, 1991.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.65(9), Florida Statutes (1989), and Leon County Ordinance No. 90-31 (hereinafter referred to as the "Ordinance").
The Ordinance.
Pursuant to Section 163.3167, Florida Statutes, Leon County was required to prepare a comprehensive plan governing the use and development of land located within Leon County. In compliance with Section 163.3167, Florida Statutes, Leon County adopted a comprehensive plan (hereinafter referred to as the "2010 Comprehensive Plan), which was submitted to the Department of Community Affairs for review on February 1, 1990.
Leon County adopted the Ordinance to insure that existing rights to develope property of Leon County 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 provisions of the 2010 Comprehensive Plan.
Section I of the Ordinance.
Pursuant to the Ordinance any Leon County property owner who believes that his or her property rights to develope property are vested and, therefore, believes that the property may be developed without complying with the 2010 Comprehensive Plan must file an application provided by Leon County within 120 days after July 16, 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. Section IV.C.2 of the Ordinance.
Applications to determine if development rights have vested are initially reviewed for technical correctness by the Tallahassee-Leon County Planning Department's (hereinafter referred to as the "Planning Department"), staff. Section III.C.1 of the Ordinance. Once the Application is accepted, the staff of the Planning Department makes the initial determination whether development rights in the property 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
County Attorney, the Director of Planning and the Director of Environmental Management is to be conducted within fifteen days after the Planning Department staff's decision. Section III.C.3 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.
An applicant is required to present all evidence in support of his or her application at the hearing before the Staff Committee. Section III.C.4 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.
If a hearing before the Staff Committee is waived or if the decision of the Staff Committee is adverse to the applicant, Section III.C.5 of the Ordinance provides for an appeal to a Hearing Officer. The nature of such an appeal is set out in Section III.C.5.b 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, nontechnical sense, which is merely an application to a higher authority for a review of the Staff Committee action taken.
In reviewing the action taken by the Staff Committee, Section III.C.5.c of the Ordinance provides the following:
If the Staff Committee record of their 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.
Section III.C.5.e and f 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.
Section III.C.5.g of the Ordinance governs a Hearing Officer's decision:
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. . . .
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.
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 evidence or the staff or Staff Committee decision departs from the essential requirements of law.
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 Staff Committee.
The Hearing Officer shall file his written determination on each appeal with the Director within thirty (30) calendar days of the date of the appeal hearing and a copy shall be provided to the City Clerk and the applicant.
. . . .
Section IV of the Ordinance governs the determination of whether an applicant's development rights in property have vested. Section IV.A of the Ordinance provides two situations where development rights will be considered vested: "common law vesting" and "statutory vesting."
In this matter Mr. Fregly has argued that his development of the Subject Property meets the definition of statutory vesting and, in the alternative, that his development rights in the Subject Property have vested pursuant to the common law vesting definition of the Ordinance.
"Statutory vesting" is defined as follows:
The right to develop or to continue the development of property shall be found to exist if: A valid and unexpired final development order was issued by the County prior to January 1, 1990, substantial development has occurred on a significant portion of the development authorized in a single final development order, and is completed or development is continuing in good faith as of July 16, 1990.
Each statutory vesting determination also requires that all material requirements, conditions, limitations, and regulations of the development order have been met.
The right to develop or to continue the development of a Planned Unit Development shall be found to exist if the Planned Unit Development was subject to a valid and unexpired final development order issued prior to July 16, 1990. However, Planned Unit Developments approved prior to February 1, 1990, must have commenced substantial development on the Planned Unit Development consistent with the Planned Unit Development
plan as approved and continued development in good faith as of July 16, 1990, in order to qualify for vesting under this subparagraph.
Section IV.A.2. of the Ordinance.
"Common law vesting" is defined as follows:
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 County, has made a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right to develop or to continue the development of the property.
Section IV.A.1.a of the Ordinance.
Mr. Fregly's Application; Statutory Vesting.
For purposes of statutory vesting, a "final development order" is defined in Section II.E. of the Ordinance as certain specific types of permits not applicable in this case, or as:
9. Any other development order which approved the development of land for a particular use or uses at a specified intensity of use and which allowed development activity on the land for which the development order was issued. [Emphasis added].
Mr. Fregly has argued that Permit 1017, and two Leon County Environmental Management Permits each constitute final development orders under Section II.E.9. of the Ordinance.
Mr. Fregly has also argued that "substantial development" of the Subject Property has occurred or is continuing in good faith. The terms "substantial development" are defined as:
H. Substantial Development. As used in this ordinance shall mean that all required permits to complete the development have been obtained; permitted clearing and grading has commenced on any significant portion of the development subject to a single final development order; and the actual construction of water and sewer lines, or streets, or the stormwater management system, on said portion of the development is complete or is progressing in a manner that significantly
moves the entire development toward completion.
Section II.H. of the Ordinance.
The weight of the evidence failed to prove by a preponderance of the evidence that the Staff Committee decision should be disturbed or that the Subject Property is statutorily vested. First, the permits that Mr. Fregly has relied upon do not constitute final development orders. Permit 1017 is merely a permit allowing the clearing and grading of the Subject Property. One of the environmental permits was obtained after the Staff Committee rendered its decision on the Application and an objection to its admissibility has been sustained. The other environmental permit was issued for a limited purposes.
Additionally, the weight of the evidence proved that the Subject Property has not been subject to substantial development. Mr. Fregly has owned the Subject Property since the 1970's but, since clearing, grading and filling the Subject Property in the early to middle 1980's, development has been limited to the Warehouse Acres. Development of the Subject Property has not been moving "the entire development toward completion."
Mr. Fregly's Application; Common Law Vesting.
Common law vesting under the Ordinance contains the same elements of proof as the doctrine of equitable estoppel. The doctrine of equitable estoppel has been described 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 such 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.
Smith v. Clearwater, 383 So.2d 681, 686 (Fla. 2d DCA 1980). See also, Key West
v. R.L.J.S. Corporation, 537 So.2d 641 (Fla. 3d DCA 1989); and Harbor Course Club, Inc. v. Department of Community Affairs, 510 So.2d 915 (Fla. 3d DCA 1987).
Mr. Fregly has argued that he has proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, common law vesting as defined in the Ordinance, exist in this case.
The action of Leon County that Mr. Fregly has suggested he relied on is the issuance of Permit 1017. The change in position or obligation and expense that Mr. Fregly has argued he incurred in reliance upon Leon County's actions consists of alleged costs of $160,000.00.
Based upon a review of the record and testimony presented at the hearings before the Staff Committee and at the supplemental hearing held before the undersigned on April 17, 1991, it is concluded that Mr. Fregly has failed to prove that the Staff Committee's conclusion that he did not prove that the elements of common law vesting apply to the Subject Property cannot be sustained by a preponderance of the evidence. The weight of the evidence supports the Staff Committee's decision that common law vesting has not been proved.
First, Leon County has made no representation to Mr. Fregly that the Subject Property could be developed in the manner that he intends to develope the Subject Property. Permit 1017 merely allowed Mr. Fregly to clear and grade the Subject Property in preparation for development. The issuance of Permit 1017 did not constitute a representation to Mr. Fregly that the law governing future development of the Subject Property would remain the same as the law in existence in 1980 when Permit 1017 was issued.
Secondly, the weight of the evidence failed to adequately prove what expenses were actually incurred by Mr. Fregly which were attributable only to the Subject Property. It cannot, therefore, be determined from the evidence presented by Mr. Fregly whether he "has made a substantial change in position or has incurred such extensive obligations and expenses" concerning the property at issue in this proceeding.
Finally, the weight of the evidence failed to prove the extent to which any expenses incurred in preparing the Subject Property for future development will be lost or that "it would be highly inequitable and unjust to destroy the right to develop or to continue the development of . . ." the Subject Property. The weight of evidence proved just the opposite: the proposed uses and intensity for the Subject Property are consistent with the 2010 Comprehensive Plan.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the denial of Mr. Fregly's Application by the Staff Committee
is AFFIRMED.
DONE and ENTERED this 29th day of May, 1991, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of 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 29th day of May, 1991.
APPENDIX
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Mr. Fregly's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 47.
Hereby accepted.
Hereby accepted, in part. The only government actions which are relevant in determining whether representations were made to Mr. Fregly are those of Leon County. Any other government actions which Mr. Fregly relied upon are not relevant.
4 48.
5 See 49.
6 50.
7 51.
8 52.
9 53.
10 1 and 4-7.
11 1.
12 3.
13 4-8.
14 39.
15 9.
16 10.
17 13.
18 17.
19 27.
An objection to the evidence that supports this proposed finding has been sustained.
Hereby accepted.
22 21.
See 19.
See 22.
25 See 31-38.
26 See 40.
27-9 See 31-38.
Not supported by the weight of the evidence.
See 1, 10 and 20-22. The weight of the evidence failed to prove that "construction" permits were obtained by Mr. Fregly.
32 See 10-11.
33 44.
34-35 Not relevant.
36 42-43.
37 Hereby accepted.
38-39 An objection to the evidence that supports these proposed findings has been sustained.
Leon County's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1.
2 2.
3 4-7.
4 10.
5 11.
6 13.
7 17.
8 19-22.
9 22.
10 23 and 20.
11 Hereby accepted, 31 and 33-36.
12 29.
13 40.
14 30.
15 Hereby accepted.
16 9 and 41.
17 42.
18 46.
19 44.
20 46.
21-25 Hereby accepted. The objection to the unsigned lease is overruled, however.
COPIES FURNISHED TO:
Patrick J. Phelan, Jr., Esquire Parker, Skelding, Labasky & Corry Post Office Box 669
Tallahassee, Florida 32302
Herbert W.A. Thiele, Esquire County Attorney
Leon County Courthouse Tallahassee, Florida 32301-1860
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 Appellant and Leon County and shall be by common-law certiorari to the Circuit Court of the Second Judicial Circuit.
| Issue Date | Proceedings |
|---|---|
| May 29, 1991 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 29, 1991 | DOAH Final Order | Development of real property not estop Leon County from requiring compliance with comprehensive plan. No statutory vesting either. |
