STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. PARTNERSHIP, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 91-1818VR

   )

   LEON COUNTY, )

   )

   Respondent. )

   )

   
   

   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 Petitioner, H.A.P. Partnership, has demonstrated that development rights in certain real property it owns have vested against the provisions of the 2010 Comprehensive Plan?

   
   

   PRELIMINARY STATEMENT

   
   

   An Application for Vested Rights Determination dated November 12, 1990, was filed with the Tallahassee-Leon County Planning Department on behalf of the Petitioner, H.A.P. Partnership. The Application for Vested Rights Determination was ultimately reviewed by the Respondent, Leon County, and was preliminarily denied. Notice of the preliminary denial was provided to the Petitioner by letter dated February 26, 1991. The Petitioner waived its right to a hearing before a Staff Committee and a formal hearing contesting the preliminary denial was requested. On or about March 19, 1991, Leon County referred the matter to the Division of Administrative Hearings for assignment of a Hearing Officer.

   
   

   Pursuant to written notice, a hearing was held on June 3, 1991. At the commencement of the hearing, which was conducted in accordance with Leon County Ordinance No. 90-31, the exhibits filed with Leon County and transmitted to the Division of Administrative Hearings with the original request for the assignment of a Hearing Officer were accepted into evidence.

   
   

   During the hearing, the Petitioner presented the testimony of Billy G. Smith and one exhibit. The exhibit was accepted into evidence. Leon County presented no witnesses or additional exhibits.

   
   

   The parties were informed that they could file a proposed final order before this Final Order was issued. The parties have filed proposed orders 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. The Petitioner, H.A.P. is a general partnership. The partners of the Petitioner are Billy G. and Jeanette Smith, Earl and Marie Womble, Mr. W. H. Sharp, Larry and Hilda Strom and Charles and Margaret Fulton. The Petitioner's address is 5174 Maddox Road, Tallahassee, Florida.

         
         

      2. In May, 1985, the Petitioner purchased approximately 3.1 acres of land, Tax Identification No. 21-04-20-409 (hereinafter referred to as "Parcel 1"). Parcel 1 is located at 4015 North Monroe Street, Leon County, Florida.

         
         

      3. At the time of purchase by the Petitioner, Parcel 1 was zoned R-3, single and two-family residential. Under R-3 zoning, a maximum of 7.2 units per acre of land could be constructed.

         
         

      4. Parcel 1 was purchased by the Petitioner from Billy Hatcher.

         
         

      5. In December, 1986, the Petitioner purchased an adjoining parcel of property consisting of approximately 3.5 acres, Tax Identification No. 21-04-20-

         408 (hereinafter referred to as "Parcel 2"). Parcel 2 is located at 3969 North Monroe Street, Leon County, Florida.

         
         

      6. Parcel 2 was zoned R-3 at the time of its purchase by the Petitioner.

         
         

      7. Parcel 2 was purchased by the Petitioner from Marie Bannerman.

         
         

   2. Development of the Property; Prior to the Petitioner's Purchase.

      
      

      1. The previous owner of Parcel 1, Billy Hatcher, had retained Poole Engineering to develop plans for site location on Parcel 1, of multi-family dwellings.

         
         

      2. A stormwater management permit, number 4241, was issued by Leon County to Mr. Hatcher on June 25, 1984.

         
         

      3. Mr. Hatcher also obtained a permit from the State of Florida Department of Transportation for a driveway onto Parcel 1 from North Monroe Street. The permit was approved June 12, 1984.

         
         

      4. No permits were obtained from Leon County or any other entity for Parcel 2 prior to the Petitioner's purchase of Parcel 2.

         
         

      5. The Petitioner relied upon the zoning on Parcel 1 and 2 and the permits that had been issued with regard to Parcel 1 at the time that the Petitioner purchased Parcel 1 and Parcel 2. Parcel 1 and 2 would not have been purchased otherwise.

         
         

   3. Development of the Property; Subsequent to the Petitioner's Purchase.

      
      

      1. In November, 1987, the Petitioner retained PVC Corporation to plan the development of Parcel 1 and Parcel 2 (hereinafter referred to as the "Property"), and to provide project management services for the development of multi-family residences on the Property.

      2. Consistent with R-3 zoning, PVC Corporation proposed a development consisting of 42 units on the 6.6 acres of the Property.

         
         

      3. In the Summer of 1989, the Petitioner sought a change in zoning for the Property. The Petitioner's request to have the Property zoned commercial was denied by Leon County.

         
         

      4. No permits were obtained from Leon County or any other entity for the Property subsequent to the Petitioner's purchase of the Property. Except for the stormwater management permit, no other permits were obtained from Leon County by the Petitioner and no request for building permits, plots or site plans were submitted to Leon County. Development of the Property was not commenced by the Petitioner.

         
         

   4. Alleged Change in Position or Obligations and Expenses Incurred.

      
      

      1. The total purchase price for Parcel 1 was $156,000.00. The total purchase price for Parcel 2 was $110,000.00.

         
         

      2. The Petitioner paid a total of $106,572.87 in interest on the Property, $15,109.67 in real property taxes and $2,300.00 in engineering fees.

         
         

      3. Vadden Shadden, M.A.I., appraised the Property on January 18, 1988, prior to the effective date of the 2010 Comprehensive Plan, at a value of

         $417,500.00. On November 3, 1990, Mr. Shadden appraised to value of the Property to be $41,750.00, taking into account compliance with the 2010 Comprehensive Plan.

         
         

   5. 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 Land Use.

         
         

      2. Property in the Lake Protection Land Use category may be developed by the construction of one dwelling unit for residential purposes per two acres, plus minor commercial uses (retail but not office uses) of up to 20,000 gross square feet.

         
         

      3. Site plan approval for all commercial property over five acres is required by the Leon County Subdivision Regulations.

         
         

   6. Procedure.

      
      

      1. On or about November 12, 1990, the Petitioner filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County.

         
         

      2. By letter dated February 26, 1991, from Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, the Petitioner was informed that the staff of the Tallahassee-Leon County Planning Department had recommended that the Application be denied. Mr. Gumula also informed the Petitioner that a hearing before a Staff Committee could be requested.

         
         

      3. Charles Fulton, general partner of the Petitioner, informed Leon County that the Petitioner waived its right to a hearing before the Staff Committee and requested a formal hearing before a Hearing Officer.

      4. By letter dated March 19, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to conduct a formal hearing in this case.

         
         

         CONCLUSIONS OF LAW

         
         

   7. 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").

         
         

   8. 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. 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.

   
   

6. 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.

   
   

7. 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.

      
      

8. 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."

   
   

9. In this matter the Petitioner has only argued in its Proposed Findings of Fact and Conclusions of Law that its development rights in the Property have vested pursuant to the common law vesting definition of the Ordinance. The

   Petitioner has not argued, nor did the evidence prove, that the Property meets the definition of "statutory vesting."

   
   

   "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.

   
   

   I. The Petitioner's Application.

   
   

10. 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).

    
    

11. The Petitioner has argued that it 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 only action of Leon County that the Petitioner has suggested it relied on is the issuance of the stormwater management permit on Parcel 1. Evidence was also presented at the hearing concerning zoning of the Property at the time of purchase by the Petitioners and the issuance of a permit by the Florida Department of Transportation. The changes in position or obligations and expenses that the Petitioner has argued it incurred in reliance upon Leon County's issuance of the stormwater management permit are "nearly $400,000.00 in costs and debt concerning the property . . . ." Page 5 of Petitioner's Proposed Findings of Fact and Conclusions of Law.

    
    

12. The Petitioner has failed to meet its burden of proof. First, the Petitioner failed to prove that there was any act or omission upon which the Petitioner could reasonably rely to conclude that it would be able to develop the property in the manner in which the Petitioner wants to develop the property. Property owners are always faced with the possibility that government may modify the manner in which property may be developed. In order to avoid such a possibility through the application of an estoppel argument, a property

    owner must prove that there was an act or omission of government indicating that the permissible uses of a particular piece of property will not be changed.

    Neither the zoning on the Property nor the issuance of the stormwater management permit constitute such an act or omission. The stormwater management permit did not indicate the nature or size of development which would be allowed on the Property. There was nothing in the stormwater management permit, or the application therefore, which indicated that the Property could be developed in any particular manner.

    
    

13. Reliance upon zoning, although not argued in the Petitioner's Proposed Findings of Fact and Conclusions of Law, 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).

    
    

14. Evidence was also presented concerning the issuance of a permit by the Florida Department of Transportation. The only acts or omissions upon which the Petitioner may have relied are those of Leon County. The permit issued by the Florida Department of Transportation is not, therefore, relevant to this proceeding.

    
    

15. Although the Petitioner proved that it relied upon the zoning of the Property, the stormwater management permit and the permit issued by the Department of Transportation, in incurring the expenses of purchasing the Property, the Petitioner has failed to prove that any substantial expenses related to a representation concerning the proposed development of the Property were incurred. In fact, the only expenses related to the development of the Property totalled $2,300.00 in engineering fees.

    
    

16. Based upon the foregoing and a review of the record and testimony presented at the hearing held before the undersigned on July 16, 1991, it is concluded that Petitioner has failed to prove that the conclusion of the staff of the Planning Department that the Petitioner 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 decision of the staff of the Planning Department 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 Petitioner's Application by Leon County is

AFFIRMED.

DONE and ENTERED this 26th 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 26th 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 1.

2 2-3 and 5-6.

3 2, 4 and 12.

4 12.

5 5-7 and 12.

6 12.

7 13-14.

8 19.

9 20-21.

10 19.

11 17-18.

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.

2-3 2 and 5.

4 2 and 4.

5 3.

6 9.

7 5 and 7.

8 6.

9 11.

10 13-14 and 19.

11 17-18.

Frank S. Shaw, III, Esquire 1300 Thomaswood Drive

Tallahassee, Florida 32312

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: 91-001818VR

Orders for Case No: 91-001818VR