On or about August 25, 1992, Hutson entered into a Purchase and Sale Agreement with the Applicants.
Pursuant to the Purchase and Sale Agreement, Hutson agreed to purchase the subject property from the Applicants subject to the following conditions, among others:
CONDITIONS AND CONTINGENCIES: This sale is contingent upon BUYER confirming that the project is financially feasible and all permits, and/or approvals for the development have been obtained and are currently valid, including, but not limited to:
All required permits and/or approvals from Clay County including compliance with the Comprehensive Plan, St. Johns River Water Management District, DER, and the U.S. Corp. of Engineers.
. . . .
It is understood by all parties that if any of the conditions or contingencies for development are not fulfilled or obtained, the BUYER may elect to receive the return of the binder deposit or at BUYER's option, BUYER may consummate this sale. . . .
BUYER will have a total of 60 days from the execution of this contract to satisfy the conditions and contingencies for its development.
Prior to entering into the Purchase and Sale Agreement, the President of Hutson, Donald P. Hinson, met with Philip L. Leary, Planning and Zoning Director for Clay County. The purpose of the meeting was to allow Mr. Hinson to insure himself that the project could be completed as planned. Mr. Hinson was "told by Mr. Leary that this project was vested and that [he] could rely on his representations to [him] that [they] could secure all necessary permits from Clay County if [they] purchased this project." Mr. Hinson relied upon Mr. Leary's representations and Mr. Leary was aware that Mr. Hinson would rely upon his representations.
At some time after the Purchase and Sale Agreement was entered into, Hutson requested that Clay County provide a letter to Hutson that the approved development of the subject property was vested if built before December 31, 1992.
The letter requested by Hutson was apparently not provided by Clay County because it was discovered that the Clay Comprehensive Plan did not provide that the vesting date for subject property development was December 31, 1992, instead of July 1, 1992 as approved by Clay County.
It was suggested by Clay County Planning staff that the Applicant apply for a Concurrency Reservation Certification in order to extend the time for infrastructure construction. The Applicants filed an application for a concurrency reservation certification in September, 1992.
The application for Concurrency Reservation Certification filed by the Applicants was a form application provided by Clay County. The form specifies, consistent with existing law as of September, 1992, that the retention basin for the development of the subject property must be designed based upon a twenty- five year frequency, twenty-four hour duration.
Or or about October 13, 1992, Clay County issued an Interim Concurrency Reservation Certification, Residential. Completion of infrastructure construction was required by the Certification to be completed by October 13, 1992.
Having satisfied itself that the project could be vested if infrastructure construction was completed by October 13, 1992, and that permits necessary for the proposed development had been issued, Hutson purchased the subject property from the Applicants on or about November 19, 1992.
The Applicants have also cited certain representations the Applicants made to Hutson concerning the development of the subject property. Those representations are not relevant. At issue are representations by Clay County to Hutson. Clay County cannot be estopped by actions or representations from the Applicants.
The Applicant's and Hutson's Detrimental Reliance.
The Applicants have suggested that they will suffer certain consequences if the subject equitable vested rights certificate is not issued. Those consequences are not, however, relevant. The Applicants are no longer the owners of the subject property and are, therefore, not entitled to a vested rights certificate. Additionally, in light of the conditions of the Purchase and Sale Agreement, it is not clear that the alleged consequences will occur if the certificate sought by the Applicants in this matter is not granted.
Hutson has incurred the costs of $367,414.21 for the installation of water, sewer, roads and drainage improvements to the subject property.
Rights That Will Be Destroyed.
Hutson, if required to build a twenty-five year, twenty-four hour retention basin, will be required to redesign, re-permit and re-plat the development.
Procedural Requirements.
The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22 have been met.
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 (1991), and Clay County Ordinance 92-18, as amended by Clay County Ordinance 92-22.
General Requirements of Article VIII of the Code.
Pursuant to Section 163.3167, Florida Statutes, Clay County was required to prepare a comprehensive plan governing the use and development of land located within Clay County. In compliance with Section 163.3167, Florida Statutes, Clay County adopted a comprehensive plan by Ordinance 92-03 on January 23, 1992 (hereinafter referred to as the "2001 Comprehensive Plan).
In order to insure that existing rights to develop property of Clay County property owners created by the Constitutions of the State of Florida and the United States, are not infringed upon by application of the 2001 Comprehensive Plan Clay County promulgated Article VIII of the Clay County Land Development Code (hereinafter referred to as the "Code"). The intent of Clay County in adopting Article VIII of the Code is included in Section 20.8-3(b):
(b) It is the intent of this Article to provide the standards and administrative procedures for determining whether a person has a vested right to undertake development activities, notwithstanding the fact that all or part of the development is not in accordance with the requirements of the Clay County 2001 Comprehensive Plan or land development regulations.
There are two general types of circumstances pursuant to which vested rights to develop property may be found under Article VIII of the Code: (1) "statutory vested rights" pursuant to Section 20.8-6 of Article VIII of the Code; and (2) "equitable vested rights" pursuant to Section 20.8-7 of Article VIII of the Code.
Applications to determine if development rights are vested are initially reviewed for technical correctness by the Clay County Planning and Zoning Department (hereinafter referred to as the "Planning Department"). Section 20.8-8(c)(1) and (d)(1) of Article VIII of the Code.
Once an application is accepted, the Director of the Planning Department makes an initial determination whether development rights in the property are vested if the application is based upon statutory vesting. Section 20.8-8(c) of Article VIII of the Code. If the Director's decision is adverse to the applicant, the applicant may appeal the Director's decision. Section 20- 8.08(c)(5) of Article VIII of the Code.
In the case of an application for equitable vesting no determination on the merits is made by Clay County. The Director of the Planning Department, after determining that application for equitable vesting is complete, is required to coordinate a hearing to consider the application. Section 20.8- 8(d)(3) of Article VIII of the Code. Hearings on equitable vesting applications are to be held within 60 days after the Director of the Planning Department determines that the application is complete. Id.
Pursuant to a contract entered into between Clay County and the Division of Administrative Hearings, Hearing Officers of the Division of Administrative Hearings may be authorized by Clay County to conduct hearings to consider appeals on applications of statutory vesting and to make the initial decision on applications for equitable vesting. Section 20.8-9(b) of Article VIII of the Code.
The manner in which hearings are to be conducted is governed by Section 20.8-10 of Article VIII of the Code. At the conclusion of a hearing, the Hearing Officer is required to issue a written decision approving, denying or approving with conditions the application. Section 20.8-10(a)(4) of Article VIII of the Code.
Equitable Vested Rights.
Section 20.8-7 of Article VIII of the Code governs the determination of whether an applicant's development rights in property have vested pursuant to the equitable vested rights definition of Article VIII of the Code. The criteria for determining whether property is equitably vested are as follows:
Criteria For Determining Equitable Vested Rights. Developments shall be deemed to have Equitable Vested Rights pursuant to this Section if it is shown by substantial competent evidence that a property owner or other similarly situated person:
has acted in good faith and in reasonable reliance;
upon a valid, unexpired act or omission of the government, and
has made such a substantial change in position or incurred such extensive obligations and expenses that it would be inequitable or unjust to destroy the rights such person has acquired.
Section 20.8-7(b) of Article VIII of the Code.
The River Bend Application.
Equitable vesting under Article VIII of the Code contains the same elements of proof required for the doctrine of equitable estoppel to apply. 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). The undersigned has been guided in this case by the case law applying the doctrine of equitable estoppel. See Section 20-8.10(a)(5) of Article VIII of the Code.
The Applicants have argued that they have proved by a preponderance of the evidence that all of the elements of equitable estoppel and, therefore, equitable vesting as defined in Article VIII of the Code, exist in this case.
Several actions of Clay County were raised initially by the Applicants as government action that the Applicants suggest they relied on.
The difficulty with the Applicants' initial argument is that the actions of Clay County which they relied upon relate the activities between the Applicants and Clay County. The Applicants, however, are not the property owners in this matter.
The property owner at this time is Hutson. It is, therefore, Hutson that must prove that it is entitled to an equitable vested rights certificate by its reliance upon Clay County representations to it. Hutson was not a party to the actions and representations of Clay County and the Applicants. Hutson, therefore, cannot "stand in the shoes" of the Applicants for purposes of the doctrine of equitable estoppel. See, Franklin County v. Leisure Properties, Ltd. 430 So.2d 475 (Fla. 1st DCA 1983); City of Parkland v. Septimus, 428 So.2d 681 (Fla. 4st DCA 1983); and Jones v. First Virginia Mortgage and Real Estate Investment Trust, 399 So.2d 1068 (Fla. 2d DCA 1981).
As noted in Leisure Properties, a "successor in interest" must show its own entitlement to the benefit of an estoppel:
We have neither been directed to nor found a case in which a successor in interest to the party claiming equitable estoppel has not independently in his own right incurred obligations or expenses in reliance on a representation of government in order to assert a successful equitable estoppel claim. A successor in interest must show his own entitlement to the benefit of an estoppel and may not make such a showing by merely purchasing property. . . .
Leisure Properties, 430 So.2d at 480.
As argued by the Applicants in their Memorandum of Law, a successor in interest may claim equitable estoppel if it demonstrates that the successor in interest made an independent material change in position in reliance on a valid, unexpired act of government. See Jones v. U.S. Steel Corporation, 382 So.2d 48 (Fla. 2d DCA 1980); and Gainesville v. Bishop, 174 So.2d 101 (Fla. 1st DCA 1965).
Based upon the Affidavits filed by the Applicants on May 6, 1993, Clay County made representations to Hutson concerning Hutson's ability to proceed with the development of the subject property. In good faith reliance upon those representations, Hutson proceeded to purchase the property and continue its development. Based upon these representations, it is concluded that the first two criteria for equitable vesting have been proved: Hutson acted in good faith and in reasonable reliance upon a valid, unexpired act or omission of Clay County.
The changes in position or obligations and expenses that Hutson has argued it incurred in reliance upon Clay County's actions consists of the expenditure of significant funds in furtherance of the development of the property. Hutson incurred expenses of $367,414.21 improving the property after purchasing it in reliance on Clay County's actions.
Finally, the evidence proved that Hutson, if required to build a twenty-five year, twenty-four hour retention basin, will be required to redesign, re-permit and re-plat the development.
In light of the expenditures of Hutson and the adverse impact of complying with the Clay County 2001 Comprehensive Plan, it is concluded that the third criterion for equitable vesting has also been proved: Hutson has made a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable or unjust to destroy the rights Hutson has acquired.
Based upon a review of the evidence presented at the hearing held before the undersigned on January 14, 1993, and as supplemented by the Applicants, it is concluded that the Applicants have proved that the elements of equitable vesting apply.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Application for Vested Property Certification for Claims
of Equitable Vested Rights Pursuant to Future Land Use Policy 1.8, Clay County 1991-2001 Comprehensive Plan dated December 13, 1992, and by Jerry Agresti on behalf of R.L. Johnson Construction Co. and Developers Three, Inc., is APPROVED. A Type 4 Vested Property Certificate should be issued to the Applicants.
DONE and ORDERED this 18th day of June, 1993, in Tallahassee, Florida.
LARRY J. SARTIN
Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1993.
Lynn A. Weber Senior Planner
All parties have the right to submit written exceptions to this Final Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this
Final Order. Any exceptions to this Final Order should be filed with the agency that will issue the final order in this case.
