STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD M. MITCHELL, )

)

Appellant, )

)

vs. ) CASE NO. 91-1416VR

)

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.

APPEARANCES

For Appellant: Thomas G. Pelham, Esquire

Holland & Knight

315 South Calhoun Street Barnett Bank Building Post Office Drawer 810

Tallahassee, Florida 32302

For Appellee: Herbert W.A. Thiele, Esquire

County Attorney

Leon County Courthouse Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Appellant, Edward M. Mitchell, 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 November 2, 1990, was filed with the Tallahassee-Leon County Planning Department by the Appellant, Edward M. Mitchell. 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. Mitchell by letter dated February 13, 1991. The denial was appealed by Mr. Mitchell by filing a Notice of Appeal dated February 22, 1991. On or about March 1, 1991, Leon County referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer.

Pursuant to an agreement of the parties, a hearing was held on May 24, 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 hearing before Leon County, 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. Mitchell testified on his own behalf and presented the testimony of Albert L. Buford and Richard Moore. Leon County presented the testimony of Martin Patrick Black.

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 fact. 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

1. The Property at Issue.

   
   

   1. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc.

      
      

   2. The following "additional provision" was included in the agreement entered into for the purchase of the Property:

      
      

      Buyer to have 30 days from date hereof within

      which to obtain such permits as he deems necessary.

      If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived.

      
      

   3. In 1980, the Property was zoned C-1, neighborhood commercial. Under C-

      1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface.

      
      

   4. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property.

      
      

   5. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation."

      
      

   6. On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove,

      however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan.

      
      

   7. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services.

      
      

   8. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described."

      
      

   9. The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore.

      
      

   10. On or about December 23, 1980, Mr. Mitchell purchased the Property for

       $44,211.92.

       
       

   11. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit.

       
       

   12. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property.

       
       

2. Development of the Property.

   
   

   1. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property.

      
      

   2. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved.

      
      

   3. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed.

      
      

   4. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet.

      
      

   5. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate.

      
      

   6. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property.

   7. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property.

      
      

   8. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan.

      
      

   9. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113.

      
      

   10. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property.

       
       

3. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell.

   
   

   1. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113.

      
      

   2. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell.

      
      

   3. The "value" of the work performed by Mr. Mitchell was in excess of

      $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell.

      
      

   4. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning.

      
      

4. Development of the Property under the 2010 Plan.

   
   

   1. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area.

      
      

   2. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space.

      
      

   3. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial

      space on the Property and the purchase of the abutting property would not have necessary.

      
      

5. Procedure.

   
   

   1. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County.

      
      

   2. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete.

      
      

   3. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested.

      
      

   4. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application.

      
      

   5. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991.

      
      

   6. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee.

      
      

   7. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied.

      
      

   8. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application.

      
      

   9. By letter dated March 1, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter.

      
      

   10. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on May 24, 1991.

       
       

       CONCLUSIONS OF LAW

       
       

6. Jurisdiction.

   
   

   1. 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").

      
      

7. The Ordinance.

   
   

   1. 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.

      
      

   2. Leon County adopted the Ordinance to insure that existing rights to develop 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.

      
      

   3. Pursuant to the Ordinance any Leon County property owner who believes that his or her property rights to develop 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.

      
      

   4. 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.

      
      

   5. 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.

      
      

   6. 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.

      
      

   7. 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.

      
      

   8. Section III.C.5.g 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 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 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 the appeal hearing and a copy shall be provided to the City Clerk and the applicant.

         
         

   9. 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 develop rights will be considered vested: "common law vesting" and "statutory vesting."

      
      

   10. In this matter Mr. Mitchell stipulated in his Proposed Final Order that the development of the Property in this case does not meet the definition of statutory vesting. Mr. Mitchell has argued that his development rights in the Property have vested pursuant to the common law vesting definition 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.

       
       

8. Mr. Mitchell's Application.

1. 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). Case law applying common law vesting may be relied upon for guidance in determining whether the development of the Property in this case is subject to common law vesting under the Ordinance. See Section III.C.5.g.(2) of the Ordinance.

   
   

2. Mr. Mitchell 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:

   
   

   1. Good Faith Reliance.

      
      

3. Mr. Mitchell has suggested that he has acted in good faith throughout his dealings and discussions with Leon County. Although the weight of the evidence did prove that Mr. Mitchell acted in good faith, the act or omission of Leon County upon which Mr. Mitchell acted in good faith is not sufficient to prove that common law vesting applies in this case, as discussed, infra.

   
   

   1. Acts or Omissions of Leon County Relied Upon.

      
      

4. The actions of Leon County that Mr. Mitchell has suggested he relied on include the following:

   
   

   1. The C-1, neighborhood commercial, zoning of the Property;

   2. Leon County's issuance of Permit 1113; and

   3. Negotiations and discussions with Leon County's Chief of Environmental Permitting as to how the Property could be developed to its greatest extent under C-1, neighborhood commercial, zoning and an 85% imperviousness requirement under Permit 1113.

   
   

5. The difficulty with Mr. Mitchell's position is that he essentially relied upon the zoning classification for the Property at the time of purchase. Reliance upon zoning alone is insufficient as a matter of law to conclude that common law vesting applies. Section IV.A.4 of the Ordinance provides that "[a] zoning classification or a rezoning does not guarantee or vest any specific development rights." This provision is consistent with 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. Corn, 427 So.2d 239 (Fla. 4th DCA 1983); and Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1978).

   
   

6. Essentially, what Mr. Mitchell proved is that he obtained assurances from Leon County before he purchased the Property that he could develop the Property to the maximum extent under the then current zoning. He made sure that under C-1, neighborhood commercial, zoning that the maximum of 69,000 square feet of commercial space allowed under the zoning applied to the Property. Mr. Mitchell also further assured himself that the zoning applied to the Property by obtaining Permit 1113. Therefore, Mr. Mitchell proved that the act of Leon County he relied upon was a representation that the Property was subject to C-1, neighborhood commercial, zoning and that the Property could be developed to the maximum extent under that zoning.

   
   

7. The suggestion that Mr. Mitchell consider using off-site stormwater retention was also no more that another indication from Leon County that the Property could be developed consistent with current zoning. It did not constitute a representation that the Property could be developed in a particular manner.

   
   

8. The cases cited by Mr. Mitchell, although of some support for his position, are distinguishable from this case because of one essential fact missing from this case: in all those cases the property owner informed the governmental body involved of the specific use to which the owner planned to put the property and the governmental body indicated that the specifically planned use would be allowed. In this case the weight of the evidence failed to prove that Mr. Mitchell ever informed Leon County as to how the Property would be developed other than to develop it consistent with current zoning.

   Consequently, all that Leon County ever represented to Mr. Mitchell before he purchased the Property or after was that he could develop the Property consistent with current zoning.

   
   

   1. Mr. Mitchell's Expenditures and Changes in Position.

      
      

9. The changes in position or obligations and expenses that Mr. Mitchell has argued he incurred in reliance upon Leon County's actions include the purchase price for the Property ($44,000.00), engineering services, obtaining a stormwater permit and extensive clearing, grading and filling, and construction of a drainage system (value in excess of $250,000.00) and the purchase of an adjacent parcel of property (at a cost of several thousand dollars).

   
   

10. The actual expenses Mr. Mitchell incurred for the purchase of the Property and the purchase of the abutting property were incurred solely in

    reliance upon Leon County's indication that the Property could be developed in accordance with the zoning of the property. If it is concluded that Leon County's actions were of the type upon which common law vesting may be found to exist, the expenses of acquiring the Property and the abutting property are sufficiently substantial to support Mr. Mitchell's position.

    
    

11. Mr. Mitchell failed to prove what the actual cost of the services (valued at $250,000.00) that Mr. Mitchell performed on the Property were. Instead, Mr. Mitchell offered proof concerning the value of those services. The Ordinance, however, does not contemplate taking into account expenses which a property owner would have incurred had the services been paid for. The Ordinance only allows actual expenditures to be considered.

    
    

12. Mr. Mitchell has also argued that the changes made to the contour of the Property are alone sufficient to conclude that he has "made a substantial change in position" which may be considered under the definition of common law vesting under the Ordinance. In support of this position, Mr. Mitchell has cited City of Lauderdale Lakes v. Corn, 427 So.2d 239, 243 (Fla. 4th DCA 1983). The Corn case is distinguishable from this matter. In Corn the property owner had dug canals and otherwise changed the contour of the property and had also expended substantial funds. In this case Mr. Mitchell only made changes to the contour of the Property required to make the Property suitable for any development. The changes Mr. Mitchell made are not sufficient to conclude that he has "made a substantial change in position" as required by the Ordinance.

    
    

    1. Destruction of Rights.

    
    

13. Mr. Mitchell has argued that he has demonstrated that "it would be highly inequitable and unjust to destroy the rights he has acquired" in the C-1, neighborhood commercial, zoning.

    
    

14. Under case law the type of rights that property owners had acquired consisted of the right to place a particular type of development on the property because of an act of a governmental body which the governmental body later attempted to completely take away.

    
    

15. In this case, Mr. Mitchell has proved that he was told through confirmation that the Property could be developed to the maximum extent allowed under the current zoning (69,000 square feet) classification and that he now is limited to 20,000 square feet. In the cases cited by Mr. Mitchell, the governmental unit involved indicated to the property owner that a particular type of development would be allowed on the property and later attempted to totally prohibit that type of development. In this case Mr. Mitchell has not been told that he cannot place a specific type of development on the Property which Leon County had earlier approved. Mr. Mitchell only proved that he now may be limited as to the size of the development which Leon County previously indicated through its zoning classification was acceptable for the Property.

    
    

16. Based upon the foregoing and a review of the record and testimony presented at the hearing before the Staff Committee and at the supplemental hearing held before the undersigned on May 24, 1991, it is concluded that Mr. Mitchell has failed to prove that the Staff Committee's conclusion that Mr. Mitchell did not prove that the elements of common law vesting apply to the 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.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the denial of Mr. Mitchell's Application by the Staff

Committee is AFFIRMED.

DONE and ENTERED this 31st day of July, 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 31st day of July, 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 Recommended 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.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 30.

2 35.

3 36.

4 37.

5 38.

6 39.

7 1 and 10.

8 1-2.

9 3-4.

10 5-6.

11 7, 10-11 and hereby accepted.

12 3 and 27-29.

13 See 13-14.

14 See 14-17.

15 17, 19 and 26.

16 20.

17 21. The weight of the evidence failed to prove that Mr. Mitchell relied upon Mr. Swanson's suggestion in performing all site work.

18 11 and 23.

1. See 24-25. The weight of the evidence failed to prove that "costs" in excess of $250,000.00 were incurred by Mr. Mitchell. What the services actually costs Mr. Mitchell was not proved.

2. 20 and see 26.

21 See 27-29.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1 and 26.

2 1.

3 1-2 and 4-5.

4 7.

5 13.

6 6, 8 and 14.

7 23 and 25.

8 13.

9 18.

10 3, 12 and 22.

11 27.

12 Hereby accepted.

13 28.

14 Hereby accepted.

Copies Furnished To:

Thomas G. Pelham, Esquire Post Office Drawer 810 Tallahassee, Florida 32302

Herbert W.A. Thiele, Esquire County Attorney

Leon County Courthouse Tallahassee, Florida 32301

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.

Docket for Case No: 91-001416VR

Orders for Case No: 91-001416VR